December 1982 

Commission Decisions 

12-8-82 

12-9-82 

12-15-82 

12-17-82 

MSHA v. Kocher Coal Company 

MSHA v. Alabama By-Products Corporation 

Joseph W. Herman v.· IMCO Services 

MSHA v. Cleveland Cliffs Iron Company 

Administrative Law Judge Decisions 

12-1-82 Consolidation Coal Company 

12-21-82 Consolidation Coal Company 

12-6-82 Consolidation Coal Company 

12-6-82 Allied Chemical Corporation 

12-7-82 M & H Rock., d/b/a Applegate Aggregates, 

12-8-82 Cambria Coal Company 

12-8-82 Ranger Fuel Corporation 

12-10-82 Medicine Bow Coal Company 

12-13-82 Garrett Contruction Company 

12-13-82 MSHA ex rel Phillip Cameron 

12-17-82 BCNR Mining Corporation 

12-22-82 Mathies Coal Company 

Inc. 

12-22-82 John Petersen, d/b/a Tide Creek Rock Products 

12-27-82 Amax Chemical Corporation 

12-29-82 Princess Susan Coal Company 

PENN 80-174-R 

BARB 76-153 

WEST 81-109-DM 

LAKE 80-129-M 

PENN 82-89-R 

PENN 82-89-R 

PENN 82-64-R 

WEST 82-97-RM 

WEST 81-272-M 

PENN 81-145-R 

WEVA 79-217-R 

WEST 82-153 

CENT 81-274-H 

WEVA 82-190-D 

PENN 82-83 

PENN 82-9-R 

WEST 80-457-M 

CENT 81-129-M 

WEVA 79-423-R 

Pg. 2123 

Pg. 2128 

Pg. 2135 

Pg. 2141 

Pg. 2147 

Pg. 2152 

Pg. 2153 

Pg. 2163 

Pg. 2165 

Pg. 2173 

Pg. 2198 

Pg. 2199 

Pg. 2202 

Pg. 2205 

Pg. 2218 

Pg. 2222 

Pg. 2241 

Pg. 2259 

Pg. 2263 
Commission Decisions 
DECEMBER 

The following cases were Directed for Review during the month of December: 

Secretary of Labor, MSHA v. Energy Fuel Nuclear, Docket No. WEST 81-385-M. 

(Judge Moore, November 10, 1982) 

David Hollis v. Consolidation Coal Company, Docket No. WEVA 81-480-D. 

(Judge Melick, November 12, 1982) 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket Nos. 

PENN 82-203-R, 82-204-R, 82-217. (Judge Merlin, November 24, 1982) 

Richard E. Bjes v. Consolidation Coal Company, Docket No. PENN 82-26-D. 

(Judge Koutras, November 23, 1982) 

Review was Denied in the following cases during the month of December: 

Clarence Justice v. McGinnis Coal Company, Docket No. KENT 82-68-D. (Judge 

Steffey, October 28, 1982) 

Elmer Harris v. McGinnis Coal Company, Docket No. KENT 82-7-D. (Judge Steffey, 

October 28, 1982) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KOCHER COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 8, 1982 

DECISION 

Docket Nos. PENN 80-174-R 

PENN 81-179(A) 

This case on interlocutory review involves a civil penalty proceeding arising under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (1976 & Supp. IV 1980). On March 1 9 1977 9 a 

fatal inundation-Occurred at Kocher Coal Company 1 s Porter Tunnel Mine. 

On February 20, 1980, after the Mine Safety and Health Administration 

(MSHA) completed its accident investigation, seven citations and orders 

were issued to the operator. A notice of contest of the citations and 

orders was filed. Order No. 0611706, the sole order presently at issue, 

alleged that the operator failed to drill boreholes required by 30 C.F.R. 

§ 75.1701. 

On July 17, 1981, the Secretary filed a request for settlement approval 

with the administrative law judge. Among other things, the Secretary sought 

vacation of Order No. 0611706. The judge denied the settlement motion on 

the basis of insufficient supporting information, and scheduled a hearing on 

the proposed settlement motion. At the hearing, counsel for both parties 

described the conditions leading to the citations and orders. Regarding 

the order at issue here, counsel for the Secretary stated that the MSHA 

inspector who had viewed the area concerned and the Solicitor did not 

believe Kocher violated section 75.1701 by failing to drill the required 

boreholes. He also stated, however, that the MSHA district manager who 

had issued the order still believed a violation occurred. 

On October 19, 1981, the Secretary filed a petition for penalty 

assessment for all seven citations and orders. In the petition, the 

Secretary reaffirmed his previous request for settlement approval, 

including the requested vacation of Order No. 0611706. 

On October 26, 1981, the administrative law judge issued an order 

approving settlement of six of the citations and orders. The judge 

disapproved, however, the Secretary's request to vacate the order 

concerning the boreholes and ordered the Secretary to produce the 

district manager at an evidentiary hearing. Subsequently, the operator 

filed a motion for judgment on the pleadings and a motion to withdraw 

2123 

82-12-5 
its notice of contest. The Secretary supported these motions, restating 

his position that no violation of section 75.1701 had occurred. The 

judge denied the operator's motions stating that because he would not 

grant the Secretary's motion to vacate the order, there were no grounds 

for Kocher's motions. The judge certified the case to the Commission 

for interlocutory review. In his certification, he observed that his 

"conclusion is not free from doubt." The Commission granted interlocutory 

review. 

The threshold question before us is whether the requested action 

pertaining to the subject order is appropriately treated as a motion 

for settlement approval or a motion to vacate the order. We conclude 

that the latter treatment is necessary. Although the request for 

vacation of the order was initially contained in a settlement motion, 

it is clear that in substance it was a request to vacate the order, 

Further, the subsequent pleadings filed by the parties clearly 

demonstrate that they seek vacation of the order rather than settlement, 

Also, Commission precedent requires that this type of request not be 

treated as a settlement. In Co-op Mining Co., 2 FMSHRC 3475 (December 

1980), we reversed a judge 1 s approval of a proposed settlement because 

the record established that no violation occurred. See also Amax Lead 

Company of Missouri, 4 FMSHRC 975 (June 1982). In present case, 

the Secretary has stated clearly that he does not believe a violation 

occurred. The operator concurs. Thus, there can be no settlement; the 

Secretary's request must be treated as a motion to vacate the order. 

The remaining issue is whether the judge erred in refusing to grant 

the Secretary's motion to vacate the order and in requiring the district 

manager's attendance at an evidentiary hearing. Preliminarily, we hasten 

to dispel any lingering notions on the part of the Secretary that the 

Commission and its judges are without authority to review the request 

made in this case. VJhen a notice of contest is filed, Commission 

jurisdiction attaches, 30 U.S.C. § 815(d). Therafter, any affirmance, 

vacation, or modification of the subject citation or order is accomplished only upon order of the Commission. Id.; Climax Molybdenum Co., 

2 FMSHRC 2748 (October 1980), pet. for~· filed, No. 80-2187, 10th Cir. 

(Nov. 6, 1980). 

The'Secretary's original request for settlement approval cited the 

testimony of an MSHA inspector, at an MSHA public hearing, that the 

operator had complied with the borehole regulation: 

Order No. 00611706 was vacated, since MSHA Inspector Charles 

Klinger testified at the public hearing that he had gone up 

to the old Weaver slope and observed the hole into it. He 

further testified that from his observations, the Respondent 

was complying with 30 C.F.R. § 75.1701 at that location (Tr. 

770, 772). It should be noted that the No. 15 breast was more 

than 200 feet from the Bush slope where the inundation water 

came from. Thus, boreholes were not required from the No. 15 

breast relative to the Bush slope. The only abandoned working 

within 200 feet was the Weaver slope, which had been cut into 

212'-i 
and drained. In view of Inspector Klinger's testimony, MSHA 

does not feel that a violation could be established • .L!JJ 

Further, the Secretary's petition for penalty assessment stated: 

The Solicitor's Office does not believe that the 

violation of 75.1701 ••• existed, Therefore, the 

Solicitor's Office with the approval of MSHA has 

determined that it will not prosecute this violation. 

(Emphasis added). We assume from this statement that the Solicitor 

conferred with MSHA before deciding not to prosecute the violation. The 

operator agrees with the Secretary's determination not to prosecute. 2/ 

In light of the reasons given by the Secretary on the record in support 

of the request to vacate the order, we hold that in these unique circumstances the judge erred in not granting the motion, 

We are cognizant of and fully appreciate the reasons behind the 

judge 1 s action. Counsel for the Secretary informed the judge that the 

district manager who issued the order still believed that a violation 

occurred, We note that conflicts among the opinions of various 

Secretarial personnel are not unprecedented occurrences, It is not 

clear from the record why the Secretary chose to air this particular 

dispute on the public record. Nevertheless, it is the responsibility 

of the Secretary to resolve his internal conflicts and he ultimately 

has done so in this case. 

We conclude that, insofar as our review of the action officially 

requested by the Secretary is concerned, i.e.~ vacation of the involved 

order, adequate reasons to support his request have been .stated on the 

record. 

1/ Shortly after the inundation, the Mining Enforcement and Safety 

Administration (MSHA's predecessor) convened a public hearing on the 

causes of the inundation. The inspector testified at this hearing. We 

note that Kocher's brief in support of the motion for settlement request 

also relies on Inspector Klingervs testimony at the public hearing. Kocher 

further states that "[N]o reason is advanced why the accuracy or credibility of this inspector should now be brought into question. No conflicting 

testimony was elicited." Brief at 5. 

J:./ The parties' agreement distinguishes this case from Climax Molybdenum 

Co., supra, where the operator objected to the Secretary's attempted 

unilateral vacation of the citations therein at issue. 

2120 
Accordingly, we grant the Secretary's motion to vacate Order No. 

0611706 and dismiss this case. 1 / 

i • : l / ktflW!Jbtt«.1 /vi , t p,g; ~ osemary MJ Collyer, Chairman 

Commissioner 

2128 
Distribution 

Mark N. Savit, Esq. 

Cotten, Day & Doyle 

1899 L Street, NW 

Suite 1200 

Washington, D.C. 20036 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

2 1 'J') _J~ 1..,, i 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 9, 1982 

Docket No, BARB 76-153 

IBMA 76-114 

ALABA11A BY-PRODUCTS CORPORATION 

DECISION 

This case arose under the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)("the Coal Act"). 1/ 

Alabama By-Products Corporation and the Secretary filed cross-appeals 

with the Department of Interior's Board of Mine Operations Appeals from 

a decision of an administrative law judge affirming in part and vacating 

in part a notice of violation alleging a violation of 30 C.F.R. 

§ 75.1725(a). !:._/ The cited standard provides: 

Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or 

equipment in unsafe condition shall be removed from service 

immediately. 

For the reasons that follow we modify the judge's decision and find a 

violation of the cited standard based on the totality of the circumstances 

at issue. 

The notice described the alleged violation of 30 C.F.R. § 75.1725(a) 

as follows: 

The no. 1 belt conveyor ••• was not being maintained in safe 

operating condition in that there were 13 defective bottom 

rollers also the conveyor belt was cutting into numerous 

bottom belt structures. The no. 1 belt conveyor ••• was 

removed from service. 

'};./ In this case, review was sought of an abated notice of violation. 

For the reasons stated in our decision in Eastern Associated Coal Corp., 

4 FMSHRC 835 (May 1982), we will review the merits of the notice at this 

time. For this reason, we need not address the arguments of the parties 

concerning whether the judge correctly concluded that the notice at issue 

could be reviewed because it was tantamount to a withdrawal order. 

2/ On March 8, 1978, this case was pending on appeal before the Board of Mine Operations Appeals. Accordingly, it is before the Commission 

for disposition. 30 u.s.c. § 961 (Supp. IV 1980). The Mine Safety and 

Health Administration (MSHA) has been substituted for its predecessor 

agency, the Mining Enforcement and Safety Administration. 

2123 

82-12-6 
The conditions were cited and corrected and the citation terminated on 

that same day. The issues before the Commission are: whether the cited 

standard is enforceable; whether the judge correctly interpreted the 

duties imposed by the standard; whether the judge's findings of fact concerning the conditions of the stuck rollers and belt are supported by the 

evidence; and whether the judge erred by holding that the notice was 

valid despite the inspector's failure to follow an internal MESA memorandum concerning the enforcement of section 1725. 

On appeal, as it did before the judge, Alabama challenges the 

validity of 30 C.F.R. § 75.1725 on two grounds. First, it argues that 

the standard is so ambiguously drafted and applied that it is invalid 

under the Coal Act. Second, it argues that the standard is unconstitutionally vague. The judge found that he lacked authority to entertain 

statutory or constitutional challenges to the validity of standards and 

therefore declined to pass upon Alabama's arguments. The Commission has 

held "that a challenge to the validity of a standard adopted under the 

1969 Coal Act can be raised and decided in an adjudication before the 

Commission.u Sewell Coal Co., 3 FMSHRC 1402, 1405 (June 1981). The 

Commission has also held that it has the power to determine the constitutionality of the provisions of the mine safety statute itself. 

Kenny Richardson 9 3 FMSHRC 8, 17-21 (January 1981), aff'd on other 

grounds, 689 F.2d 632 (6th Cir. 1982). In light of these conclusions? 

and for similar reasons, we conclude that the Commission has the 

authority to decide the challenges to the validity of the standard 

raised in this case. 

We first address the argument that the standard is unconstitutionally vague. Alabama argues that 30 C.F.R. § 75.1725 "offers no 

definite standard of conduct possible of ascertainment with certainty or 

clarity" and that it "fails to give fair notice of the nature of 

possible violations." The cited standard requires that machinery or 

equipment be maintained in "safe operating condition" and that such 

machinery immediately be removed from service if it is in an "unsafe 

condition." In order to pass constitutional muster, a statute or 

standard adopted thereunder cannot be "so incomplete, vague, iridefiriite 

or uncertain that men of common intelligence must necessarily guess at 

its meaning and differ as to its application. 11 Connolly v. Gerald 

Constr. Co., 269 U.S. 385, 391 (1926). Rather, "laws [must] give the 

person of ordinary intelligence a reasonable opportunity to know what is 

prohibited, so that he may act accordingly." Grayned v. City of Rockford, 

408 U.S. 109, 108-109 (1972). 

Therefore, under 30 C.F.R. § 75.1725(a) in deciding whether machinery 

or equipment is in safe or unsafe operating condition, we conclude that the 

alleged violative condition is appropriately measured against the standard 

of whether a reasonably prudent person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts 

peculiar to the mining industry, would recognize a hazard warranting corrective action within the purview of the applicable regulation. See, e.g., 

Voegele Co., Inc. v. OSHRC, 625 F.2d ~075 (3d Cir. 1980). Through application of this test to the facts of a particular case, due process problems 

stemming from an operator's asserted lack of notice are avoided. Thus, we 

reject Alabama's argument that 30 C.F.R. § 75.1725(a) is unconstitutionally 

2128 
vague on its face. As discussed further infra, applying the above 

standard to the facts presented in the case before us, we find no 

merit in the operator's contention that it lacked fair notice of the 

nature of the violation with which it was charged. 

We likewise reject the argument that the standard is so ambiguous 

and overbroad that it is void under the statute. Broadness is not always 

a fatal defect in a safety and health standard. Many standards must be 

"simple and brief in order to be broadly adaptable to myriad circumstances." 

Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). See Ryder Truck 

Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). We conclude 

that the operator has not established that the Secretary exceeded his 

rulemaking authority under the Coal Act in adopting the general standard 

at issue requiring that machinery and equipment be maintained in 11 safe" 

condition. 

The next issue is whether the judge correctly interpreted the duties 

imposed by 30 C.F.R. § 75.1725(a). The judge held the standard imposes 

three separate duties: (1) a duty to maintain the equipment in safe operating condition; (2) a duty to remove unsafe equipment immediately; and (3) a 

duty to repair the equipment if the operator intends to continue to use the 

equipment. In Peabody Coal Co., 1 FHSHRC 1494 (October 1979), we construed 

an identical standard, 30 C.F.R. § 77.404(a), as having two requirements. 

We stated: 

The regulation imposes two duties upon an operator: (1) to 

maintain machinery and equipment in safe operating condition, 

and (2) to remove unsafe equipment from service. Derogation 

of either duty violates the regulation. 

1 FMSHRC at 1495. We now hold that the terms of the cited standard do 

not impose a duty requiring that unsafe machinery or equipment removed 

from service be repaired before abatement is accomplished. Rather, once 

unsafe equipment is removed from service abatement is completed. If such 

equipment is returned to service without repair, an additional, separate 

violation of the standard would occur. Accordingly, we hold the judge 

erred by imposing a separate duty to repair the equipment as a condition 

precedent to abatement. 

We now turn to an examination of the judge's findings concerning 

whether a violation occurred. The notice of violation issued by the 

inspector stated that the "belt conveyor ••• was not being maintained 

in safe operating condition in that there were 13 defective bottom 

rollers also the conveyer belt was cutting into numerous bottom belt 

structures." The judge found a violation based upon the latter condition, but not the former. In our view, in the circumstances of this 

case, the judge erred in treating the situation described as constituting 

discrete violative conditions. Rather, based upon the wording of the 

notice of violation and our review of the entire record, including the 

inspector's testimony at the hearing, we conclude that the allegation of 

the unsafe condition in this case was based on the combination of the 

2130 
frozen rollers and the belt running out of train cutting into belt 

support structures. }_/ 

We further conclude that the conditions described in the record 

establish a violation of 30 C.F.R. § 75.1725. The operator does not 

dispute that the 13 bottom rollers were frozen and that the belt running 

out of train was cutting into numerous belt structures. Thus, the 

central issue is whether an unsafe condition existed. The inspector 

testified that a belt running over a frozen roller will produce friction, leading to a heat source. He also believed that coal residue on 

the belts could rub on and accumulate around a frozen roller. He 

further testified that friction and heat would be caused by the belt 

cutting into the belt structures. The judge found, and we agree, that 

the belt running out of train could cause coal to fall off and accumulate. The inspector's testimony regarding the friction sources and 

attendant heat build-up was not effectively rebutted by the operator. 

We conclude that a reasonably prudent person familiar with the 

factual circumstances surrounding the hazardous condition alleged here, 

including any facts peculiar to the mining industry, would recognize 

that the cited equipment was in an unsafe condition. The danger posed 

in underground coal mining by a friction source that will lead to a heat 

buildup in an area where coal accumulations could occur is obvious. 

Where such dangers are present due to defects in the operating condition 

of equipment, that equipment cannot be considered in safe operating 

condition. In light of the nature of the danger, the evidence relied 

upon by the operator concerning other conditions in the area, i.e., that 

the belt was wet and fire-resistant, the area was adequately rock-dusted 

and ventilated, and coal accumulations were not then present, is not 

controlling as to whether an unsafe condition existed. Rather, these 

factors are appropriately considered in determining the "gravity" of the 

violation when a penalty is assessed. 30 U.S.C. § 820(i). As the Tenth 

Circuit has observed in a decision upholding a violation of the identical standard at issue here: "It is clear that Congress intended the 

Mine Act to both remedy existing dangerous conditions and prevent dangerous situations from developing." Mid Continent Coal & Coke Co. v. 

FMSHRC, No. 792271, 10th Cir., Sept. 24, 1981; 2 BNA MSHC 1450. In the 

present case, upon observing the defective equipment at issue, it was 

not necessary for the inspector to wait until the feared hazard fully 

materialized before directing remedial action. 

The final issue in this case involves an internal MESA memorandum 

concerning the enforcement of 30 C.F.R. § 75.1725. That memorandum 

stated: 

3/ Both parties agree with this view of the case. In its brief to us, 

the operator states that the "belt allegedly running out of train was 

simply a condition which resulted from the frozen rollers." Br. at 15. 

The operator further states that "[t]here was no evidence ••• that the 

frozen rollers caused the belt to run out of train simply because it was 

obvious that this had occurred." Br. at 14 n. 15. Similarly, in its 

brief MSHA states that "the condition.of the thirteen defective belt 

rollers, coupled with the belt running out of train and cutting into 

numerous belt structures, is unsafe according to a proper construction 

of 30 C.F.R. § 75.1725." Br. at 16 (emphasis added). 

213.i 
••• When an operator is made aware that equipment or machinery 

is in an unsafe operating condition, by any person, the action 

of the operator immediately following notification determines 

whether or not a violation occurs. If the faulty equipment is 

immediately removed, there is no violation. If the operator 

continues to use the faulty equipment, he is in violation. !:._/ 

(Emphasis added.) 

The operator notes that the Secretary acknowledges that the directive 

was not followed in the present case. Had the memorandum been followed, 

the notice of violation would not have been issued since the operator 

immediately removed the belt conveyor from service. 

We agree with the judge~s holding that the memorandum's interpretation of the standard is contrary to the plain language of the standard. 

We hold that the legal effect of the memorandum is similar to that of 

the Secretary's enforcement manuals discussed in King Knob Coal Co., 

3 FMSHRC 1417 (1981): 

Regarding the Manual~s general legal status, we have previously 

indicated that the Manual's "instructions are not officially 

promulgated and do not prescribe rules of law binding upon 

[this Commission]." Old Ben Coal Company, 2 FMSHRC 2806, 2809 

(1980). In general, the express language of a statute or 

regulation "unquestionably controls" over material like a 

field manual. See H.B. Zachry v. OSHRC, 638 F.2d 812, 817 

(5th Cir. 1981) •••• This does not mean that the Manual's 

specific contents can never be accorded significance in 

appropriate situations. Cases may arise where the Manual or 

a similar MSHA document reflects a genuine interpretation or 

general statement of policy whose soundness commends deference 

and therefore results in our according it legal effect. This 

case, however, does not present that situation. 

3 FMSHRC at 1420 (emphasis added). Accordingly, we accord no legal 

effect to the memorandum and affirm the judge's holding that the failure 

to follow it does not invalidate the notice. 

!:_/ Internal agency directive from Jo~n Crawford, then Assistant 

Administrator for the Coal Mine Health and Safety Division of MESA 

(July 14, 1975). 

2132 
For the forego reasons, the judge's decision is modified and 

the notice alleging a violation of 30 .F.R. § 75.1725(a) is affirmed. 

,missioner 

A. E)f ~s.in~mis~ioner 

~{~ L Clair Nelson Coinmissioner 

\' 

2133 
Distribution 

J. Fred McDuff, Esq. 

Fournier J. Gale, Esq. 

Alabama Ev-Products Corporation 

P.O. Box 10246 

Birmingham, Alabama 35202 

Michael XcCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Harrison Combs, Esq. 

lJM\./A 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge George Koutras 

Fed. Mine Safety & Health Rev. Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

213 11 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOSEPH W. HERMAN 

v. 

IMCO SERVICES 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

December 15, 1982 

Docket No. WEST 81-109-DM 

DECISION 

This case arises under section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 ~~· (1976 & Supp. IV 1980). 

In his decision below, the administrative law judge held that the 

discrimination complaint giving rise to this proceeding was not timely 

filed and, therefore, he dismissed the complaint. 4 FMSHRC 1540 

(August 1982)(ALJ). The judge proceeded, however, to discuss and 

make further findings concerning the merits of the complaint. For 

the reasons that follow, we affirm the dismissal. Accordingly, we 

find it unnecessary to consider or address the question of whether 

a violation of section lOS(c) occurred. 

Complainant Joseph W. Herman was employed as a senior project 

engineer at IMCO Services's Mountain Springs Plant near Battle Mountain, 

Nevada. Herman's duties encompassed field engineering and supervision 

of the construction of facilities at the Mountain Springs Plant to 

increase the production of barite. 1/ In the period of March-April 

1979, work on the expansion project-had progressed to the stage where 

a barite storage bin was to be erected. Based on his experience and 

information available to him, Herman believed that a serious safety 

problem existed due to the design of the bin and its intended use. 

To put it simply, Herman believed that the weight of the bin itself, 

the weight of the amount of barite that could be stored in the bin, 

and the relevant stress factors to which the structure would be 

];./ From the record it appears that IMCO's operations involved three 

interrelated stages and facilities. Barite ore was extracted from an 

open pit mine, subjected to a process to up-grade the ore, and then 

further processed through a grinding operation. There is no dispute 

that the facility at which Herman worked falls within the coverage 

of the Mine Act. As an employee working at this facility, Herman 

was a "miner" within the meaning of the Act. 30 u.s.c. § 802(g). 

')1 ')-

-~ .l u 0 

82-12-7 
subjected, would prove too great a load for the bin's designed support 

system, resulting in a collapse of the entire structure. 2/ 

The evidence also indicates that, at the time that the expansion 

project had progressed to the barite bin erection stage, IMCO was 

concerned with cost-overruns and budget constraints. In any event, 

on or about April 9, 1979, Herman and his superior in Houston, Texas 

communicated by telephone. Whatever else was said in this conversation, it is at least clear that Herman WqS advised that his phase of 

the project was to be halted and that he and others involved would 

be terminated. ]../ 

On April 11, 1979, representatives of MSHA visited the site, at 

the request of Herman, to discuss the storage bin project. Other 

company personnel attended this meeting. 4/ As a result of this 

meeting, a report w~s prepared by MSHA 1 s Denver Technical Support 

Center concerning the bin design. This report concluded that on the 

basis of available information the storage bin should be redesigned. 

The report, however, was not issued until after Herman had been 

terminated. 

Section lOS(c)(l) of the Mine Act, 30 U.S.C. § 81S(c)(l), in 

pertinent part provides: 

No person shall discharge or in any manner discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere with the exercise of the statutory rights of 

any miner ••• because such miner ••• has filed 

or made a complaint under or related to this 

Act, including a complaint notifying the operator 

or the operator's agent ••• of an alleged danger 

or safety or health violation in a ••• mine, or 

because such miner ••• has instituted or caused to 

be instituted any proceeding under or related 

to this Act ••• or because of the exercise of 

such miner ••• of any statutory right afforded by 

this Act. 

2/ The record reveals that Mr. Herman's concerns were well-founded. 

Each of IMCO's witnesses testified that they became aware of the 

problem with the bin design. Although memories were vague as to 

exactly how each of the witnesses became aware of the problem, it is 

clear that the problems were known to these company personnel while 

Herman was still employed by IMCO. · 

3/ When Herman's termination actually became effective is unclear. 

He continued working to phase out construction until April 13, 1979. 

He may have been carried on the payroll until April 20th. 

!±/ Precisely when company personnel who did not attend the meeting 

learned that the meeting was to occur·,,, or had occurred, is disputed. 

In any event, shortly thereafter it was common knowledge that MSHA 

became involved at Herman's request. 

2130 
Section 10S(c)(2) of the Act, 30 U.S.C. § 815(c)(2), further provides: 

Any miner ••• who believes that he has been discharged, interfered with, or otherwise discriminated 

against by any person in violation of this subsection 

may, within 60 days after such violation occurs, file 

a complaint with the Secretary [of Labor] alleging 

such discrimination. **** 

At the hearing, after Mr. Herman had completed presentation of 

his case-in-chief, counsel for IMCO made a motion to dismiss Herman's 

complaint on the basis that it was not filed under section 

105(c)(2). Herman made a statement in opposition and testified 

against the motion. The administrative law judge took the motion 

under advisement and IMCO proceeded with its case, In his final 

decision the judge addressed the timeliness issue and concluded 

that Herman's complaint should be dismissed. We agree, 

Section 105(c)(2) of the Mine Act, quoted previously, requires 

that complaints of discrimination under the Act be filed "within 

60 days after such violation occurs" (emphasis added). The legislative history relevant to this filing provision states: 

While this time-limit is necessary to avoid stale 

claims being brought, it should not be construed 

strictly where the filing of a complaint is 

delayed under justifiable circumstances. Circumstances which could warrant the extension of the 

time-limit would include a case where the miner 

within the 60-day period brings the complaint to 

the attention of another agency or to his employer, 

or the miner fails to meet the time limit because 

he is misled as to or misunderstands his rights 

under the Act. 

S. Rep. 95-181, 95th Cong., 1st Sess. 36 (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 624 (1978) (1'Legis. Hist.") (emphasis added). 

The events that form the basis of Herman's complaint of discrimination occurred in April 1979. However, the first action that Herman 

took relative to filing any complaint concerning those events did not 

occur until March 3, 1980. 2_1 Thus, the discrimination complaint in 

2_1 On this date Herman apparently mailed a letter to the Nevada 

Employment Security Department. Although this letter is not in evidence, a March 11, 1980, letter from the Nevada Department of 

Occupational Safety and Health to Herman, informing him that his 

inquiry had been referred to it, is o.f record. In this letter, , , 

(Footnote continued) 
this case was filed ll months after the incidents complained of had 

occurred, and 9 months after the expiration of the time period specified 

in the statute regarding the filing of such complaints. 

We conclude that the record does not reveal 11 justif iable 

circumstances" for this extraordinary delay. Legis. Hist. at 624. In 

essence, Mr. Herman's testimony and statements of record indicate that 

he did not file any complaint before March 1980 simply because he did 

not want to do so. He had been more concerned with the safety of the 

bin than with his discharge. However, after mulling his situation over 

for some time (during which time he allegedly discussed his situation 

with various unidentified safety officials), and after he "kind of took 

a walk in the park one night" (Tr. 152), he concluded that he had been 

wronged and that he desired to be vindicated. Consequently, in March 1980, 

Herman finally took his first official step by complaining to the Nevada 

Employment Security Department. 

We conclude on the basis of the entire record that Herman's prolonged hesitation in filing a discrimination complaint cannot be 

attributed to his being misled as to or a misunderstanding of his 

rights under the Act. Rather, the record reveals that he had direct 

contact with MSHA officials during the period that the events now complained of occurred, as well as after his termination. Quite simply, he 

had abundant opportunity and the ability to go forward with his complaint 

in a more timely fashion, if he had then desired to do so. Although the 

record reveals confusion on Herman's part concerning the procedure for processing his complaint once it had been filed, these misunderstandings are 

not relevant to the reasons for his delay in filing a complaint and, hence, 

they do not excuse the late-filing. 

The placement of limitations on the time-periods during which a 

plaintiff may institute legal proceedings is primarily designed to assure 

fairness to the opposing party by: 

fn. 5/ continued 

Nevada OSHA forwarded an employee complaint form to Herman. Herman 

subsequently filed a completed complaint with Nevada OSHA, dated April 4, 

1980. By letter dated April 29, 1980, Herman was informed that this 

complaint had been referred to the U.S. Department of Labor's Mine Safety 

and Health Administration (MSHA). This letter notified Herman that an 

MSHA special investigator had been appointed. (An April 25, 1980 letter 

from the special investigator to Herman is also in evidence.) By letter 

dated September 3, 1980, MSHA informed Herman that it had determined that 

illegal discrimination under the Act had not occurred. See 30 u.s.c. 

§ 815 (c) (2) & (3). Herman thereafter .. instituted this proceeding before 

the Commission in his own behalf pursuant to 30 U.S.C. § 815(c)(3). 
••. preven surprises through the revival of claims 

that have been allowed to slumber until evidence has 

been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just 

claim it is ust not to put the on notice 

to defend within the period of limitation and that 

the right to be free of stale claims in time comes to 

prevail over the right to prosecute them. 

Burnett v. N.Y. Central R.R. Co., 380 U.S. 424, 428 (1965), quoting 

R.R. Telegraohers v. 321 U.S. 342, 348-49 ( 94 \k find that 

the record in the present case underscores the above concerns. Al 

the operator was able to testimony and documentary evidence i::i 

support of its position, the record is replete with examples of faded 

memories as well as the unavailability of potential relevant evidence, 

To be balanced against this policy of repose, however, are considerations of whether "the interests of justice vindication of 

plaintiff's rights" in a particular case. Burnett 380 U.S. 

at 428. As discussed previously, we do not usti ia le circunstances excusing Herman's egregious delay in instituting this 

For these reasons, we affin:i the dismissal of the car.plaint 

untimely filed. 6/ 

~~Commissioner , I 

' i . ·/ 

:ciaiNel;on, Commissioner 

6/ In light of our conclusion we do not reach the judge's "alternative" 

discussion of the merits of the discrimination claim. Because the judge 

had decided that the complaint must be dismissed, his further discussion 

regarding whether under the circumstances discrimination occurred constitutes unreviewed dicta. Also, in light of our decision, other 

motions of the operator are denied. 

2138 
Distribution 

Richard 0. Kwapil, Jr., Esq. 

Woodburn, Wedge, Blakey and Jeppson 

Sixteenth Floor 

First Interstate Bank Bldg. 

One East First Street 

Reno, Nevada 89505 

Mr. Joseph Herman 

3525 San Mateo Avenue 

Reno, Nevada 89509 

Administrative Law Judge John Morris 

Fed. Mine Safety & Health Rev. Commission 

333 West Colfax, Suite 400 

Denver, Colorado 80204 

21 "0 ..lll 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 17, 1982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Vo 

CLEVELAND CLIFFS IRON COMPAi.'iJY 

UNITED STEELWORKERS OF AMERICA, 

DISTRICT NO. 33 

Intervenor 

Docket No. LAKE 80-129-M 

DECISION 

This penalty case arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. IV 1980), and involves 

the interpretation and applicati~of 30 C.F.R. § 55.12-16. The standard 

provides in pertinent part: 

Mandatory. Electrically powered equipment shall be 

deenergized before mechanical work is done on such 

equipment, ••• 

- The administrative law judge concluded that the operator, Cleveland Cliffs 

Iron Company ("CCI"), violated the standard.]:./ We granted CCI's petition 

for discretionary review and heard oral argument. For the reasons that 

follow, we affirm. 

The facts are undisputed. On May 19, 1979, an electrical apprentice 

was electrocuted while he and two other apprentices were rehanging highpressure sodium light fixtures in the high bay of CCI's Empire Mill. After 

an investigation of the accident, MSHA ~ssued a citation which stated: 

Apprentice electricians were assigned to relocate 

1000 watt, High Pressure Sodium "Halophane Prismpack11 

lights, powered by 480 volts Alternating Current, on 

the ceiling above the primary grinding section in the 

concentrator. The lighting equipment was energized 

during installation •••• 

1/ The judge's decision is reported'C}t 3 FMSHRC 2324 (October 1981) 

(ALJ). 

214.i 

82-12-8 
The light fixtures were hung on ceiling I-beams located approximately 80 to 100 feet above the floor of the mill. The operator had 

assigned the apprentices to move the light fixtures from one I-beam to 

another. The employees used an overhead crane and trolley assembly as a 

work platform. They placed an aluminum ladder on the crane trolley so 

they could reach the fixtures and electrical outlets ~uring relocation, 

The employees relocated the first light in the following manner: 

They moved the crane into position under the electrical outlet, put 

the ladder up against an I-beam to reach ·the plug, and unplugged the 

light. They took the ladder down, turned it 180 degrees and moved the 

crane trolley to a position where the ladder could reach the light 

fixture, They took the light fixture down, replaced its electrical 

cord with a longer cord, and wired the three-prong twist lock plug from 

the old cord onto the new, They then rehung the light fixture on another 

I-beam 8 to 10 feet away from its original location" Once more they 

turned the ladder 180 , moved the crane trolley back underneath 

the electrical outlet, put the ladder back up, and plugged the light fixture with its new longer cord back into the electrical outlet, 

In relocating the second light fixture, the employees changed the 

procedure to eliminate one of the 180-degree rotations of the ladder, 

because they believed these rotations on the elevated trolley were the 

most dangerous part of the operation. Under the new procedure, the 

fixture remained energized at several points during the process. Whe~ 

the employees took the fixture down from its hanger, they did not unplug 

it. After the light fixture was down, they unplugged it, replaced the 

cord with a longer one, reattached the plug, and plugged the fixture 

back into the energized 480 volt outlet. The employees then rehung 

the energized fixture in its new location. The relocation of the second 

fixture was accomplished without incident, 

The fatal accident occurred as the employees were relocating the 

third light fixture, using the same procedure they had already used for 

the second. They removed the fixture from its hanger while energized, 

then unplugged it. They replaced the cord with a longer one, and wired 

the three-prong plug from the old cord onto the new. Before rehanging 

the fixture they replugged it into the energized 480 volt electrical 

outlet. As one of the employees climbed the ladder to rehang the 

energized fixture, he grasped the conduit of the fixture (a pipe-shaped 

stem) and received a fatal electric shock. 2/ 

The parties did not dispute before the judge that the second and 

third fixtures were energized at times during their relocation. In 

concluding that CCI violated the standard in connection with the 

];} The shock occurred because the three-prong plug had been miswired. 

Once the miswired plug was inserted into the outlet, the conduit had become 

energized. 

2142 
relocation of the lights, the judge determined that the light fixtures 

were "electrically powered equipment" and that the employees' handling, 

hoisting, and hanging the fixtures constituted "mechanical work." 

Before us, CCI makes two major arguments. First, it argues that the 

words 11 electrically powered equipment 11 and "mechanical work" indicate 

that the standard does not apply to the light fixtures involved in this 

case, but rather only to electrical equipment with moving parts. Second, 

the operator contends that the employees' relocation of the lights was 

not 11mechanical work." 3/ We do not agre_e. 

CCI's first argument amounts to a rewriting of the standard to 

apply to "electrically powered mechanical equipment. 11 We must construe 

the standard as it is written; it uses the broad term "electrically 

powered equipment." "Mechanical" modifies "work," not "equipment." We 

accordingly reject CCI's narrow reading of this phrase. As to the light 

fixtures involved in this case, the judge correctly determined that they 

are "equipment" within the ordinary meaning of that word. The phrase 

"electrically powered" clearly includes equipment, such as the fixtures 

here, whose source of power is electricity. Therefore, we conclude that 

these 1000-watt high-pressure sodium light fixtures, powered by 

electricity rated at 480 volts, are "electrically powered equipment" 

within the meaning of the standard. 

Finally, we consider whether the work involved in the relocation 

and installation of the fixtures was "mechanical work." The lights 

involved in this case were fixed, carried high voltage, and were located 

80-100 feet above the floor. The light fixtures were large, The screw 

fittings and conduit assemblies were about five feet long. Taking the 

fixtures down, handling them, and rehanging them was relatively 

difficult and complex work given the nature of the job and the way it 

was necessary to accomplish the job. We conclude this work comes within 

the ordinary meaning of the words "mechanical work." We do not accept 

CCI's argument that if these activities constitute mechanical work, the 

standard would apply to the ordinary use or handling of energized portable 

electric equipment. Neither ordinary use, nor mere touching alone, nor 

portable equipment is involved here. Therefore, we conclude that under 

the facts of this case, mechanical work was being done on the light fixtures. 

3/ CCI also argues that this standard does not protect against shock 

hazards, but only against mechanical hazards caused by equipment with 

moving parts. The plain language of the standard, however, imposes no 

such limitation. Where specific hazards are mentioned in other parts of 

section 55.12, they are shock or burn hazards. Such hazards are among 

the most common associated with equipment using electricity. 

2143 
In sum, CCI's employees performed mechanical work on electrically 

powered equipment while the equipment was energized. Accordingly, we 

affirm the judge's conclusion that the operator violated 30 C.F.R. 

§ 55.12-16. 4/ 

L. Clair Nelson, Commissioner 

4/ At one point in his decision, the judge stated: "The violation 

coupled with the accidental miswiring of the plugs, resulted in the 

••• fatal electrical accident •••• " 3 FMSHRC at 2337. We note that 

the miswiring did not constitute the violation. The violation occurred 

when the employees worked on the light fixtures while they were energized. 

The miswiring and the energizing of the conduit illustrate why mechanical 

work on energized electrical equipment is prohibited by the standard. 
Distribution 

Ronald E. Greenlee, Esq. 

Clancey, Hansen, Chilman, 

Graybill & Greenlee, P.C. 

Peninsula Bank Building 

Ishpeming, Michigan 49849 

Harry Tuggle, 

United Steelworkers of America 

5 Gateway Center 

Pittsburgh, PA 15222 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd: 

Arlington, Virginia 22203 

Ernest Ronn 

United Steelworkers of America 

706 Chippewa Square 

Marquette, Michigan 49855 

Paul Gravedoni 

United Steelworkers of America 

936 Baldwin Avenue 

Megaunee, Michigan 49866 
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 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY A.ND HEALTH 

R'-VIEW COMMISSION, 

Petitioner 

Vo 

C JSOLIDATION COAL COMPAJ.'l'Y ~ 

Respondent 

DECISION 

CONTEST OF CITATION 

DOCKET Noo PENN 82-89-R 

Citation Noo 114398S; 

2/12/82 

CIVIL PENALTY PROCEEDING 

DOCKET Noo PENN 82-208 

A.Co Noo 36-00807-03113 

Renton Mine 

Apperances: Robert M. Vukas, Esq., Pitt , Pennsylvania, for 

Before: 

Consolidation Coal Company; 

Janine G. Gismondi, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary of Labor. 

Judge Melick 

These consolidated cases are before me, pursuant to sections 105(a) and 

lOS(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

!:_! ~·, (the "Act") to contest a citation issued to the Consolidation 

Coal Company (Consol) pursuant to section 104(a) of the Act and for review 

of a civil penalty proposed by the Mine Safe and Health Administration 

(MSHA), for the violation charged in that citation. The general issue before 

me is whether Consol violated the regulatory standard at 30 CFR § 75.1725(a) 

as alleged in Citation No. 1143985 and, if so, whether that violation was 

"significant and substantial" as defined in the Act and interpreted by the 
Commission in Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 

822. An appropriate civil penalty must also be assessed if a violation is 

found. Evidentiary hearings on these issues were held in Falls Church, VirThe cited regulatory standard, 30 CFR § 75.1725(a) provides as follows: 

Mobile and stationary machinery and equipment shall 

be maintained in safe operating condition and machinery or 

equipment in unsafe condition shall be removed from service 

immediately. 

The citation at issue reads as follows: 

The emergency escape hoist at Center Beach intake shaft 

was not maintained in a safe operating condition in that when 

the conveyance was lowered to the shaft bottom land , the 

conveyance was being led under the shaft collar, Subsequently, when the conveyance was raised to the surface, it 

would contact the shaft collar and be jerked back and forth 

in the shaft, 

The essential facts in this case, as all in the citation and as amified by MSI-l~ inspector Dennis Swentosky, are not in dispute. Consol argues 

only that those facts do not constitute a violation of the cited standard, 

and that even if those facts do constitute a violation of the standard, that 

the violation was not ignificant and substantial 11 • Inspector Swentosky testified that on February 12, 1982, he was helping MSHA Inspector Gerald Davis 

check the emergency escape hoist at the Center Beach intake shaft. Swentosky 

observed the capsule being raised three times. Because of the high veloc 

of the mine ventilation, each time the capsule was raised, it moved under and 

contacted the shaft collar. The capsule then proceeded to swing back and 

forth in the shaft (though not striking the shaft) as it was raised. 

Inspector Davis testified that he had observed the same problem with the 

capsule during seven or trips on October 2, 1980. A citation was issued 

at that time under the tory standard at 30 CFR §75.1704. According to 

Davis, various .modes of corrective action could have been taken to prevent the 

capsule from striking the shaft collar. He observed that rails could have 

been placed on the platform, a guiderope could have been run down the full 

length of the shaft, wire ropes or a grating could have been placed across 

the entry to prevent the capsule from deviating off course, or the platform 

itself could have been raised to elevate it above the effect the-ventilation. 

While not disputing this evidence, Consol argues that the cited standard 

addresses only the maintenance, in safe operating condition, of mobile and 

stationary machinery and pment. More specifically, Consol argues that the 

standard protects only against intrinsic defects in machinery and equipment 

that would affect safe operation. Thus, Consol argues that since the only 

2148 
defects by.USHA in this case were factors extrinsic to the escape capsule itself, there was no violation of the cited standard. Indeed, all of the 

cases involving this standard cited by the Secretary in his brief involve 

inherent defects in the equipment itself. See Hid-Continent Coal and Coke 

FNSHRC 1501 (1979), aff'd, 2 HSHC 1450 (10th Cir., 1981) in which 

to have been maintained in an unsafe condition due 

lever on the hoist assembly used to open the 

, 3 FMSHRC 2410 (1981) in which a conveyer was found to 

in an unsafe operating condition due to faulty belt 

rollers; and Amherst Coal Co., 2 FMSHRC 597 (1980) in which a scoop was found 

to have been an unsafe 

lead wire. 

condition due to an inoperative 

However, even assuming, the standard is limited in application to intrinsic defects in or equipment, I would nevertheless 

find a violation in this case. There does not seem to be any dispute, and in 

any event I find, that the movement of the escape capsule into the shaft 

collar was not safe or not it was a 11 significant and substantial" 

hazard). Inspector Davis moreover, that one method of correcting the 

unsafe condition would be to modify the itself by at it to a 

guide rope the full of the shaft. Thus, one method of abatement implicitly called for modifications to what may be considered defects 

intrinsic to the capsule itself. The fact that other options for abatement 

also existed wl1ich were extrinsic to the escape capsule and that the operator 

indeed may have chosen one of those modes of abatement is immaterial. 

In any event, it is apparent that the citation charges that the emergency 

escape hoist system (not merely the escape capsule as an isolated ?iece of 

equipment or machinery) was unsafe. Thus, if any part of that integrated 

of machinery and equipment was not being maintained in a manner in 

which the entire system could have been saf operated, then there was a 

violation of the cited standard. Here the ,~vidence shows that there were 

intrinsic defects in that system of machinery and equipment that allowed the 

capsule to strike the shaft collar. The system was therefore in an unsafe 

condition in violation of the cited standard. 

Whether that violation is "significant and subs , however, 

on whether, based on the icular facts surrounding the violation, there 

existed a reasonable likelihood that the hazard contributed to would have 

resulted of a reasonably serious nature. Secretary v. Cement 

.:__.:__.:__-'-"'-"~~~~~~_d._=-=--'-'--C~o_. , The test essentially involves two 

cons ions, probability of resulting injury, and (2) the seriousness of the resulting injury. In this , it is interesting to note that 

the same condition cited in this case had on a prior occasion been found by 

r1SHA not to have been "s icant and substantial" under the more liberal definition of that concept then in effect. In any event, I find i'!SH.A's evidence 

concerning the hazards associated with the cited conditions to be 

speculative. For example, Swento speculated that a person in the capsule s to a stretcher with serious neck injuries could 

2149 
possibly sustain further injuries-if the capsule struck the collar with sufficient force. He also speculated that someone might receive knee injuries 

from bouncing against the side of the capsule. While he thought knee injuries 

could "possibly" occur, he was not aware that any such injury had ever occurred. Moreover, Swentosky that he did not consider the use of the capsule in the condition cited to be imminently dangerous nor did he deem it 

necessary to have it removed from service. He did not know whether the emergency hoist at issue had ever previously been used or whether the rate of 

ascent could be controlled at a slow rate of speed --factors important to 

ascertaining the probabilities. 

Inspector Davis also speculated that if the capsule caught under the 

collar, the bridle chain might be stretched and the wire rope at that 

location. There is no evidence, however, that the capsule ever did get caught 

under the collar in spite of extensive testing. Moreover, since the top of 

the capsule was tapered, it appears unlikely that it could get caught under 

the collar. While Davis also observed that the capsule once hit the side of 

the shaft so hard that it severed the communications cable -- a cable about 

as thick as standard house wire -- I am unable to translate that incident to 

any probable hazard of a serious nature. 

There is also divergence of opinion as to the sever of the hazard. 

Mine Superintendent Andrew Hathaway testified for example that during tests 

on February 13, 1982, he saw the capsule scrape the shaft collar, but not 

violently, and only "about 50% of the time or less". Moreover, according 

to Hathaway the capsule had been used only three times since 1975 and had 

never been used in an emergency. 

Within this framework of evidence, it does not appear likely that the 

hazard contributed to would have resulted in any serious Accordingly, I do not find that the violation in this case s "significant and 

substantial". For the foregoing reason, I also do not find a high level of 

gravity associated with the violation. I find, however, that Consol was 

negligent in allowing the unsafe condition to have exis without apparent 

correction for more than a year. The evidence shows that the operator did 

abate the condition in a timely manner after the citat herein was issued. 

There is no dispute that the operator is large in size and that the mine at 

issue has a fairly substantial history of violations. Under the circumstances, I find that a civil penalty of $250 is appropriate. 

Ci tatfon No. 1143985 is affirmed, however, the "~· gnificant and substantial" findings made therein are hereby stricken. The onsolidation Coal Company is ordered to pay a civil penalty of $2 0 for th ·cited violati within 

30 days of the date of this decision. 

Gar 

Distribution: Page S. 2150 
Distribution: By certified mail. 

Robert M. Vukas, Esq., Consolidation Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

Jeanine C. Gismundi, Esq., Office of_.the.Solicitor, U.S. Department .of Labor, 

Room 14480 Gateway Building, 3535 Market Street, Philadelplhiai PA 19104 

Harrison B. Combs, Jr., Esq., United Mine Workers of America, 900 Fifteenth 

Street, N.W., Washington, DC 20005 

2151 
FEDERAL MINE SAFETY AND HEALTH REVIEW COM.M.ISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOtti FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant: 

CONTEST OF CITATION 

DEC 21 l9lrl 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Docket- No. PENN 82-89-R 

Citation No. 1143985; 

2/12/82 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Renton Mine 

CIVI.L PENALTY PROCEEDING 

Docket No. PENN 82-208 

A.C. No. 36-00807-03113 

Renton Mine 

AMENDED DECISION 

The decision in these cases is hereby amended so that 

the docket number in the above-captiorn:~d Civil Penalty 

Proceeding shall become PENN 82-208A. New docket number 

PENN 82-20BB will include Citations No. 840955 and 8409~6 

(2/l/82), and l pleadings corre ponding to those citations 

heretofore by the parties i ' Docket No~ PENN 82-208 

are hereby incorporated in Docket PENN 8 ~208B. 

A ! . \Ll(t, : i 

Gary ~e 1c~"J\ ' 

Distribution: By ce::~~::\ t C~~e~\ <~inistrat Law Judge 

Robert M. vukas I Esq. I Conso'lidatioA .. _Jal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

Jeanine C. Gismundi; Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 

Markat Street, Philadelphia, PA 19104 

Harrison B. Combs, Jr., Esq., United Mine Workers of America, 

~OJ Fifteenth Street, N.W , Washirgton, DC 20005 

2152 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATI0:.'1 COAL COHPANY, 

Contestant 

v. 

SEC;IBTARY OF LABO:l, 

HE~:C SAFETY AND HEALTH 

AJTUNISTRATION (USHA), 

Respondent 

SECRETARY OF LABOR, 

:ni:rn SAFETY AND HEALTE 

AD1'lli::ISTRATIO:~ (~1SHA), 

Petitioner 

v. 

co~rnOLIDATIO~~ COAL CG:f1PANY' 

Respondent 

Contests of Order 

Docket IJo. PENN 32-64-?. 

Order No. 1143777; /82 

Docket :~o. I'ElH 32-66-R 

Order No. 1142931; lJ/02 

Renton ~tine 

Civil Penalty Proceed 

Docket r~o. ?Eim 32-13£: 

A.C. No. 36-00807-0J112V 

:Uocket lfo. PE~~N 82-109 

A.C. ~lo. 36-00807-03109V 

Renton ~line 

DEC IS IO~~ 

Appearaaces: David T. Bush, Esq., Office of the Solicitor, U.S. Depart~ent 

of Labor, Philadelphia, I'ern'.1sylvania, on behalf of the 

Secretary of Labor; 

Defore: 

S TATEHE:n 0 P 

Robert ~-1. Vukas, Esq., Pittsburgh, Pennsylvania, for 

Consolidation Coal Company. 

Adninistrative Law Jud~e Broderick 

CASE 

Docket :io. P.Ei'TN 32-64-R is a contest of Order of Hithdraual no. 111,:::;777 

issued January 12, 1982, un<ler section 104(d)(l) of the Act. The order refers 

back to Citation I~o. 11Lf3669 issued December 13, 1931. Docket '1o. '?E~E~ 32-134 

is a civil penalty proceeding seeking a penalty for the violation in 

Order No. 1143777. 

2153 
Docket No. PENN 82-66-R is a contest of Order No. 1142931 issued 

January 13, 1982, under section 104(d)(l) of the Act. This order refers back 

to Citation no. 1143669 issued Jecember 18, 1931. Docket No. PENN 32-109 is 

a civil penalty proceeding seekin~ a penalty for the violation alleged in 

Order No. 1142981. 

Citation No. 1143669 was issued under section 104 (d) · the Act. It was 

contested before Gary Helick who found that the viola::ion 

occurred, but that it was not "significant and substantial." Consolidation 

Coal Co. v. Secretary of Labor, 4 TIIBHRC 1533 (1932). This decision in ef t 

converted the 104(d)(l) citation to a 104(a) citation. 

Consolidation Coal Co. moved for summary decision vacat the two orders 

contested herein on the ground that there is no longer a valid 

lQL; (d) (1) citation to support them. The Secretary moved to Ti1odi ' Order 

No. 1143777 issued January 12, 1932, to a 104(J)(l) citation whic. would then 

serve as the underlying 104(d)(l) citation for Order No. 1142981. I reserved 

decision on the motions. 

Since the cases involve a common issue of law and all arose in the same 

mine at about the same time, they are hereby CONSOLIDATED for the purpose of 

decision. 

Pursuant to notice, the cases were heard on the merits in Pittsbur3h, 

Pennsylvania, on October 13, 14 and 15, 1982. Dennis J. Swentosky·and 

Richard J. Silka, Federal coal mine inspectors and Daniel Fitzroy testified ~or 

the Secretary of Labor. Larry Cuddy, Randy ;Jebolt, Melvin Burkes and John Xoraa 

testified for Consolidation Coal Company. 

The waived the right to 2ile written proposed findings of fact and 

conclusions of law. Based on the entL:e record, and consider the contentions 

of the parties, I make the following decision. 

FIHDINGS OF FACT TO ALL DOCKETS 

1. At all times pertinent to these proceedings, Consolidation Coal Co. 

(Consol) was the owner and operator of the Renton Nine in Allegheny County, 

Pennsylvania. Consol is a large operator, and the i~position of a penalty will 

not afzect its ability to continue in business. 

2. In the 20-month period prior to the date of the orders contested 

herein, the operator had a history of 595 assessed violations. 

3. The operator demonstrated good faith in abating the conditions alleged 

in the contested orders. 
FrnDI~;cs OF FACT - DOCKI:T NOS. PENN 82-64-R AND PENN 82-184 

1. On January 12, 1932, Richard Silka, a Federal coal mine inspector and 

a authorized representative of the Secretary of Labor, issued an order of 

withdrawal to Consol under section 104(d)(l) of the Act, char a violation 

of 30 C.F.R. § 75.400. 

2. On January 12, 1932, there were accumulations of fine coal, 

fine coal and lump coal along the tracks and between the tracks the 

load ramp of the 14 and 15 South sections of the subject mine. The accumulations extended for a distance of approximately 75 to 100 feet and 

between the rails, and for an additional 100 feet along side rail. 

The accumulations for the first 75 - 100 feet were 4 feet in 

width and from 6 to G inches deep. The accumulations side 

rail were 1 to 2 feet wide and 6 to 8 inches deep. There was a D.C. car haul 

unit between the rails ext for about 40 feet in the affected area. This 

was a steel structure which most of the area between the rails and 

extended from the floor almost as high as the rails. The accumulations 

between the rails in this area therefore, uere not as as appeared, 

and were not as deep as in other areas cited. 

3. Mine cars were present on the track along the area cited. The cars 

were approximately 7 feet wide, and extended out over the tracks about 

13 inches on each side. The accumulations between the rails were therefore 

under the cars. The cars were described as "possum " an<;! the 

bottom of the car came dow"TI almost to the level of the track. Therefore, it 

was difficult to see under the cars. 

4. The ground wire was not properly connected to the return feed wire 

to the radio unit just outby the belt entry along the track approximately 

2 to 3 feet from the accumulations of coal and coal dust. 

5. The conduit switch to the pump was not properly entered into the 

pump box and the frame was not connected to the feed wire. This was approximat 2 to 3 feet from the accumulations of coal and coal dust cited herein. 

6. There was a 250 Volt D.C. trolley wire from the roof about 

6 feet above the track on the t side. The trolley motor does not 

come within 600 to 1,000 feet from the accumulations cited herein. 

7. Inspector Silka arrived at the area in question about 1:50 p.m. on 

January 1.2, 1982. The area had been inspected by company mine examiners at 

5:20 a.o. and at 1:20 p.m. on the same day. 

G. In the 15 months prior to the issuance of the order challenged 

herein, 26 violations of the stanJard in 30 C.F.R. § 75.400 were issued to the 

ect mine, nine of them involving ramp areas. 

2155 
STATUTORY PROVISIOH 

Section 104 (d) (1) of the Act provides as follows: 

(d)(l) 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 i!!lninent danger, such 

violation is of such nature as could significant and 

substantially contribute to the cause and effect of a coal or 

other mine saf or health hazard, and if he finds such violation to be caused by an unwarrantable f:iilure of such operator to conply with such mandatory health or safety standards, 

he shall include such f 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 standard and finds such violation to be also caused 

by an unwarrantable fnilure of such operator to so co;'1ply, he 

shall forthwith issue an order requiring the operator to cause 

all persons in the area affected by such violation, except 

those persons referred to in subsection (c) 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. 

REGULATORY PROVISION 

30 C.F.R. § 75.400 provides as follows: "Coal dust, including float coal 

dust deposited on rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be pernitted to accumulate in active 

workings, or on electric equipment therein." 

ISSUES - DOCKET NOS. PENN 82-64-R Aim PENU 82-184 

1. After an order issued under section 104(d) has been contested before 

the Commission, may lISIIA or an administrative law judge modify it to a 

104(d)(l)- citation? 

2. \Jas a violation of the standard in 30 C.F.R. § 75.400 established? 

3. If a violation occurred, was it of such a nature as could significantly ancl substantially contribute to the cause and effect of a coal nine 

safety or health hazard? 

2156 
4. If a violation occurred, was it caused by an unwarrantable failur 

of the operator to comply with the standard in question? 

5. If a violation occurred, what is the appropriate penalty? 

rons OF LAH -

1. Consol was subject to the provisions of the FeJeral 'line Saf etv and 

Health Act in the operation of the Renton ~line at all times pertinent hereto, 

and the undersigr..ed Administrative Law Judge has jurisdiction over the narties 

and subject matter of this ing. 

2. The Secretary's motion to mod 

herein to a 104 )(1) citation is her 

DISCUSSIOH 

the ~04( )(1) order contested 

GR..\NTED. 

Subsequent to the hearing in these cases, the Commission the 

~Ielick ·in modifying an invalid 104 (d) (1) withdrawal 

order to (1) citation. of Labor v. Consolidation Coal 

Companv, 4 Fl:lSHRC 1791 (1982). c::ise was s to the present ir:. 

that the 104(d) (1) citation unde the contested order had ~een modified 

by the Judee to a 104(a) citation in a prior proceeding, and Consol moved for 

summary decision on the ground that the order lacked the required underlying 

104(d)(l) citation. Prior to the hearing, the modified the contested 

order conditioned on evidence showing a significant and subs tia~ ion 

and an unwarrantable failure to comply. 

In the present case the necessary findings ("S&S") were contained 

in the order when it was issued. Consol argues that it contested a withdrawal 

order which required imaediate abatement and that it is not fair to permit the 

modification sought here, since it must in effect contest a citation with 

immediate withdrawal, an entity not recogni3ed in the Act. There was no sho1Jing, however, of prejudice or surprise, no showing that its defense to a 

(c)(l) citation would differ from its defense to a (c)(l) order. See 4 F:1SHRC 

at 1795. The modification here was accomplished on motion of the Secretary, 

although the Secretary also issued and submitted in evidence a copy of the 

modification fnr;n it issued to Consol. The Co:anission held that the pro;;er 

procedure for modification after a notice of contest has been filed is 

!!lotion. Id. On the authority of the Commission decision, I am p;rant the 

motion to modify the contested order to a 104(d)(l) citation. 

3. On January 12, 1932, a violation of JO C.F.R. § 75.400 was established 

in that loose coal and coal dust Has permitted to accumulate in active workings 

along and between the tracks outby the loading ramp of the 14 and 15 South 

sections of the subject mine. The operator did not any evidence to 

contest the fact of violation. 

4. The violation referred to above was of such nature as could signif icantly and substantially contribute to the cause and effect of a mine safety 

or health hazard. 

215'{ 
DISCUSS IO'.\/ 

The test for a "significant and substantial" violation, laid down the 

Co::unission in Sational 3 PMSllRC 

822. is the result 

in injury or illness of a reasonab serious nature. 

The hazard contributed to by accumulations of loose coal and coal dust 

is a mine fire or explosion. Uhether it is reasonably to occur 

upon (1) the nature and extent of the accumulations; and (2) the existence of 

sources of i8nition. If a fire or sion occurred it is likely to 

cause uries or illnesses of a reasonably serious nature. 

The accumulation cited here 1vas substantial -- it extended a cistance 

of almost 200 feet, was 2 to 4 feet wide and 6 to 3 inches The top 

2 inches was fine powdered dust or float dust. Approximately 25 percent of 

the total accunulation consisted of coal dust; the remainder was loose coal, 

The testir:10ny is conflict as to i.;rhether there was an ition source in 

the area of the accumulations. I find that the trolley wire was no a 

potential source of ignition, since the motor did not come closer than 

700 feet fro;n the accur.mlations. Ilm:ever, I regard the improperly connected 

ground wire to the radio, and the ground wire not connected to the pump as 

potential sources of iGnition especially in the presence of float coal dust. 

The float coal dust in itself has the capacity to propagate a mine fire or an 

explosion. Bec~use of these factors, I find the violation was icant 

and substantial. 

5. The violation resulted froTI! the unwarrantable failure of the 

operator to comply with the standard. 

DISCUSSION 

The extent of the accumulation was such that it had to have been there 

for at least half a shift or 4 hours prior to the inspector's arrival. The 

operator had been cited on many prior occasions for violations of the standard 

in question. Because of this, special care should have been taken to avoid 

repetition. The mine examiners who exa:nined the area prior to the tion 

testified that they did not observe the accumulations, and I accept their 

testimony as truthful. In fact, when walking along the wide side of the 

tracks, the accumulation, which was between the tracks and on tne side, 

was difficult to see. It clearly could have been seen if the examiner \vas 

instructed to look between the cars or get down and look under the cars. I 

find that the conditio~ was such that the operator could have and should have 

known of its existence. 

6. The violation was serious, and was caused by the operator's negligence. The operator is a large operator and has a substantial history of 

prior violations. I conclude that an appropriate penalty for the violation 

is 50. 

2158 
Fli'WINGS OF FACT - Fmrn 82-66-R AND PE~m 82-109 

1. On January 13,· 1932, Dennis Swentosky, a Federal coal mine inspector, 

and a duly authorized representative of the Secretary of Labor, issued an 

order of withdrawal under section 104(<l)(l) of the Act to Consol charging a 

violation of 30 C.F.R. § 75.1002-l(a). 

2. On January 13, 1982, two non-perraissible breaker boxes for shuttle 

cars were located 113 feet and 120 feet respectively from the outby corner of 

the pillar block being mined. The boxes were approxiflately 160 feet and 

175 feet from the two places in the pillar which were being mined or the 

active cuttin3s. 

3. In the coal mining industry, the term pillar workings refers to the 

gob area and the pillar or pillars being mined. 

4. In retreat mining, when a pillar is mined out and the roof collapses, 

the air including possible methane from the gob area is forced outby. 

5. Mining had been done on the shift prior to that during which the 

order was issued. This mining involved the pillar in question and the breaker 

boxes were in the same location. One split had been mined through the pillar 

and a cut had been taken from a second split. The ~ining was beins done with 

a continuous miner equipped with a methane monitor. 

6. No methane was detected by the inspector at the pillar split at the 

time the order was issued, 

7. The subject mine does liberate methane and is considered a gassy 

mine. Methane is more likely to be encountered in retreat mining than it is 

in development mining. 

3. The nonpermissible breaker boxes are used to turn power on and off 

the shuttle cars and an arc can occur when this is done. An arc can also 

occur in the event of a short in the box. 

9. The air readings taken in the section in question showed good 

ventilation. The bleeders were f ~nctioning properly and breaker posts were 

set to limit the area of the roof fall. 

Ri:~GTJLATORY PROVISION 

30 C.F.R. § 75.1002-l(a) provides as follows: 

(a) Electric equipment other than trolley wires, trolley 

feeder wires, high-voltage cables, and transformers shall be 

permissible, and maintained in a permissible condition when 

2159 
such electric equip~ent is located within 150 feet from pillar 

workings, except as provided in paragraphs (b) and (c) of this 

section. [Paragraph (b) provides an exception for certain 

nonpermissible equipment prior to l'Iarch JO, 19 74; paragraph 

(c) excepts equipment for which a permit for non-compliance 

has been issued.] 

ISSUES 

L Here the nonpermissible breaker boxes involved herein within 

150 feet of "pillar workings" on Januarv 13, 1982? 

(a) Should the measurement to the nonpermissible equ 

ment be taken from the outby corner of the pillar be mined 

or from the actual place of the cut? 

2. If a violation was established, was it of such nature as could 

significantly and substantially contribute to the cause and effect of mine 

safety or health hazard? 

3. If a violation occurred, was it caused by an unwarrantable failure 

of the operator to comply with the standard in question? 

4. If a violation occurred, what is the appropriate penalty? 

co:;cLUSIONS OF LAP - DOCKET NOS. PENN 

1. Consol was subject to the orovisions of the Federal Hine Saf and 

Health Act in the operation of the Renton :ifine at all times inent :1ereto, 

and the undersigned Administrative Law Judge has jurisdiction over the parties 

and subject matter of this proceeding. 

2. There is a valid underlyin~ 104(d)(l) citation for the contested 

order, namely the one referred to in Docket ~o. PENN 82-64-R. 

3. On January 13, 1982, a violation of 30 C.F.R. § 75.1002-l(a) was 

established in that two non-permissible breaker boxes for shuttle cars were 

located within 150 feet of pillar workinzs in the subject mine. 

DISCUSSIOif 

The tenn "pillar workings" is not defined in the regulations. The :,!SHA 

underground inspector's manual directs that the 150 foot distance be neasuretl 

from the non-permissible equipment in question to the nearer of (a) the 

outby edge of the pillar being mined, or (b) the inby of the solid 

pillars immediately outby the previous pillared area. ~he tor testified that this has long been NSHA's policy and that the policy is well known 

in the industry. He further cestified that the term pillar workinzs is a 

2160 
broad term and includes the gob area and the entire block or blocks being 

mined. Consol's Safety Department had been a copy of the MSHA 

Inspector's Manual. Citations have been issued to Consol previous Eor violations of the standard in question. The State of Pennsylvania standard 

requires measurement from the electrical equipnent to the actual workins face. 

Consol's r;eneral mine foreman was aware of the 'fSHA policy and knew that the 

breaker boxes were within 150 feet of the outby corner of the pillar being 

mined. He disagreed with the definition of pillar workings, however, and 

stated that he would consider it as referring to the actual working face. 

It would clearly be preferable to have the term pillar workings defined 

in the regulations. The definition assumed t!SHA, however, see;::is to me to 

be a reasonable one, and much more satisfactory and practical than any otl1er 

definition suggested. If the distance is measured from the working face to 

the electrical equ , it would change as the block was be mined and 

might require shutting off the power and moving the equipment before the 

pillar was completely mined. I accept the testimony of the inspector that 

the term pillar workings means the gob and the entire pillar or being 

r:iined, and that this definition is known and followed in the r:iining industry~ 

4. The violation referred to in Conclusion of Law No. 3 was of such 

nature as could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. 

DISCUSS IOU 

The hazard which the standard is designed to prevent is an iEnition or 

explosion which could result from methane beins forced back over electrical 

equipment which r:iay arc. Although methane was not detected at the time of 

the citation, the mine is a gassy mine, and methane is likely to be encountered 

in retreat nininG. If methane was forced back over non-permissible electrical 

equipment, and an ig1:ition or explosion occurred, serious injuries to miners 

would be likely. My conclusion is based in lar~e part on the inspector's 

testimony, but I have considered the testimony of Larry Cuddy to the effect 

that the bleeder syste1'1 would prevent J:"lethane buildup in the gob and the 

breaker posts woulJ prevent a running fall. The hazards of nethane in underground ;nining are too well kno\m to require documentation, as is the unpredict~bility and suddenness of its appearance. 

5. :he violation referred to in Conclusion of Law no. 3 resulted fron 

the unwarrantable failure of the operator to comply with the standard. 

DISCUSSIO'.i 

Randy Debolt, General Mine foreraan of the Renton ~line, recognized before 

the order was written that there was a violation of the standard. Larry 

Cuddy, section foreman, stated that he made a mistake by neasuring from the 

working face to the shuttle car b0xes. lie testified that he did so because 

216 1 -- ..L 
the State of Pennsylvania requires raeasurement from that point. I accept 

Hr. Cuddy's testimony as truthful, but I conclude that he should have known 

that the condition constituted a violation .of the Federal standard. On that 

basis, I conclude the violation was unwarrantable. 

6. The violation was serious, and was caused by the operator's 

eence. The operator is a large operator and has a substantial history of 

prior violations. I conclude that an appropriate penal for the violation 

is $750. 

ORDER 

Based upon the above Findings of Fact and Conclusions of Law, IT IS 

ORDERED: 

1. Order of Rithdrawal No. 1143777 issued January 12, 1932, modified 

herein to a 104(d)(l) citation, charging a significant and substantial violation and an unwarrantable failure to comply is AFFIRHED as modified. 

2. Order of \·:ithdrawal No. 1142981 issued under section 104 ) (1) on 

January 13, 1982, is AFFIRMED. 

3. Consolidation Coal Company shall within 30 days of the date of this 

decision pay the sum of $1,500 for the two violations found herein to have 

occurred. 

/1 a (,klj; .413vock1.~ci/ ~ James A. Broderick · 

Administrative Law Judge 

Distribution: By certified ~ail 

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 

David T. Bush, Esq.; Office of the Solicitor, U.S. Department of Labor, 

Room 144d0 Gateway Building, 3535 }~rket Street, Philadelphia, PA 19104 

2162 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210111/12 

ALLIED CHEMICAL CORPORATION, 

Contestant 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY A.i'ID HR.bJ:.. TH 

ADMINISTRATION (HSHA), 

Respondent 

Docket No. WEST 82-97-RH 

Citation No, 578873; 5/82 

Alchem Trona Mine 

DECISION AND ORDER < -

This matter is before me under a reservation of jurisdiction 

to the proper interpretation of a mandatory safety standard 

relating to metal and nonmetal underground mines. The standard in 

question provides: 

Unguarded conveyors with walkways shall be 

equipped with emergency stop devices or cords 

along their full length. 30 C.F.R. 57.9-7. 

The operator paid a penalty of $300 for failure to provide an 

operative step cord the west side of its 2,000 foot conveyor 

but contests ar..y interpretation of the standard that would require 

such a cord the east side of the conveyor. 

The stipulated facts show there are walkways down both the east 

and west side of the beltline and that while the west side is the side 

designated as the walkway miners are regularly assigned to clean muck 

from positions on the east walkway. This occurs at least two shifts a 

month. Further, miners assigned to clean on the east side of 

the belt are required to travel a dist·ance of 40 feet to and from the 

crosscut through which they access to the east walkway. 

The operator's reliance on Secretarv of Labor v. Magma Copper Company, 

1 FMSHRC 83i', 857 (1979) is obviously misplaced. There the trial judge 

held that the Secretary failed to prove that the walk or travelway in 

question was "regularly used and designated for persons ~o go from one 

place to another". 30 C.F.R. 57.2 (Definitions). While I accept the 

2163 
operator's contention that 57.2 applies to walkways, I find the 

east walkway was a designated workplace for miners and that as such it 

constituted a designated walk or travelway within the meaning of 57.~ 

and 5 7. 9- 7. 

The intent of the standard, as the operator admits, is to protect 

miners who on a regular and frequent basis, use a designated walkway 

for movement to and from their regular duty stations. Since the 

facts show the east side of the is a station 

frequented by miners at least two shifts a month, it is clear that the 

hazard presented by the moving beltline is one t which the standard 

was directed. 

The fact that a miner is stationed on the west side of the beltline 

for the sole purpose of pulling the stop cord in the event of an emergency 

on the east side is no defense to the failure to provide a stop cord 

on the east walkway. First I find it highly unlikely that the operator 

can always be depended upon to send three men to do the work of two, 

especially in the face of economic layoffs and reduced workforces that 

prevail in most mines. Second I find no in the standard that s 

the arrangement posited by the operator without action by the Secretary 

on an appropriate petition for modification. Third, as the Secretary 

points out, the stop cord is intended as an individual safety device that 

should not depend for its activation on some form of communication between 

individuals who may be widely separated and where time and awareness 

of the danger may be of the essence in preventing a serious injury. 

The premises considered, therefore, it is ORDERED that the operator's 

contest of the citation in question be, and hereby is, DENIED and the 

validity of the citation AFFIRMED. 

Distribution: 

oseph B. Kenn 

Administrative Law 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, Suite 1600, 

50 South Main Street, Salt Lake City, UT 84114 (Certified Mail) 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/J 1/12 

Civil Proceeding 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 81-272-M 

A.O. No. 35-02875-05005 

v. 

M & H ROCK, INC., d/b/a 

APPLEGATE AGGREGATES, INC., 

a corporation, 

Respondent 

Applegate Bar 

DECISION 

Appearances: Faye Von Wrangel, Attorney, U.S. Department of Labor, 

Seattle, Washington, for the petitioner; Ernest W. Mignot, 

Grants Pass, Oregon, se, for the respondent. 

Before: Judge Koutras 

This is a civil penalty proceeding initiated by the petitioner 

against the respondent pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(a), seeking a civil 

penalty assessment for two alleged violations of certain mandatory safety 

standards. Respondent filed a timely answer and notice of contest and 

a hearing was convened in Medford, Oregon, on October 28, 1982 and the 

parties appeared and participated fully therein. The parties waived 

the filing of posthearing proposed findings and conclusions. However, 

I have considered the arguments advanced by the parties in support of 

their respective cases during the course of the hearing in this matter. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 u.s.c. § 801 ~ ~· 

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

3. Commission Rules, 20 C.F.R •. § 2700.1 et 

2165 
Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the petition for assessment of civil penalties 

filed in this proceeding, and, if so, (2) the appropriate civil penalties 

that should be assessed against the respondent for the alleged violations 

based upon the criteria set forth in section llO(i) of the Act. Additional 

issues raised by the parties are identified and disposed of in the course 

of this decision. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator, (3) whether 

the operator was negligent, (4) the effect on the operatorvs ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve 

compliance after notification of the violation. 

The citations issued in this case were served on the respondent by 

MSHA Inspector George A. Gipson pursuant to Section 104(a) of the Act 

during the course of an inspection of the mine site on March 18, 1981, and 

they are as follows: 

Citation No. 345579, 30 CFR 56.14-1: 

The ralls crushing V-Belt drive unit was not 

completely guarded. The exposed pinch point 

was within easy contact being located four 

feet above ground level and near the walkway 

leading to the ladder to the feed crusher 

operations platform. 

Citation No. 345580, 30 CFR 56.11-2: 

The elevated walkway around the wet plant was 

not provided with adequate handrails. Handrails 

had been installed but was not maintained in 

good condition. The corner post was broken 

off at the base causing the cable railing to 

be one foot above the floor level. The walkway 

floor was 8 1/2 feet above ground level. 

Petitioner's testimony and evidence 

MSHA Inspector George A. Gipson, testified as to his background and 

experience and confirmed that he inspected the respondent's sand and 

gravel plant on March 18, 1981, and plant foreman Bruce Ogden and owner 

2166 
Bill Mignot were with him at that time. Inspector Gipson described the 

crushing plant , and he observed three people at the plant on 

the day of his inspection. One was working in the pit area with a loader, 

another was operating a loader in the crusher area, and a foreman was in 

the area. Mr. Ogden him on the walk-around inspection of 

the entire plant, and Mr. Gipson confirmed that he inspected the ralls 

crusher, and he described its operation. He identified a photographs 

of the crusher and described the area which he believed was not guarded 

(Tr. 9-14, exhibit C-1). 

Mr. Gipson described an area on the crusher labeled as "side guard" 

on exhibit C-1 as a metal s cloth which was on the crusher when 

he observed it. The area which was not guarded, including the alleged 

"pinch point" is labeled on the exhibit and he identified it as the area 

which was not Mr. believed that an employee could come 

point area between the belt and the pulley. 

He identified a corner of a ladder in the lower right-hand corner of 

exhibit C-1, and he believed that an employee walking up to that ladder 

next to the of shown on the exhibit could somehow come in 

contact with point. Mr. Gipson indicated that an 

employee was stationed on a platform at the top of the ladder 

ob the crusher 

the pulley. On the 

up (Tr. 19). 

, but that he would also clean-up under 

inspection he observed an employee cleaning 

Mr. Gipson testified that he measured the distance from the pinch 

point to the ground, and that it was four feet or waist high to a person 

walking by (Tr. 20). The hazard associated with the unguarded piRch 

point was someone their finger or hand in the moving unit, and 

at the time he observed the condition it was in operation and moving 

(Tr. 20). The was immediately shut down, and a guard was 

fabricated and installed (Tr. 17). 

Hr. Gipson identified exhibit C~2 as a photograph of the handrail 

around the elevated screener area which he cited in citation 345580. 

He described the post which had been knocked down and stated that it 11was dangl low within about a foot of the actual walk platform . 20). 

Mr. Gipson stated that the walkway area was -elevated some and one-half 

feet from ground level, and a conveyor belt ran out from under the elevated 

area (Tr. 22). Mr. Gipson testified that the condition of the handrail 

was a hazard because it could not be used for grasping to anyone 

from fall over the edge. It also posed a tripping hazard for anyone 

attempting to walk around the posts and cable which had fallen over 

(Tr. 23). The post was immediately put back in place and welded, and 

the respondent did a good job in this regard (Tr. 23),. 

Mr. Gipson confirmed that the primary reason 

forth by the unguarded area would be to go up 

and down the ladder, and he believed that an employee would be 

arm's reach of this pulley to get to the ladder" (Tr. 25). However, he 

216t 
conceded that he did not measure the distance from the edge of the ladder 

to the exposed pinch point, and he also conceded that there would be no 

hazard while climbing the ladder. However, he believed there would be 

a hazard "as you walk by here or trip or whatever and extended a hand 

into that pinch point 11 (Tr. 26). The area around the bottom of the ladder 

was all open area, and he believed that the piece of plywood shown in 

the exhibit C-1 was there to provide protection for a conveyor belt 

running under the pulley area in question. Mr. Gipson also indicated 

that someone walking to the ladder could trip or extend a hand out and 

come into contract with the pinch point (Tr. 27). 

With to the handrail citation, Mr. Gipson stated that he 

measured the distance from the top of the cable where it "dips 11 in the 

exhibit C-2, to the form floor and that the distance was approximately 

12 inches (Tr. 30). ~he cable is a metal type used for hoisting, and it 

is very substantial once it is in place. The work platform around the 

screening is norrrailY used for maintenance work and no one is there when 

the crusher machine is operating. Although the inspector did not measure 

the width of the walkway, Mr. Mignot indicated that it was eight feet 

wide and seven feet long, and this was the "service arean from which any 

maintenance would be perfonned, and normally, one or two men would be 

on the platform at any time (Tr. 34). Mr. son confirmed that 

his concern was that someone could fall over the of the form, 

and he conceded that the "elevated walkway" was not an area where miners 

no would pass go and coming from their work stations, and that 

the only time anyone would go there would be to perform some specific 

maintenance work (Tr. 36). 

Respondent's testimony and evidence 

Ernest W. Mignot, owner and operator of the mine in question, testified 

as to his operation during the time the citations were issued. Pe indicated 

that his approximate annual production was 100,000 tons of crushec rock. 

He also testified that some of his trucks and equipment were manufactured 

out of state, that he sells his product to a number of customers, including 

the State of Oregon for use in road construction, and to the Federal 

Bureau of Land Management and the Department of Agriculture. Other customers 

include local road and paving contractors (Tr. 37-41). 

Mr. Mignot argeed that the photographs taken by the inspector, exhibits 

C-1 and C-4 were in fact photographs of the conditions cited by the inspector 

in the two citations in question. 

With regard to the guarding citation concerning the crusher V-belt 

drive (345579), Mr. Mignot testified that the distance from the ladder 

as shown in exhibit C-1 to the pinch point in question was approximately 

6 1/2 feet. He indicated that the distance from the ladder to the 

of the steel frame in front of the belt drive was four feet, and from 

that point the distance to the pinch point was 2 1/2 feet. 

Mr. Mignot testified that the normal route for one to take when 

approach the ladder to get to the platform above, or to climb off the 

ladder when descending from the platform, was directly in front of the 

ladder. He identified the piece of plywood which appears in the 

photographic exhibit C-1 as a guard for a chute which runs under the 

2163 
belt in question. He also indicated that no one would have any reason 

to be in the corner area adjacent to the belt area and at the of the 

platform, and he believed that the only way one could get their hand caught 

in the pinch point was to deliberately reach in. He also indicated that 

any maintenance work which would have been performed in that area 

would only be done after the crusher plant was shut down. 

With regard to the handrail citation (345580), Mr. Mignot stated 

that the distance between each of the cables as shown in the tographic 

exhibit C-2 was 18 inches, and that the distance between the platform 

floor and the first cable was 18 inches. He conceded that these distances 

were when the entire handrail and supports were upright, and he further 

conceded that the handrail was in the condition shown in the photograph 

at the time the citation was issued (Tr. 41-44). 

Mr. Xignot testified that the handrail cables and support posts 

were of steel construction and he confirmed that the support post shown 

to the right in the photograph was dislodged when a loader struck it 

when it was raising a screen from the ground-level to the platform. He 

also conceded that men were required to be on the platform area from 

time to time while performing maintenance work, but he did not believe 

would be exposed to any danger of over the edge or the 

form because the total work area of the platform is eight feet 

seven feet, and any maintenance work would be performed closer to the 

crusher rather than the edge of the platform. He indicated further that 

the crusher would be shut down for maintenance, and he believed that the 

handrails as shown in the photograph would protect anyone from falling 

or tripping over and that one would have to be drunk to fall over 

cable (Tr. 44-46). 

Findings and Conclusions 

Jurisdiction 

In its answer to the proposal for assessment of civil penalties 

filed the petitioner, the respondent admitted that it has been ting 

a mine, a worksite and place of employment for miners". However, it denied 

the assertion made by the petitioner that its mining operation is subject 

to the Act. Based on all of the evidence and testimony now of record in 

these proceedings, it seems clear to me that the respondent's sand and 

operation is a "mine" within the meaning of the Act, and that the 

respondent is in fact subject to the Act as well as to MSHA's enforcement 

jurisdiction. The mine has been regularly inspected by MSHA's inspector 

force, and the nature of the mining activities as stated in the record 

of testimony during the hearing clearly establishes jurisdiction, and any 

aguments to the contrary by the respondent are rejected. 

Fact of Violation - Citation No. 345579 

This citation charges the respondent with a violation of mandatory 

safety standard 30 CFR 56.14-1, for failure to tely guard an exposed 

2169 
pinch point which the inspector alleged was "within easy contact". 

The standard provides as follows: 

56.14-1 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. 

In this case, the facts show that the inspector measured the distance 

from the pinch point to the ground, which he founci to be four feet or 

"waist high". Coupled with his belief that a waist hi pinch point 

"near the walkway to the ladder!! constituted a hazardous area 

which was required to be guarded, the inspector issued the citation. 

However, the respondent has established through credible test that 

the distance from the edge of the ladder to a steel frame 

the pulley in question was four feet, and from that area to the pinch 

point there was another two and one-half feet. In short, the respondent 

has established that if someone were to fall from the ladder and reach 

out, he would be some six and one-half feet from the pinch point. Given 

these circumstances, it is highly unlike that anyone would get t 

in the pinch point as a result of tripping or while going r 

down the ladder in question to reach a platform above the machine in 

question. 

The photographic exhibit C-1, reflects that the front of the pinch 

point area which concerned the inspector was guarded with a wire mesh 

screen. A piece of plywood, which the inspector found be an ·adequate 

guard, protected anyone from falling into a conveyor belt which ran under 

the machine in question, and the steel framing of the machine running 

alongside the pinch point provided a measure of protection and was some 

two and one-half feet from the pinch point itself. The inspector indicated 

that his primary concern was that someone going or coming from the ladder 

could reach into the pinch point if he were to trip or stumble. I find 

this highly unlikely since a person would have to fall six and one-half 

feet horizontally to get his hand into the pinch point. As for anyone 

getting caught while cleaning up, I find this to be highly unlikely 

also. Based on the position of the pinch point, I believe that one would 

have to make a conscious effort to stick his hand into the. pulley area 

which apparently troubled the inspector. 

Mr. Mignot testified that no one has any business or reason to be 

near the pulley in question and that when maintenance is performed the 

whole plant is shut down (Tr. 43). Mr. Mignot also established to my 

satisfaction that anyone approaching the ladder for the purpose of climb 

up to the platform would approach it from the front, and he would have 

no reason to walk back to the corner of the machine where the pulley was 

located inside the steel framing of the machine, and then walk back and 

over to the ladder. Given all of the prevailing circumstances, I conclude 

and find that the exposed pulley area which was cited in this case was 

not required to be guarded, and the citation IS VACATED. 
Citation No. 345580 

This citation the res 

safety standard 30 CFR 56.11-2, for 

with a violation of mandatory 

failure to provide an adequate 

handrail around an elevated The standard provides as follows: 

Crossovers, elevated , elevated ramps, and 

stairways shall be of substantial construction 

provided with handrails, and maintained in good 

condition. Where necessary, toeboards shall be 

provided. 

It seems clear to me in this case that the cited handrail was no 

of substantial construction or maintained in good condition at the time 

the inspector observed the condition. Mr. Mignot candidly admitted that 

the handrail had apparent been dis when struck a loader, 

and he did not dispute the fact that it condition in the 

photograph, exhibit C-2. Most of his test in defense of the citation 

goes to the question of ty and the likelihood of someone fal 

over the edge of the tform. far as the fact of violation is 

concerned, I conclude find the petitioner has established 

violation of section 56.11-2, ion IS AFFIRHED. 

Good Faith Compliance 

The record establishes that the respondent promptly abated the 

condition cited by immediately shutt down and repairing the defective 

handrail and posts· in ion. Although the inspector fixed the ement 

time as the next morning, March 19, 1981, respondent voluntarily shut 

do·wn at some cost and tion to production to weld and secure the 

support posts and cable back into an up position. I find that 

respondent exhibited rapid and this fact has been considered 

by me in the assessment of a ty for the violation which has 

been affirmed. 

History of Prior Violations 

Respondent's history of 

computer print-out, exhibit C-3. 

citations for the 24 month 

in question. I find this to be a 

violations is reflected in petitioner's 

This print-out reflects three 

prec 

into consideration in the assessment of the 

the ussuance of the citations 

record and have taken this 

civil penalty. 

Mr. Mignot candidly admitted that the handrail post shown in exhibit 

C-2 was dislodged by a loader. Therefore, he knew of the condition 

cited, and his failure to exercise reasonable care to see to it that it was 

promptly repaired constitutes negligence. 

2 1 -(" J_ ..i.. 
Gravity 

The elevated platform in question was some 8 1/2 feet off the 

ground. Although the dislodged post and cable handrail may have provided 

some protection to restrain someone from falling over the platform, the 

inspector stated that his measurement from the top of the cable at its 

lowest point as shown in exhibit C-2 was twelve inches. Mr. Mignot was 

not there at the time, and he could not rebut this fact. The inspector 

believed that someone could possibly trip or stumble and fall over this 

cable in the position which he found it. I accept this testimony, and 

find that the condition cited was serious. 

Size of Business and Effect of Civil Penalty on the Respondent 1 s Ability 

to Remain in Business. 

I conclude and find that the respondent is a small-to-meduim 

size sand and gravel operator. Mr. Mignot stated that his business has 

fallen off since 1981 and that his production has been cut by 50% due 

to general economic industry conditions. Although he indicated that the 

payment of a civil penalty "will hurt", I cannot conclude that it will 

put him out of business or have an adverse impact on his ability to continue 

in business. However, I have taken his testiomny into account in the 

penalty assessment made by me in this case. 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that a civil penalty assessment in the amount of $25 is appropriate 

and reasonable for the citation which has been affirmed. 

Order 

R~spondent IS ORDERED to pay a civil penalty in the amount of $25 

within thirty (30) days of the date of this decision for Citation No. 345580, 

March 18, 1981, 30 CFR 56.14-1, and upon receipt of payment by MSHA, 

this matter is dismissed. 

k.ti-:~ Administrative Law Judge 

Distribution: 

E.W. Mignot, President, M & H Rock, Inc., 2660 Vine Street, Grants Pass, 

OR 97526 (Certified Mail) 

Faye Von Wrangel, Esq., U.S. Department of Labor, Office of the Solicitor, 

8003 F.O.B., Seattle, WA 98174 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CAMBRIA COAL COMPANY, 

Contestant-Respondent 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner-Respondent 

Docket No. PENN 81-145-R 

Citation/Order No. 1043746; 4/J/81 

Civil Proceeding 

Docket No. PENN 81-204 

A.O. No. 36-02738-03008H 

Cambria Coal Strips and Tipple 

DECISIONS 

Appearances: Robert A. Cohen, Attorney, U.S. Department of Labor, 

Arlington, , for MSHA; Bruno A. Muscatello, Esquire, 

Butler, Pennsylvania, for Cambria Coal Company. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern a citation and order issued 

by an MSHA inspector pursuant to sections lO~(a) and 107(a) of the Federal 

Mine Safety and Health Act of 1977, charging :ambria Coal Company with 

alleged violations of mandatory safety standarr!s 30 CFR 77. 404 (a) and 

77.405(b). The inspector also made a finding that the conditions or 

practices cited on the face of the citation constituted an inuninent 

danger and that the alleged violations were significant and substantial. 

Docket No. PENN 81-145-R is the Contest filed by Cambria challenging 

the legality of the imminent danger and significant and substantial 

findings made by the inspector, and Docket PENN 81-204 is the civil 

penalty proposals filed by MSHA seeking penalty assessments for the 

alleged violations. The cases were consolidated for trial in Pittsburgh, 

Pennsylvania, on June 29, 1982, and the parties appeared and participated 

fully therein. Although given an opportunity to file post-hearings proposed 

findings and conclusions, the parties declined to do so" However, I 

have considered all of the arguments made by counsel on the record 

during the trial in the course of these decisions. 

Applicable St&tutory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

~seq., particularly sections 104 and 107. 

21--

.l. l 6 
2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i), which requires 

consideration of the following criteria before a civil penalty may be 

assessed for a ~roven violation: (1) the operator's history of previous 

violations, (2) the appropriateness of such penalty to the size of the 

business of the operator, (3) whether the operator was negligent, (4) 

the effect on the operator's ability to continue in business; (5) the 

gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of 

the violation. 

3. Commission Rules, 29 C.F.R. § 2700.1 et 

The issues presented in these proceedings includes the following: 

(1) whether the conditions or practices cited by the inspector on the 

face of the citation constituted a violation of the cited mandatory safety 

standards, (2) whether the violations were of such a nature as could 

significantly and substantially contribute to the cause and effect of 

a coal or other safety or health hazard, and if such violations were 

caused by the unwarrantable failure of the operator to comply with the 

mandatory health or safety standard, (3) the appropriate civil penalty 

which should be assessed against the operator for the alleged violations 

based upon the criteria set forth in section 110 of the Act. Additional 

issues include the findings of "imminent danger" and "significant and 

substantial" made by the inspector. 

Stipulations 

The parties stipulated to the following (Tr. 6-8): 

1. Cambria Coal Company and the mine in question are 

subject to the Act. 

2. At the time the citation issued, the mine employed 

approximately 180 miners, mined approximately 3,000 

tons of coal a day, and the mine constitutes "a 

fairly large strip mining operation." 

3. The citation in question was issued by a duly 

authorized representative of the Secretary of Labor. 

4. The imposition of a reasonable civil penalty will 

not adversely ~ffect the respondent's ability to 

continue in business. 

5. The respondent's history of prior violations at the 

mine in question was small, and during the preceding 

24-months from the date of the issuance of the 

citation in question the mine was assessed for five 

violations, none of which involved the specific 

mandatory safety standard cited in this case (Tr. 19). 

217'1 
The parties also stipulated as to the admissibility of their 

respective exhibits, and on motion by MSHA's counsel, the witnesses 

were sequestered. 

The citation issued by the inspector in this case, No. 1043746, 

April 9, 1981 (exhibit R-1), describes the condition or practice cited 

as follows: 

Terry Hamilton and Lewis Wagner, employees of this 

company, were doing maintenance work on a Drilltech 

drilling truck Ser. No. 1147303. This truck was suspended in air and not blocked in position (77.40S(b)). 

This truck was being suspended by (3) hydraulic jacks 

mounted on this truck. The front hydraulic ack hose 

was partially removed to test this jack. 

This jack bled off when this hose was cracked indicating 

that it was not maintained in safe condition (77.404(a)). 

MSHA Inspector Leroy R. Neihenke, testified as to his mining 

experience and background, which included work as an electrician and 

mechanic, and he confirmed that he conducted an inspection at the 

mine on April 9, 1981, and that he observed a Drill Tech truck suspended 

in the air by hydraulic jacks near the train loadout building in the 

vicinity of the preparation plant (Tr. 23-27; exhibits C-1 and C-2). 

The truck was a model D40K heavy duty type consisting of three axles 

and ten tires, and it was equipped with one hydraulic jack on the front 

end and two jacks on the rear. The jacks are normally used to level 

the truck during drilling operations, and the jacks are operated by 

levers located inside the cab of the ve~icle (Tr. 30). 

Mr. Neihenke stated that when he observed the vehicle suspended in 

the air by means of the three hydraulic jacks no one was working on or 

in it. The front end of the truck was suspended approximately 12 inches 

off the ground, and the rear end was suspended approximately four inches 

and six inches off the ground at each jack location. He determined these 

distances by visual observation while standing approximately ten feet 

from the vehicle: He observed no blocking materials under the truck, 

and he indicated that solid wood crib blocks would normally be used to 

block the truck to keep it suspended in the air and to it absolutely 

stationary to prevent any movement (Tr. 30-31). 

The inspector testified that a service vehicle was parked next 

to the drill truck in question and two employees were in it. The 

employees confirmed that they had performed work under the suspended truck 

previous to his arrival on the scene changing an oil filter and working 

on the hydraulic lines, but told him that they did not intend to continue 

2175 
the work. He estimated that the work already performed would have taken 

a half an hour, and he also confirmed that the employees-were mechanics 

and that he observed oil on the ground near the front jack as well as 

under the truck: The inspector stated that the mechanics told him that 

they had been under the truck changing the oil filter, but that did 

not have to be under the truck to change the oil. The inspector also 

indicated that even though the mechanics told him they were under the truck 

to change the filter, he did not believe had to be under it since 

the filter can be changed from ~he top of the truck . 35~37). 

The inspector stated that he issued the order because he believed 

the mechanics had been under the truck while it was suspended in the air, 

and that while informed him they did not intend to go under it 

he believed they would if he were walk away". He asked Hamilton, 

one of the mechanics to check one o the jacks to ascertain 

whether it would collapse if the fit were cracked. Norma , the 

jack should remain extended after the fitting was cracked. When the fitt 

was cracked during the test, he observed oil coming out of it and the 

jack started to collapse. This indicated to him that the fitt pilot 

check valve was not functioning the way it was designed to (Tr. 40-42). 

The tested jack dropped for an approximate distance o two inches 

over a five minute period, and if it were func properly it would 

not collapse at all (Tr. 43). He believed that the malfunctioning 

pilot check valve could present a hazard to the men under the truck in 

that in the event a hydraulic hose or a fitting were to burst the jack 

could have collapsed, thereby caus serious or fatal uries to the 

men under the vehicle (Tr. 44). 

The inspector stated that company safety rules \;,lhichwere posted 

in the scale house required that equipment not be worked on until it 

was securely blocked, and in this case the safety rule was not followed 

. 44). He confirmed that the order he issued was the first imminent 

danger order he has issued in the five years he has been employed as an 

MSHA inspector (Tr. 48). He also indicated that the hydraulic jacks 

on the truck did not replace the requirement that the vehicle be blocked 

and that the purpose of the jacks was to level the truck during drilling 

(Tr. 52). 

The inspector stated that after issuing the order, he returned 

to the mine on April 13, 1981, and the truck was in the same position 

as it was on April 9. The rear jacks were still suspended, but the front 

jack had collapsed and the front tires were on the ground. The jack was 

tested again and when it collapsed l/8th of an inch he determined that 

it was still inoperative and he did not terminate the order. He returned 

to the mine again on April 16, but was told the truck would be repaired 

on April 21. He terminated the order on that after test the jack 

again (Tr. 59). 

The inspector confirmed that he cited two standards in his order; 

one for failure to block the equipment, and the other for failing 

to properly maintain the mobile equipment (Tr. 59). He considered the 

condition he cited to be very serious, that an ury could have 

2 1 ~.\ 

.l. { u 
occurred immediately had the men crawled back under the truck, and he 

believed the respondent was negligent in that it is responsible for 

training its personnel as to the proper equipment blocking procedures. 

He also did not believe the respondent acted in good faith in abating 

the condition because of the time period which elapsed between April 9 

until April 21, when repairs were actually made. He also considered the 

violation to be significant or substantial because it was reasonable to 

believe that any injury would be fatal, and that this was a reasonable 

likelihood (Tr. 59-62). 

On Inspector Niehenke confirmed that he is familiar 

with jacks or similar equipment used on surface mining trucks, 

He confirmed that he was familiar with a pilot operated check valve of 

the type used on the truck which he cited and indicated that it was a 

load locking device. He also indicated that the purpose of the jacks 

on the drill truck in question is to the truck level so that an 

accurate vertical hole can be drilled, and are also used to 

the truck from overturning in the event the hole is not drilled correc 

If properly maintained, he believed the jacks would keep the truck in 

a stable position for a long period of time . 68-72). 

The inspector testified that when he first observed the truck, the 

motor was not running and the two mechanics were sit in their service 

truck parked ten feet away taking their lunch break. He confirmed that 

the truck has three leveling jacks, but others which are used to raise 

and lower the boom. He did not know whether the jacks were ful extended 

when he observed it, nor did he know how high the truck could be raised 

by fully extending the jacks (Tr. 74). He confirmed that the two mechanics 

admitted that they .were working under the truck prior to his arrival on 

the scene changing the oil filter and a hose. He assumed they were working 

on a hydraulic oil hose because he observed a puddle of oil under the 

truck, but he could not determine whether the oil in fact came from the 

truck in question. Since the oil was directly under the truck pod, he 

assumed it came from the truck. He con;irmed that the men told him that 

they did not intend to go back under the truck, and when asked why he 

found it necessary to issue an imminent danger order, he replied as 

follows (Tr. 78-79): 

Q. If the men did not intend to go back 

under the truck, what was the purpose of issuing 

the imminent danger order? 

A. I had the rest of my inspection to complete. 

I could not in fairness and good inspection 

procedure walk away from this condition, knowing that 

there was a real possibility that these men would 

crawl back under this vehicle. 

Q. Even after you told them not to, or did you 

not tell them not to go back under? 

2171 
A. At that time, no, I did not tell them. 

Q. Isn't it true that the whole problem could 

have been resolved just by having them lower the 

truck to the ground? 

A. It is not my I am not to direct the 

work force. That is the operator's responsibility. 

Q. Was there not a supervisor there? 

A. At that time, no. 

Q. I believe you indicated that whenever you 

first went to the area, that you had talked with a 

supervisor when you got there? 

A. No, sir, that was in a different area. 

Q, How far away was it? 

A. A hundred 

Q. You could not walk 100 yards or send somebody 

over to get a supervisor to tell somebody to lower the 

jacks? 

A. No. 

Q. You are telling me that in your this 

was so dangerous that you would not tell a person to 

lower the jacks because it created a significant 

imminent immediate peril to the health, safety and welfare of these miners? 

A. We did not direct the work force. 

Q. I believe also in your testimony, you indicated 

that you assumed that they were to crawl back 

under there. On what did you base that assumption? 

A. That fact that had been under the equipment 

to begin with. They stated were under there. There 

was no blocking. It was reasonable for me to assume if 

I was to leave that area, it was reasonable for me to 

assume that these men, because they had dnne it in the 

past, they would do it again. 

The inspector indicated that he had one of the mechanics "crack" 

one of the front hydraulic jack fittings, but not the back ones. He 

did so because he was only concerned with the front jack at that time, 

2 ·~ ~.::i 

.L. 'u 
and his concern stemmed from the oil which he observed on the ground, 

and he assumed that something was wrong with the jack because of the 

presence of the. oil on the ground and the fact that the jack itself 

was covered with oil (Tr. 81-82). His recollection was that it was the 

left hydraulic hose fitting going into the top of the jack (Tr. 83). 

He observed oil coming from the fitting under some pressure for about 

four or five minutes. He did not mark the extension of the j ac.k prior 

to having the fitting cracked, nor did he measure how high the jack was 

positioned prior to the cracking of the fitting. However, he indicated 

that the truck dropped approximately two inches in a period of five 

minutes after the fitting was cracked, and that this drop was slow. He 

determined the drop distance by observing the distance between the truck 

tire and the ground as the truck was slowly dropping . 85). The rear 

jacks were not affected since they act independently from the front one. 

He did not observe the truck for more than five minutes because 

was reasonable to expect that if it fell this distance if five minutes, 

that if a man was under the vehicle, he could be crushed in that distance" 

(Tr. 86) • 

The inspector indicated that his concern was the pinch point from 

the axle to the carriage of the truck or from the ground to the truck axle. 

If someone were to be caught at either point, serious or fatal injuries 

could result. He indicated that the distance between the truck axle and 

ground was "fairly high" and that a man should be able to crawl under 

the truck without it. He conceded that while he never observed 

the distance between the truck axle and , he nonetheless felt 

that this was a possible pinch point where someone could get stuck in 

but that he did not know for sure. He also believed that the are9 between 

the axle, carriage or g~ound could be another pinch point and th~t {f someone 

were to slide under the axle sideways "maybe the axle could come down 

and crush him that way" (Tr. 88). He also stated that his concern was 

over the slow gradual drop of the truck rather than a complete or sudden 

drop (Tr. 89). 

The inspector stated that he did not consider the use of the truck 

jacks as adequate blocking of the vehicle, regardless of the safety features 

on the truck, and that his opinion in this regard is based on his training 

and experience. With regard to the citation concerning the failure to 

maintain the truck in a safe operating condition, he stated that he cited 

this standard because of his concern for the condition of the front jack, 

and that he did not inspect the truck itself to determine actual internal 

working conditions and only concentrated on the jack (Tr. 91). He 

conceded that the pilot check valve spring operates under pressure generated 

hydraulically by the truck motor and with the motor off there would be no 

such pressure (Tr. 96). 

The inspector denied that he ever stated to anyone that he would 

not have issued the imminent danger had Mine Superintendent Morrison 

come to the scene when he called for him, but he admitted that he was 

upset because Mr. Morrison could not get there right away and he was 

217J 
upset because Mr. Morrison "had something more important to do than 

to worry about his personnel" (Tr. 97). The inspector also indicated 

that safety regulations prohibiting work on elevated vehicles unless 

they were securely posted were in fact posted on the bulleting board 

(Tr. 99). 

The inspector did not believe that the respondent exercised good 

faith in the abatement of the violations because of the amount of time 

it took to take corrective action. He indicated that he had no way of 

knowing that the truck was needed, and the failure to timely repair it 

constituted a hazard as far as he was concerned (Tr. 100). He also 

indicated that he was concerned over the fact that he had to go back to 

the mine two or three times to abate the violation (Tr. 102), 

In response to questions from the bench concerning his rationale in 

issuing an imminent danger order, the inspector states as follows (Tr. 

103-105): 

Q. Am I to assume that had you observed this 

truck out by the pit drilling area rather than in 

a raised position stationary with two fellows by 

it, that we probab wouldn't have this case, 

would we, if you were driving by this truck and 

you saw it drilling out there, nothing would have 

come to your attention, would it? 

A. No. It would have been a normal situation 

for me to see this vehicle suspended in the air 

with these jacks while they were drilling. There 

wouldn't have been anything abnormal to it unless 

I would have happened to check this valve, which 

I more than likely would have done. 

Q. So what called this particular situation to 

your attention was the fact that you saw it raised 

and you saw some indication of oil and you thought 

that some fellows had been working on it? 

A. They stated that they had been working 

on it, yes. 

Q. Let me ask you this question. At the 

time that you observed the vehicle, the time that 

you talked to the two employees, and then you spoke 

to one of the foremen there, you spoke to someone, 

you talked to Mr. Morrison.on the phone. What if 

someone in management, mine management, had made 

the decision to lower the truck, in other words, 

put it down full flush to the ground, would that 

have abated the condition? 
A. To me, it would have relieved the imminency 

of the condition, but I would have still issued a 

citation. 

Q. Some kind of citation with a reasonable 

time to take care of the hydraulic problem, is 

that the idea? 

A. Yes. 

Q. Let 1 s assume that the one hydraulic jack 

was not leaking and that it had tested and that 

the condition was okay. You still would have come 

to the conclusion that this being suspended on 

the jack was still an imminent danger? 

A. Yes, I would. 

Q. Even though all three jacks were in proper 

working conditions? 

A. Yes. 

Donald L. Liberatori, employed as a journeyman mechanic with the 

Beckwith machinery company, Clearfield, Pennsylvania, testified that his 

duties include the making of field repairs on caterpillar and Drill Tech 

equipment, and he stated that his experience also includes work on the 

Drill Tech Truck hydraulic jacking system over a period of five·or s1x 

years. He also indicated that on several occasions he worked on various 

hydraulic problems on the trucks similar to the one cited in this case, 

and he checked the front jack on the very truck its~lf (Tr. 117-120). 

Mr. Liberatori stated that the jack in question has a safety pilot 

check valve and he explained how it operates. In order to make the jack 

go up or down the engine must be running and hydraulic pressure between 

1200 and 1500 pounds must be present to overcome the check valves. When 

the engine is not running, there is only 100 pounds of air pressure and 

the jack mechanism will not operate, and this would be true even if someone 

inadvertently activated the controls. Further, each jack cylinder has 

two pilot operated check valves and they must be unseated by hydraulic 

pressure (Tr. 121-123). He identified a sketch of one of the leveling 

jacks and explained the operation of the jack cylinder and how the jack 

is extended (Exhibits C-5, C-3, Tr. 123-128). 

Mr. Liberatori testified that if the hose to the jack in question 

were "cracked" or disconnected oil under pressure would be released from 

the inside of the jack cylinder, but this would not indicate that the 

machine was malfunctioning because oil was coming out (Tr. 130). He 

stated that he was called to the mine on April 9, 1981, to inspect the 

truck jack in question and that he made certain tests and filled out a 

service report. He measured the position of the jack with and without 

hoses. He marked the jack and measured the drop or "drift" distances 

2181 
with a ruler. At 3:14 p.m. the ack cylinder was extended out to a 

distance of 39 and 5/8 inches. At 3:18 p.m. it had dropped to 39 1/4 

inches, and it dropped or "drifted" less than one inch in twelv2 minutes. 

At 3:31 p.m. both hoses were removed from the jack, and 38 inches of 

the was exposed, which indicated a drop of l 5/8 inches with 

both hoses off over a period of 30 minutes. In his opinion, it was 

not unusual for such a machine to drift this distance, and after a further 

drift of another fraction of an inch it would stop (Tr. 129-134}, 

Mr. Liberatori stated that the ruck jacks are des 

not drift or drop more the distances which he ecause 

the dril holes have to be perfect or the machine "will teeter it 

could upset" (Tr. 34). When asked whether the jacks are des to 

hold a piece of elevated stat , he rep:i.ied "it is the same 

, it's all . 135). He expressed 

in question was in proper condicion, 

and he ence of any oil as normal and that it not 

coming from the jack (Tr. 137). 

Mr. Liberatori stateci t he has been under Drill Tech trucks "a 

lot of times", has worked under the truck with the j as the 

support because "there is lot of jobs that that's the wav I can 

get at it." He thac on the terrain, there is 12 to 

14 inches of clearance under the axle, and there is room to crawl through. 

He also indicated that the truck has huge , weighs over 79,000 

pounds, and has steel blocks which limits its travel (Tr. 138). He 

also indicated that there is 8 to 10 inches of clearance between the 

truck axle and carriage and that the area would not compress more. 

an inch because it would hit ~he steel blocks. In order for the truck 

to drop completely there would have to be complete iJ.ot valve failure, 

but that this drop would probab take 10 tcJ 12 seconds, which he believes 

would be reasonable time for anyone to get out from under the machine 

(Tr. 140). 

Mr. Liberatori 

extended, the truck 

the system is des 

dozers because 

stated that with the jacks on the truck fully 

would be securely blocked because that is the way 

He could not say the same for loaders or bulldo not have safety jacks designed to support them 

(Tr. 142). 

On cross-examination, Mr. Liberatori stated that his tests on the 

cited inder was made over a couple of hours duration, that the 

hoses were taken off, and that the jacks protrude far enough 

from the truck so that there was no need to crawl under the truck to check 

the jack (Tr. 146-147). He indicated that he was familiar with the truck 

operations manual and indicated that it says nothing about blocking out 

the vehicle before it is (Tr. 151). He indicated that he would 

not block the truck in question to work on it if 

it was on the day the citation issued, but if it 

he would put it in gear and block it (Tr. 152). 

an extra margin of safety to prevent it from 

it were parked where 

were on an incline 

Blocking would one 

or ro (Tr. 153). 
Mr. Liberatori confirmed that the truck cylinder in question 

was not leaking oil and that if it were it would drop faster than it 

did during his test, and it would eventually jam ~.tself (Tr. 15 7). 

He explained the presence of oil on the outside of the jack as a possible 

leaky seal or 11 0 11 ring, which could possibly cause a drop of a distance 

of 1 1/2 inches (Tr. 159-160). He also indicated that there is almost 

no possibility of the jacks in question completely failing, but he 

conceded that he did not perform routine maintenance on the jack in 

questi6d (Tr. 161). He also con~ed~~ that if the jacks failed completely 

and the truck dropped two inches there is a danger of the truck roll 

upsetting or toppling over if it were in the process of drilling and this 

would present a hazard since the jacks are not fail-safe (Tr. 16l, 166). 

Mr. Liberatori stated that performing maintenance on the truck, 

such as greasing the universals or changing the tires would require it to 

be elevated, and he would feel comp confident doing this work with 

the truck elevated by means of the three jacks and with no 

(Tr. 168). 

c:__:c:..=.i;,.;;.;;_..;;;;;..:_ ... -1'..::.Io=-=.r..::.r..::.i..::.s..::.o=n respondent's General Mine Superintendent testified 

th~t on April 9, 1981, he was at the mine with the crew conduct 

a r~n inspection of the machines at every job site, and he was 

apnrox ma 8 miles from the site of the drill truck which was cited. 

'foe ,- 'Chanic and the inspector called him over the radio. The inspector 

inf med him that the truck had no blocking and was unsafe and wanted 

him to ome to the scene t away. Hr. Morrison advised the inspector 

that he would come as soon as possible, and he eventually arrived at 

the scene some 20 minutes or a half hour later (Tr. 170-173). 

Mr. Morrison testified that he discussed the situation with the 

inspector, and pointed out to him that the jack rod which he believed 

was leaking was actually inside the jack tube or sheathing and that what 

he observed was the outside of the tube. The inspector told him that 

if he had gotten there sooner he would not have issued the order. The 

inspector advisea him that the jack was unsafe because it was leaking, 

and the mechanic took a jack hose off to see whether the jack would drop. 

It dropped about an inch or so and the hose was then reattached. The 

inspector advised him that he wanted the jack removed and repaired, and 

Mr. Morrison advised him that he probably fix it but wanted to check it 

first and that the truck would not be moved from the site (Tr. 175). 

Mr. Morrison stated that after the inspector left the site, one of 

his mechanics removed the hoses and oil came out of the hoses but the drill 

"sat there". There was no internal leak of any oil coming down the 

jack rod. The Beckwith Company was then called to in to check the jack 

and he observed Mr. Liberatori conduct his tests and he concurred with 

his testimony concerning the test results (Tr. 176-177). 

Hr. Morrison stated that the inspector was called back to the mine 

on Monday, April 13, 1981, and was told that there were leaks from the 

2183 
jack rod. The believed it was scored, and before spending 

$2000 to repair the jack Mr. Morrison wanted to make sure it was defective 

(Tr. 177). Mr. Morrison also indicated that the jack moved no more on 

Monday than it did the day the citation issued on the previously Friday. 

The inspector insisted that the jack leaked and indicated that he wouldn't 

remove the order until it was fixed (Tr. 179). 

Mr. Morrison stated that the drill truck in question had not been 

used since it was cited, and that contract drillers have been used since 

that time (Tr. 181). He also indicated that on May 14, 1982, the Inspector 

came to the mine and asked to see the truck so that he could look at the 

checkpoints and valves (Tr. 179). Mr. Morrison believed that the inspector 

issued his order because he (Morrison) did not go to the scene promptly 

(Tr. 182-183). 

On cross-examination Mr. Morrison confirmed that subsequent to 

the issuance of the citation the jack in question was broken down and 

taken apart by Stockdale Mine and found nothing wrong with it. 

He identified exhibit C-6 as the jack after it was returned 

by Stockdale. Mr. Morrison could not recall telling the inspector 

that the jack haa a defective o-ring (Tr. 185). 

Mr. Morrison stated that the work performed on the truck when it 

was cited entailed the of hoses from the truck engine to 

an oil lubrifiner located near the front tire. The mechanics were 

there only to put a hose on the enginer, and this work took "probably 

20 minutes" (Tr. 187). He also confirmed that company policy required 

that vehicles be blocked out when work is performed under them, but that 

the Drill Tech trucks have never been blocked. He also confirm~d th~t 

the imminent order on the truck was the first such order issued at 

the mine and that it caused him some concern (Tr. 187-188). 

Mr. Morrison confirmed that when the inspector returned to the site 

on Monday, 13, the two back wheels were still suspended and the 

tires were off the However, the front jack had collapsed and 

the tire was on the ground. This would indicate that someone either let 

the front jack down or it collapsed by leaking down. Assuming it leaked 

down 12 inches, then he conceded that there would be something wrong 

with it in that it had a leak . 192-193). 

mechanic, testified that he operated the drill truck 

in question years, and for the past three years has performed 

maintenance on it in his capacity as a mechanic. He confirmed that 

at the time the inspector arrived at the scene he and Mr. Lewis 

had just changing an engine oil hose. The inspector asked n1m 

whether or not the front jack would drop if the hose broke loose, and 

when he disconnected the hose at the inspector's request, oil came out 

of the hose and the jack dropped approximately 1/2 inch. Mr. Morrison 

was sununor:~d to the scene and when he arrived the hoses were taken comple 

off and little oil came off and the jack did not move. 

218·J 
Mr. Hamilton denied that the inspector asked him whether he had 

worked under the truck. However, he admitted that he had worked under 

the truck and had his tools there, but that he did not believe it was 

dangerous. He also conceded that when he performs maintenance on the 

truck in question he never blocked it because he believed the truck jacks 

are adequate for this purpose. 

On Mr. Hamilton confirmed that when he repaired 

the enging oil hose he was under the truck, but that it was not jacked 

up at that time. He jacked it up so that the hose could be passed over 

the front wheel fender area. He also confirmed that when he cracked 

the jack hose to test the hydraulic system he was standing on the front 

fender and was in no position to observe any movement of the truck. He 

indicated that he had heard that an "0 11 ring one of the jack valves 

was defective 194-212). 

testified that at the time the order issued he was 

working as a driller on the truck which was cited. At the time, he was 

helping Terry Hamilton repair an oil line which had been damaged the day 

before. The truck was on the at one time during the rs, 

but was subs jacked up to facilitate the installation of some 

clamps. 

Mr. Wagner stated that the jacks on the truck have several 

safety features which prevent the truck from The tor 

asked him to "break the hose" on the front to ascertain whether 

the truck would fall, and when he disconnected the jack hose, the ja~k 

dropped approximately 1/4 to 1/2 inch. He did not measure the distance, 

but simply relied on his experience to estimate the distance. 

Mr. Wagner stated that he had worked with the truck on many occasions 

dril holes, and he estimated that he drilled approximately 30 holes 

on any given shift and had no problems with the jacks functioning p 

He believed the front jack on the truck which was cited was in a good 

and safe operating condition at the time the order was issued. 

Mr. Wagner stated that at the time the order issued, he could recall 

no oil or hydraulic fluid present on the front jack, and if it were there, 

it must have come from the "mast" and not from the hydraulic jack cylinder. 

He denied that he told the tor that he had been wo under the 

truck. 

On s-examination Mr. Wagner confirmed that he never worked 

under the truck, but that Mr. Hamilton was under it at the time he was 

repairing the oil hose. All repairs were completed at the time 

the inspector arrived at the scene, and in view of the fact that he and 

Mr. Hamilton were on a "break" the truck was left in a raised position. 

He confirmed that the tor asked him why the truck had not been 

blocked and that he (Wagner) told the inspector that it had been "on 

the jacks". 

2180 
Mr. Wagner stated that he believed the front truck jack was in 

good condition. He also confirmed that he had heard that an "o" ring 

on the jack had been found to be defective when it was dismantled by a 

maintenance contractor (Tr. 227-242). 

John McElheny, truck mechanic, testified that on April 9, 1981, he 

was asked to disconnect the hydraulic hose line to the front hydraulic 

jack on the Drill Tech truck in question. Present were Mr. Morrison, 

Mr. Wagner, and the inspector. When he disconnected the line, the pressure 

was bled off, oil came out of the hose, but he could not detect any movement in the truck. He had never previously performed any TI:aintenance 

on the truck except for working on the directional turn , but this 

did not his crawling under the truck. 

Mr. stated that he was at the truck area approximately 

15 to 20 minutes while testing it and he saw nothing wrong with the jack 

in question. 

On cross-examination Mr. McElheny stated that because of his position 

on top of the truck at the time the testing was conducted, he was in 

no position to observe any movement of the truck when the jack hose 

line was disconnected. He could not recall observing any 

oil on the ground under the truck, and while he may have observed some 

oil on the cylinder, he did recall whether it was present on 

the hose (Tr. 247-262). 

Gary L. Maney, General Manager, testified that on May 14, 1982, 

he spoke with the inspector concerning the order and citation iri. que9tion. 

The inspector had come to the mine for the purpose of gathering additional 

evidence in preparation for the hearing, and wanted to test the drill 

truck in question. However, the machine was not operable at the time. 

Mr. Maney stated that during his conversation with the tor he stated to 

Mr. Maney that had Mr. Morrison shown up when he called him he probably 

would not have issued the imminent order. Mr. also indicated 

that he had no personal knowledge concerning the condition of the truck 

in question (Tr. 270-275). 

Hr. Morrison was recalled, and he testified that the jack in question 

was taken off the truck and replaced, and he indicated that the company 

did this because the inspector thought it was defective. An 

cylinder was placed on the truck and inspector Niehenke was called back 

to the mine to abate the citation. Mr. Morrison indicated that the company 

still has the parts from the jack that was taken off, and to his knowledge 

the jack was not defective. However, in response to a question as to 

whether the jack cylinder may have had a defective "O" ring, as referred 

to in the tor's notes, Mr. Morrison stated that he could not recall 

telling the inspector that the jack may have had a cracked 11 0 11 after 

it was dismantled by the repair company which gave them a replacement 

(Tr. 278-285). 

~~~-'-'-"---'-"--'--"..,.;._--'=---=--=-=-=-==-=== and he confirmed that repair companies 

the company a replacement and taking 

218G 
the old one for repairs . 289). When asked an opinion as to whether 

the jack dropping an inch and five-eighths within 30 minutes was unusual, 

Mr. Liberatori stated "it's workable" and "you could live with it" (Tr. 290). 

He also indicated that "it was very near normal" (Tr. 291). 

. . . 

~-'-~~~-N_i_e_h_e_n_k_e_ was recalled, and was questioned about his citation 

concerning the allegation that the front jack of the truck was not 

maintained in a safe condition. He stated that he based his conclusion 

that this was so on the oil Or ic fluid that he observed dh the 

outside of the jack and on the He indicated that there was "a 

continual path of oil from the side of the jack to the on the 

(Tr. 294). He confirmed that oil came out when the jack hose was part 

removed to test it, but he conceded that he did not know where the oil 

was coming from and assumed that it was from the jack (Tr. 295), 

The inspector identified exhibit 4-B as the jack hose in question 

and confirmed that the hose was on the outside of the jack housing. He 

also indicated that a drop of two inches when the hose was cracked is 

not normal, and that if the safety valve were operative it should not 

have dropped at all (Tr. 296). Since it did drop, he concluded that it 

was not naintained in a safe condition (Tr. 297). 

As indicated earlier, the inspector issued one citation in this 

case citing conditions or practices which he believed violated mandatory 

safety standards 30 CFR 77.405(b) and 77.404(a). He concluded that the 

failure to block the truck which was suspended in the air by means of 

three hydraulic jacks which were ah integral part of the truck constituted 

a violation of section 77.405(b). After testing the front jack and 

finding that it "bled off", he also concluded that the truck was not being 

maintained in a safe condition, and that the failure to remove it from 

service constituted a violatio~ of section 77.404(a). 

In addition to his charges of violations of the aforementioned cited 

mandatory safety standards, the inspector also found that the conditions 

and practices cited on the face of the citation also constituted an 

imminent danger pursuant to section 107(a) of the Act, and that the 

violations were "significant and substantial" ones. 

Mandatory standard 30 CFR 77.404(a), provides as follows: 

Mobile and stationary machLnery and equipment 

shall be maintained in sah. ing condition 

an<l machinery or equipment .ln u1u;afe condition 

snall be removed from service imm2dia 

standard 30 CFR 77.4Qj~b), provide3 as follows: 

No work shall be performed under machinery or 

equipment that has been raised until such .nachinery 

or equipment has been securely blocKed in position. 

218'/ 
Fact of Violation - 30 CFR 77.404(a) 

Section 77.404(a) requires that equipment be maintained in a safe 

operating condition and that any such equipment which is unsafe is 

required to be removed from service immediately. On the facts of this 

case, .I conclude and find that MSHA has failed to establish through any 

credible evidence that the drill truck was not in safe operating condition 

because of the purported defective front hydraulic jack. At the time 

the inspector looked at the truck, it was not in operation, the engine 

was not running, and at the time the mechanic performed the so called 

test by cracking the hydraulic hose valve, the engine was not started 

and there was no power to the truck hydraulic system. Further, the 

inspector conceded that he had no way of telling precisely what the 

problem was since he "could not see into the internal parts to that 

hydraulic jack" (Tr. 47). He also conceded that he assumed that the 

oil he observed running down the outside of the jack came from the jack 

itself and not from any other source (Tr. 296). He insisted that a 

properly operating pilot safety valve would not have caused the jack 

to drop at all even if it were cracked or bled off as it was during the 

test. When it did, he concluded that the jack was not being maintained 

in a safe operating condition (Tr. 297). 

There is nothing in the record to suggest that the inspector had 

any reason to suspect that the front hydraulic jack in question was 

defective prior to the time the mechanic loosened the pilot check valve 

fitting. The truck caught the inspector's attention because it was elevated 

and not blocked, and that was his principle concern. His concern was that 

with the truck wheels on the ground, a two-inch drop in the front hydraulic 

jack would result in crushing injuries in the event a man were under it 

and had his head between the truck frame and the axle (Tr. 55). However, 

in this case the inspector stated that after the test was conducted on 

the front hydraulic jack, he decided to immediately issue his imminent 

danger withdrawal order. Under these circumstances, the effect of that 

action immediately caused the truck to be taken out of service. Although 

this was not done by the operator, the result is the same. 

Inspector Niehenke believed that the truck was not being maintained 

in a safe operating condition because the front hydraulic jack dropped 

approximately two tnches in five minutes when the hydraulic hose fitt 

was "cracked" or "bled off" when loosened with a wrench. Mr. Niehenke 

asked a mechanic to crack the fitting in order to determine whether a 

pilot check valve was functioning properly. When the fitting was cracked, 

the inspector observed hydraulic oil coming.from the fitting, and he 

concluded that pilot valve was defective. In his opinion, a properly 

operating valve would not permit any oil to come out of the fitting, 

even when cracked or tested. He also believed that a properly operating 

pilot valve would not have permitted the front jack to drop two inches 

when cracked or tested, and stated that the purpose of the check valve 

was to keep the hydraulic cylinder extended even if there was a loss in 

hydraulic pressure due to a broken hose or fitting. 

2188 
The drill truck in question is a.large, three axle machine with 

ten tires, and the purpose of the hydraulic jacks is to keep the truck 

level during the drilling of vertical holes. The truck is normally used 

to drill holes while blast overburden, and as indicated earlier, the 

function of the three hydraulic jacks is to stablize the drill rig during 

the drilling process. During the drilling process the jacks and drill 

are operated by levers by the drill truck operator, and there is no 

to suggest that anyone has to c-rawl under the machine while it is in its 

normal drilling position. Therefore, it seems clear to me that at the 

time the inspector observed the truck in its elevated position it was 

not located where it would normally be while As a matter of 

fact, the truck was near the preparation plant and some maintenance 

was being performed on it by two mechanics who had their equipment in 

a p truck parked nearby. Further, there is no evidence that the 

two rear hydraulic jacks were defective or unsafe. As a matter of fact 

the inspector stated that he did not ask the mechanic to crack the valves 

on the rear jacks since he was only concerned with the front one since 

he observed oil on the outside of the jack. Although he also alluded 

to some oil on the ground, he could not tell whether it came from the 

truck hydraulic jack, and since the mechanics had just completed 

oil filters on the truck it is possible that this was the source o 

oil. 

Respondent's witness Liberatori, a journeyman mechanic whose experience 

included maintenance work in Drill Tech Truck hydraulic systems, testified 

that each hydraulic jack cylinder has two pilot check valves, and 

he stated that in order to make the jacks go up or down the truck engine 

.must be running so that the hydraulic pressure is built· up to a .poin:t 

to overcome the check valves. With the engine off, he indicated that there 

is only 100 pounds of air pressure and that the jack mechanism will 

not work. He also indicated that the jack pilot valves can only be unseated 

by hydraulic pressure, and that if one of the jacks is "cracked" or 

disconnected oil pressure would be released from inside the jack cylinder, 

but that simply because this oil is released in these circumstances does 

not indicate that the jack is defective. He explained the presence 

of any oil on the outside of the jack as a possible leaky seal or ring, 

and he conceded that a total failure of the jack during the drilling 

process could present a hazard. 

On the basis of all of the evidence and testimony adduced in this 

case, I cannot conclude that MSHA has established by a preponderance of 

any credible evidence that the alleged defective pilot check valve on 

the front hydraulic jack in question was defective or unsafe. On the 

facts presented in this case, it seems clear to me that the inspector 

conducted a rather cursory and superficial examination of the jack in 

question. I believe that he decided to issue his withdrawal order when 

he found that the two mechanics had been under the suspended truck without 

blocking it, and that the "testingtt of the jack in question was done in 

an attempt to justify his order. I venture a guess that had the truck 

not been suspended in the air, neither the inspector nor the operator 

218J 
would have any reason to crack ot test the front jack pilot valve, thereby 

releasing the oil and causing the jack to slowly drop for a distance of 

two inches. In short, I cannot conclude that this drop of two inches, 

which I believe was the result of the cracking or lossening of the valve, 

was in fact a safety defect affecting the safe operation of that truck 

while in use during the drilling of overburden. 

In view of the foregoing findings and conclusions, I conclude and 

find that MSHA has failed to establish a violation of section 77.405(a) 

and that nortion of the citation which alleges such a violation IS VACATED. 

Fact of violation - 30 CFR 77.405(b) 

Section 77.405(b) requires that raised machinery or equipment be 

securely blocked in position before any work is performed under it. 

It seems clear to me from the arguments made on the record in this c2se 

that Cambria's position is that the drill truck in question was 

blocked in position by means of the three hydraulic jacks which are an 

integral part of the machine (Tr. 18). On the other hand, it seems equally 

clear to me that MSHA's position is that the three hydraulic jacks in 

question are not a suitable substitute for the requirements that the 

machine be independently blocked by means other than the truck jacks, 

Apart from the testimony presented by Cambria's witnesses with respect 

to the use of the truck jacks to stablize the truck while it was being 

worked on by the two mechanics, Cambria relies on a "policy guideline" 

found in MSHA's "Inspector's Manual", Exhibit R-5, which states as follows: 

Mechanical means that are manufactured as an 

integral part of the machine for the purpose 

of securing a portion of the machine in a raised 

position is acceptable as meeting the requirements 

of this section. 

MSHA's position with regard to the so-called "policy guideline" is 

that it is inapplicable to the facts presented in this case, and that 

other "information bulletins" and "interpretative memorandums 11 make it 

clear that raised equipment such as the truck which was been cited, 

must be blocked by independent means and blocking materials other than 

the jacks in question. After careful consideration of the arguments 

presented, I conclude and find that MSHA has the better part of the argument 

and that the three jacks which are an integral part of the drill truck 

in question may not be used as a 11 suitable substitute" for the blocking 

requirements of section 77.404(b), and my reasons for this finding follow 

below. 

It seems clear to me from the phctographs of the trucki.n question, 

exhibits C-1 through C-4, C-8, and R-4 (a) through R-4 (d), as well as 

the testimony adduced in this case, that the purpose of the three truck 

jacks is to stabilize the truck and maintain it in a level position while 

2180 
actually drilling holes during the blasting of overburden. Keeping 

the truck and secure insures an accurate drill hole and prevents 

a drill from deviating from its intended course and possibly tipping 

the truck over. However, once the truck is removed from the drilling 

site for the purpose of performing maintenance, as was the case here, 

I cannot conclude that the hydraulic jacks, even if were functioning 

properly, could ever insure against a forward or backward movement of 

the truck while in an elevated position. The of the standard 

is specific on this point. It requires understand that 

term the intent and of the standard is some 

means of blocking be used to insure against movement of the equipment 

while maintenance is performed on it. As correctly stated by MSHA's 

counsel ~uring the course of oral arguments during the hearing, '~lo 

means b 11 

It is clear from the evidence and tes adduced in this case 

that the truck in question was raised and that it was not blocked against 

movement by blocking materials independent of the hydraulic jacks. 

Respondent's own witness, mechanic Liberatori, conceded that blocking 

would provide an extra margin of to prevent the machine from 

falling or rolling, and I ect his suggestion that this would not be 

the case if the truck were elevated on level as it 

was in this case. Under the circumstances, that portion of the citation 

charging a violation of section 77. 405 (b), IS AFFIRMED. 

The alleged imminent danger 

"Imminent danger" is defined in section 3(j) of the Act, 30 U.S.C. 

§ 820(j) as: "The existence of any condition or practice in a coal or 

other mine which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated.'' 

Section 107(a) of the Act provides as follows: 

If, upon any inspection or investigation of a 

coal or other mine which is ect to this Act, 

an authorized representative of the Secretary finds 

that an imminent exists, such representative 

shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause 

all persons, except those referred to in section 104(c), 

to be withdrawn from, and to be prohibited from 

entericg, such area until an authorized ive 

of the Secretary determines that such imminent danger 

and the condition or practice which caused such imminent 

danger no exists. The issuance of an order 

under this subsection shall not preclude the issuance 

of a citation under section 104 or the proposing of 

a ty under section 110. 

2191. 
The legislative history with respect to the concept of 

danger," Committee on Education and Labor, HouE;e of Representatives, 

Legislative History of Federal Coal Mine Health and Safety Act of 1969 

at page 44 (March 1970), states in pertinent part as follows: 

The definition of an "imminent is 

broadened from that in the 1952 Act in recognition of 

the need to be concerned with any condition or practice, 

which may lead to sudden 

death or injury before the danger can be abated. It 

is not limited to just disastrous accidents, as 

in the past, but all accidents which could be fatal or 

nonfatal to one or more persons before abatement of 

the condition or practice can be achieved. [Emphasis 

added] 

The concept of an imminent danger as it has 

evolved in this industry is that the situation is 

so serious that the miners must be removed from the 

forthwith when the danger is discovered ***· 

The seriousness of the situation 1 demands such immediate 

action. The first concern is the danger to the miner. 

Delays, even of a few minutes may be critical or 

disastrous. 

The former Interior Board of Mine Operations Appeals has held that 

an imminent danger exists when the condition or observed could 

reasonably be expected to cause death or serious harm to a miner 

or normal mining operations are permitted to in the area before 

the condition is eliminated. The dangerous conclition cannot 

be divorced from v. 

91 F. 2d 277, 

objective and the inspector's 

subjective opinion need not be taken at The question is 

whether a reasonable man, with the inspector's education and experience, 

would conclude that the facts indicate an impending accident or disaster, 

likely to occur at any moment, but not necessarily immediately. Freeman 

Coal Mining Corporation, 2 IBMA 197, 212 (1973), aff'd., Freeman Coal 

v. Inter~or Board of Mine Operations Appeals, et al., 

9th Cir. 1974). The foregoing princ les were reaffirmed 

in Old Ben Coal Corporation v. Interior Board of Mine Operations Appeals, 

et al., 523 F.2d 25 (7th Cir. 1975), where the court, following Freeman 

phrased the test for determining an imminent as follows: 

[E]ach case must be decided on its own peculiar 

facts. The question in every case is essentially the 

proximity of the to life and limb. Put another 

way: Would a reasonable man, given a ied inspector's 

education and , conclude that the facts indicate 

2192 
an impending accident or disaster, threatening to 

kill 9r to cause serious physical harm, likely to 

occur at any moment, but not necessarily immediately? 

The uncertainty must be of a nature that would induce 

a reasonable man to estimate that, if normal operations 

designed to extract coal in the disputed area proceeded, 

it is at least just as probable as not that the feared 

accident or disaster would occur before elimination 

of the danger. 

In a proceeding concerning an imminent danger order, the burden of 

proof lies with the applicant, and the applicant must show by a preponderance 

of the evidence that imminent danger did not exist. Lucas Coal Company, 

1 IBMA 138 (1972); Carbon Fuel Company, 2 IBMA 43 (1973); Freeman Coal 

2 IBMA 197 (1973), However, since withdrawal orders 

are tions within the meaning of section 7 (d) of the Administrative 

Procedure Act (5 U.S.C. § 556(d) (1970)), and may be imposed only if the 

government produces reliable, probative and substantial evidence which 

establishes a prima facie case, MSHA must bear the burden of establishing 

a prima facie case. It should be noted that the obligation of es 

a prima facie case is not the same as bearing the burden of proof. That is, 

although the applicant bears the ultimate burden of proof in a proceeding 

involving an imminent danger withdrawal order, MSHA must still make out a 

prima facie case. Thus, the order is properly vacated where the applicant 

proves a preponderance of the evidence that an imminent danger was 

not present when the order was issued. See: Lucas Coal Company, supra; 

2 IBMA 43 (1973); Freeman Coal Mining Corporation, 

supra; Zeigler Coal Company, 4 IBMA 88, 82 I.D. 111 (1975); Quarto Mining 

Company and Nacco Mining Company, 3 IBMA 199, 81 I.D. 328, (1973-1974); 

3 IBMA 322, 81 I.D. 562 (1974). 

The Seventh Circuit also noted in its Old Be~ opinion that an 

inspector has a very difficult job because he is primarily concerned 

about the safety of men, and the court indicated that an inspector should 

be supported unless he has clearly abused his discretion (523 F.2d at 31). 

On the facts presented in Ben the court observed that an inspector 

cannot wait until the danger is so inunediate that no one can remain in 

the mine to correct the condition, nor can the inspector wait until an 

explosion or has occurred before issuing a withdrawal order (523 F.2d, 

at 34). Thus, on the facts presented in this proceeding, MSHA must show 

that reasonable men with the inspector's education and experience would 

conclude that the condition of the front jack on the truck which was 

cited constituted a situation indicating an impending accident or disaster, 

likely to occur at any moment, but not necessarily immediately. Likewise, 

hSHA must also show that the lack of suitable blocking at the time the order 

issued also presented such an imminently dangerous situation. 

2193 
After careful consideration of all of the testimony and evidence 

adduced in thi~ case, I cannot conclude that the conditions described by 

the inspector in his citation constituted an imminent danger on April 9, 1981. 

At the time the inspector observed the elevated truck no one was working 

under it and the two mechanics who were present were at a safe distance 

eating their lunch in a service truck parked nearby. After observing 

the elevated truck, interviewing the two mechanics and learning that 

they had been under the truck performing some rnaintenance·work shortly 

before his arrival on the scene, the inspector proceeded to examine the 

front jack and he instructed one of the mechanics to loosen or bleed off 

the front pilot check valve with a wrench. It seems to me that if the 

inspector was really concerned about the irruninency of the situation, 

he should have instructed the mechanic to lower the jacks so that all 

of the wheels were safely on the ground before app the truck 

to conduct the so-called test. His statement that he could not do so 

because he 11 does not direct the work force" is inconsistent since he 

specifically instructed and directed the mechanic to loosen the pilot 

valve to perform the test. Since the inspector obviously believed that 

instructing the mechanic to perform this chore was within his authority, I 

fail to understand why he may have believed that instruct him to lower 

the jacks somehow exceeded that authority. In my view, the of 

the jacks would have eliminated any perceived hazard, and permitt 

the mechanic to go ahead and approach the truck and perform the test 

adds to the doubts which I have concerning the presence of any irruninent 

danger at the time the order issued. 

Although he denied telling anyone that he would not have issued 

an imminent danger order had mine superintendent Morrison come to the 

scene immediately when he called him over the mine telephone, the inspector 

did concede that he was upset over Mr. Morrison's failure to come irrunedia•· 

Having viewed the inspector during his testimony that Mr. Morrison "had 

something more important to do than to worry about his personnel", I 

believe that the inspector was somewhat chagrined by Mr. Morrison's failure 

to come to the scene immediately, and that this did influence the inspector's 

judgment somewhat in deciding to issue the order. 

The inspector's asserted justification for issuing an imminent danger 

order was his belief that once he left the scene the two mechanics would 

have gone back under the truck. On the facts presented here, I find nothing 

to substantiate the inspector's speculative conclusion that the two men 

would defy his instructions. One of the two "mechanics" who purportedly 

· were under the tru:ck prior to the inspector's ·arrival at the scene was in 

fact a driller (Louis Wagner) who was helping the mechanic. Mr. Wagner 

testified that he was not under the truck, and he denied telling the 

inspector that he had been under the truck. He also testified that at 

the time of the inspector's arrival all of the work on the truck had been 

completed. The inspector conceded that an oil filter could be changed 

from the top of the truck without the necessity of anyone going under it. 

Further, the facts here also show that the two rear jacks were in proper 

working order. Coupled wi•h my finding that the two inch drop in the 

219·1 
front jack was caused by the deliberate loosening of the fitting during 

the so-called "test", I cannot conclude that the condition of the front 

jack was such as to constitute an imminent danger. In addition, I cannot 

conclude that the absence of b presented any imminent danger on 

the facts here presented. Under the circumstances, thatportion of the 

citation which al an imminent danger IS VACATED, but my findings 

concerning the existence of a violation of section 77.405(b) stand as 

affirmed. 

In v. 

J F}fSHRC 822, issued on ril 7, 1981, the Commission interpre 

104(d) and set forth the test for determining whether a condition 

a particular violation is of such a nature as could 

contribute to the cause and effect of a mine hazard. 

case was a civil penalty pro eleven 

citations in which the inspectors marked the ns & S" block 

on the face of each citation. In that case the Commission held that a 

violation is ignificant and substantial" if --

based upon the particular facts that 

violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature. 

On the facts presented in this case, the inspector marked the "S and 

S" block on the face of the citation form; and at the same time he made 

a finding that an imminent danger existed. However, I find nothing in 

section 104(a) or 107(a) that specifically authorizes an inspector to 

also make an "S & S" finding when he issues such citations or orders. 

The only mention of any "significant or substantial" violation 

is found in section 104(d) ) and section 104(e)(l). The former section 

deals with "unwarrantable failure" citations, and the latter deals with 

"patterns of violations" which are considered to be significant and 

substantial. Under section 104(d)(l), a condition precedent to a finding 

of "significant and substantial" is that no imminent danger exists. 

Therefore, on the facts of this case, the inspector's findings that the 

conditions or practices cited constituted an imminent danger as well as 

significant and substantial violations is somewhat inconsistent. 

In the instant case, it seems obvious to me that the inspector 

believed that the failure to independent block the truck while performing 

maintenance on it while in an elevated position constituted a significant 

and substantial violation of section 77.405(b). Although it may be true 

that the hydraulic truck jacks provide some measure of support for the 

truck wh:Ue it is the actual drilling mode, I am convinced that the primary 

purpose of those jacks is to stablize and level the truck during the 

drilling process so as to insure an accurate drill hole. In this case, 

the truck was not engaged in any drilling, but was parked away from the 

drill site while maintenance was being performed on it. The practice of 

2190 
not using any independent means of blocking under the truck to preclude 

any forward or backward movement while someone may be under it is a 

serious practice which, under the proper set of circumstances, could 

result in serious injuries to those individuals. The question here is 

whether those circumstances were present. While it can be argued that 

at the time the citation issued, the work on the truck had been completed 

and no one was under it, the respondent's candid admission in this case 

that the Drill-Tech Trucks were never blocked is a practice which I 

consider to be a significant and substantial violation. Accordingly, the 

inspector's finding in this regard IS AFFIRNED. 

Size of Business and Effect of Civil Penalty on the Respondent 1 s Ability 

to Remain in Business 

The parties stipulated that the mine is a fairly large operation 

and that the assessment of reasonable penalties will not adversely affect 

the respondent's ability to remain in business. I adopt these stipulations 

as my findings on these issues. 

History of Prior Violations 

The parties stipulated that the respondent has a small history of 

prior violations. In fact, they also stipulated that for the 24-month 

period prior to the issuance of the instant citations, the respondent had 

five paid assessments, none of which were for violations of the same 

safety standards at issue in these proceedings. Taking into account the 

size of the mining operation here, I conclude and find that for the~urpose 

of this proceeding Cambria Coal has a good safety record and that any 

additional increase of the civil penalty assessment made in this case is 

not warranted. 

Negligence 

The evidence here establishes that the notice of mine policy against 

working under elevated equipment without adequate blocking was posted 

on the mine bulletin board, and one of the mechanics admitted he had 

been under the truck in question without any independent means of blocking. 

Under the circumstances, I conclude that the respondent here failed to 

take reasonable care to prevent the cited conditions and that this 

constitutes ordinary negligence. 

Gravity 

I conclude and find that the failure to provide an independent means 

of blocking for the elevated truck in question constituted a serious 

violation. The respondent conceded that it did not use independent blocking 

under such drill trucks because of its belief that the hydraulic jacks 

which are an integral part of the equipment provided adequate support. Although 

respondent may have acted out of a mistaken belief that MSHA's policy 

219G 
guidelines provided an exception for the for independent 

blocking, I find that the practice of relying on the truck hydraulic 

jacks alone while performing maintenance on the truck is serious. 

The inspector believed that the exhibited bad faith in 

correcting the cited conditions and his conclusions in this regard stem 

from the fact that he had to make several t back to the mine before 

he finally abated the order. On one occasion when he went back and found 

that the front jack still dropped an eighth of an inch when tested, he 

refused to abate the order and was compelled to return again. However, 

the facts show that the jack was dismantled and completely replaced with 

a new one. This was apparently done after the operator opted to leave 

the truck where the found it, and there is no evidence that the 

operator used it after it was cited. Simp because the inspector was 

required to make several trips back to the mine to abate the citation 

is no reason to conclude that there was bad faith. Here, the effect 

of the withdrawal order was to remove the truck from service and no abatement 

time was fixed by the tor. The abatement time was therefore up 

to the operator 1 s discretion, and the fact that the ctor may have 

been inconvenienced is not sufficient grounds for me to conclude that 

the operator here exhibited a lack of good faith in finally correcting 

the cited conditions. Accordingly, I cannot conclude that there was a 

lack of good faith compliance in this case. 

Penalty Assessment 

In view of the foregoing findings and conclusions, and taking into 

account all of the statutory criteria found in section llO(i) of the Act, 

I conclude that a civil penalty assessment in the amount of $400 is 

reasonable and for the violation which has been affirmed, 

namely 30 CFR 77.405(b). 

Order 

Respondent IS ORDERED to pay a civil penalty assessment in the amount 

of $400 within thirty (30) days of the date of this decision for the 

violation in question, and upon receipt of payment by MSHA, the civil 

penalty matter should be DISMISSED. 

Distribution: 

Robert A. Cohen, 

4015 Wilson Blvd., 

c~?f: Administrative Kif:~~ Law 

., U.S. Department of Labor, Office of the Solicitor, 

, VA 22203 (Certified Mail) 

Bruno A. Muscatello, ., Brydon, Stepanian & Muscatello, 228 South Main 

St., Butler, PA 16001 (Certified Mail) 

2181 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

RANGER FUEL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

CONTEST OF ORDER 

Docket No. WEVA 79-217-R 

Order No. 0662645 6/4/79 

CONTEST OF CITATION 

Docket No. WEVA 79-218-R 

Citation No. 0660570; 

6/8/79 

Beckley No. 2 Mine 

ORDER OF DISMISSAL 

Contestant requests approval to wit 

in the captioned cases. Under the 

permission to withdraw is ranted. 

cases are therefore dismi ed. 

I 

Mel±c 

stant 

I f 

Distribution: By certifiedlma 1. 

I 

draw its Contests 

stances herein, 

R § 2700.11. The 

Timothy W. Gresham, Esq., P~tt ton R er, Pittston Coal 

Group, Ranger Fuel Corporat!Lon P.O. ox 4000, Lebanon, VA 

24266 \ 

Leo McGinn, Esq., Office of he Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

2196 
FEDERAL MINE SAFETY AND HEALTH REVrEWCOMMISSION 

OFFICE OF ADMINISTRATJVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR> 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MEDICINE BOW COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DECISION 

Civil Penalty Proceed 

Docket No: WEST 82-153 

A.O. No: 48-00900-03028 

Medicine Bow Mine 

This case has been presented on stipulated facts and cross motions 

for judgement. The issue as stated in petitioner's brief, is whether the 

assessment office can properly propose a penalty on the basis of an imminent 

danger order issued under § 107 of the Act. 

For reasons that are unexplained in the record, the MSHA inspector did 

not issue c±tations with the imminent danger order even though the description 

of the imminent danger also described violations of two of the safety standards. 

After the imminent danger order was terminated on December 16, 198l;MSHA modified 

it as follows: 

"The 107(a) order No: 1017366 issued December 15, 1981 

while investigating a fonnal 103(g)(l) miner's complaint 

is hereby modified to include the violations of Sections 

§77-1605(i) and 77-1600(b) of CFR.30. The 107(a) has been 

terminated." 

The above quoted modification was issued on January 4, 1982. 

The Secretary does not argue in its brief, that the inspector made a 

mistake in failing to check the citation block, and that the mistake should. 

be excused. He does not argue that on January 4, 1982 the inspector intended to 

or should have issued 2 citations rather than attempting to modify an order 

that had been terminated, and he <loes not argue that the modification of the 

order had the effect of transforming the imminent danger order into one or more 

citations. In fact, the Secretary's two-page brief does not even mention the 

modification of the order. The Secretary simply takes the position that a 107 

imminent danger order is a proper foundation for a penalty proceeding. 

2198 
The Secretary rAlies on two Commission cases in support of 

its position. In fact the Secretary says that these two cases 

"are dispositive of the legal issue in this case." The firs.t case 

relied on is Secretary of Labor vs. Tazco, Inc., 3 FMSHRC 1895 

(August 1981) It stands for the proposition that if a judge finds a 

violation he can not suspend the payment of the penalty. The 

the second case, Secretary of Labor v~; V~n Mulvehill~ Coal Co. Inc. 

2 F;-.,1SHRC 283 (February 1980) stands for the proposition that i 

a combination citation and imminent danger order is issued, the 

allegation of a violation of a standard survives the vacation of 

the imminent danger order. Far from being "dispositive ",I 

find these cases have little relevance to the curret issue. The 

Tazco case is similar to the RH Coal case decided by 

the tment of the Interior s Board of ~ine erations Appeals 

with reference to the 1969 coal Act 7 IBMA 64(1976). In that 

case Judge Kennedy had issued a default decision in which he 

found that one of the violations was both non-serious and nonnegligent and therefore warranted a penalty of zero. The Board 

reversed and assessed a penalty of $1 because assessment of a 

penalty was considered mandatory. In the Tazco case J 

Kennedy accepted a settlement of $400 but because the mine operator 

had fired the foreman who had caused the violation, he suspended 

payment of the ty. The Commission said that suspension of 

the payment was equivalent to assessing a zero penalty, and that 

that was improper because assessment of a penalty is mandatory. 

But the fact that both the IBMA and the Commission have held that 

assessment of a penal is mandatory if a violation is found, does 

not mean that the procedures set forth in the Act for finding such a 

violation and assessing a penalty can be ign0red. 

Section llO(a) of the Act provides for the assessment of 

penalties for violations of a health or safety standard or any 

other provision of the Act, but Sections 104 and 105 provide 

the procedures for such assessment. Section 104 provides for 

the issuance of citations and orders (but not imminent danger 

orders) for violations of the health and safety standards. 

Section lOS(a) provides for an assessment after "the Secre 

issues a citation or order under Section 104 ••• " There is 

no provision for assessment after the issuance of orders under 

Section 107 of the Act. 

The conversion of an imminent danger order into a combined 

imminent danger order and citation is merely a matter of making 

a checkmark in an appro te box and making reference to the 

appropriate section of the Act. If the Secretary was arguing 

that che omission of this simple step was inadvertent and 

that no prejudice resulted, and that insistence upon the proper 

steps being taken at the proper time would be elevating form 

over substance, 1 would tend to agree. If he argued that the 

amendment of the order to include reference to two safety standards 

had the effect of converting it to a citation, I might agree with that. 

The Secretary, however, advances neither of these arguments. He flatly 

contends that an order issued under Section 107 alone is an appropriate 

2 ,,.) u~~.,' .. r- L 
foundation for the assessment of a civil penalty. I hold that 

it is not. The last sentence of Section 107(a) states "The issuance of 

an order under this subsection shall not preclude the issuance of a citation 

under·Section 104 or the propos ():fa penalty under Section ll0. 11 This 

distinguishes the Mine Safety Act from the Coal Mine Act. Under Section 

104(b) of the Coal Mine Act a notice of violation (citation) could not be 

issued if an imminent danger existed. Under the old Act, an imminent danger 

order was an appropriate foundation for a penalty action. Under the 

present Act it is not. 

The charges st the company are DIS~1ISSED. 

Distribution: By Certified Mail 

Clz,r Cs C l/!al'Y, (,_ 

Charles C. Moore, Jr., 

Administrative Law Judge 

Katherine Vigil, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1961 Stout Street, Denver, 

co 80294 

Brent L. Mochan, Esq., Assistant Counsel, Medicine 

Bow Coal Company, St. Louis, MO 63102 

2201 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 121 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GARRETT CONSTRUCTION COMPANY, 

Respondent 

DECISION 

Docket No: CENT 81-274-H 

A/O No: 41-00906-05001 F KL 5 

Docket No: CENT 81-275-M 

A/O No: 41-00906-05002 KL 5 

Sherwin Plant 

Appearances: Anna Wolgast, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, 

Virginia, for Petitioner 

Before: 

Norman Thomas, Esq., c/o Harris, Cook & Browning, 

P.O. Drawer 1901, Corpus Christi, TX, for Respondent 

Judge Moore 

The three citations involved in these cases all grew out of the 

same-accident. ior some reason the assessment office assigned one of 

the citations a separate assessment number and as a result two penalty 

cases were filed. The accident occurred when two scoop drivers operating 

at an estimated 30 miles per hour and approaching each other in an eastwest direction, both turned north to avoid a collision. They did collide 

and one of the drivers was killed and the other was seriously injured. 

The charges against the company are that the drivers were not in full 

control of their machines, that there were no traffic signs posted and 

that it did not report the accident as soon as it should have. It was 

stipulated that respondent was small, that there was good faith abatement 

and that the assessed penalties would not affect its ability to continue 

in business. 

30 C.F.R. 55.9-24 states "Mobile equipment operators shall have 

full control of the equipment while it is in motion." The citation No: 

171696 states that the accident was due to "failure of the equipment 

operators, to be in full control of the vehicles while in motion." One 

operator, the one who did not survive was going the wrong way in a well 

established traffic pattern. The survivi.i.g driver who W(1S executing the 

traffic pattern correctly does not remember enough about the accident to 

be a valuable witness, but the accident report speculates that he may 

have turned north into the path of the other vehicle just before the 

collision. There is no evidence that either scraper was defective or 

that the operators did not have full control in the sense that the 

scrapers went anywhere other than where the operators wanted to go. The 

fact that a collision occurred does not establish that ~ither of the 

drivers was not in control of his vehicle. See the Commission Decision 

in Secretary v. Old Ben Coal Company, Docket No: LAKE 80-399, FMSHRC 

1800, 1804. Footnote 4. The citation is Vacated. 

220;2 
- 2 -

30 C.F.R. 55.9-71 states: 

Mandatory. Traffic rules including speed, signals, and 

warning signs shall be standardized at each mine and posted. 

As to the word "standardized" I do not believe that the regulation 

requires that all parts of a mine have the same traffic rules. As to 

signals and warning signs, if they exist at the mine then they are 

posted by the very fact that they are there. There is no requirement 

that any particular signals and warning signs be erected. If there is a 

speed limit it would have to be posted but at this particular mine a 

speed limit would have been of no use since the scrapers did not have 

speedometers. 

Mr. Carl White did all the hiring at this construction site and 

interviewed every employee. Mr. White does not speak Spanish and it was 

his view that if the person could speak English well enough to be interviewed 

in English he could speak it well enough to understand directions. Mr. 

Vincel Woods stated that at the beginning of every shift or when there 

was a change in the location where the scrapers were to dump the material, 

he would always take che first run and have the other drivers follow 

him. He always set the traffic pattern in a clock-wise direction. The 

only traffic rule was to follow Mr. Wood's example. Following his 

direction the scoops, with the aid of a push cat, would load dirt in a 

particular area, transport it to the levee being constructed and follow 

a clock-wise path back to the loading area. The road (artuaJly a path in 

a large flat area created by the t~scks of the vehicles) was roughly 

~ircular. A traffic sign advising drivers to follow Mr. Wood's directions 

would not have prevented Mr. Gonzales from going the wrong way. He 

obviously knew which way he was supposed to go and chose to not follow 

the directions. There was some evidence that he had done that in the 

past, but there was no suggestion that he was playing "chicken." A sign 

would not have prevented him from doing it again. The fact remains 

however, that regardless of what the regulation means concerning standardization 

of speed signs, signals and warning signs, it does require that traffic 

rules be posted. This mine did have the traffic rule that the drivers 

would follow the clock-wise traffic pattern demonstrated by Mr. Woods at 

the beginning of each shift or when a new area was being worked. That 

traffic rule should have been posted somewhere at the site of the construction 

work and it was not. The argument that the traffic rules posted 10 miles 

away at the plant are sufficient, is rejected. There was therefore, a 

violation, but since I can not find that it led to the accident I can not 

find that the gravity or negligence was high. The citation is affirmed 

and a penalty of $100 is assessed. 

The accident happened at 4.30 p.m. and MSHA was not notified until 

11.30 p.m., 30 C.F.R. 50.10 states in part "if an accident occurs, an 

operator shall immediately contact the MSHA district or sub-district 

office having jurisdiction over its mine." There were many reasons why 

it took so long to get around notifying MSHA. The accident occurred 

late in the shift, treatment had to be given to the surviving miner, the 

ambulance got lost and had t~ be re-contacted and directed and the 

families of the two victims had to be notified. Mr. Garrett did report 

the accident to the mine owner, Reynolds Metals Company. From his 

2206 
- 3 -

testimony it seems that the main reason he did not report it to MSHA was 

that he did not think it was a requirement. The site had never been 

inspected by MSHA. Garrett Construction Company was constructing a 

reservoir 10 miles from the Reynolds plant for the possible future use 

of Reynolds for the dumping of tailings from its milling process. The 

bauxite involved is mined in South America and sent to Reynolds who 

mills it into alumina and at a later time the alumina is turned into 

aluminum by a process which removes the oxygen. The idea that these 

construction workers did not think were engaged in mining is 

understood. The ordinary usage of the words mine and miner, would not, 

in my opinion, include respondents, but the definitions of mines and 

mining contained in the Act is sufficiently broad to encompass respondent's 

operation. For the latest Commission decision on construction 

employees miners see Sec. v. Inland Coal Company, 4 FMSHRC, 

Docket No: VINC 77-164 (July 15, 1982), 

While I agree with respondents that there were other more important 

matters to take care of before notifying MSHA, there was nevertheless 

some time during this 7 hour period when someone should have notified 

MSHA of the accident. MSHA inspectors could not have arrived at the 

scene any earlier than they actually did but the failure to file the 

report is nevertheless a technical violation, I agree with the assessment 

office that $20 is an appropriate penalty. The citation is affirmed. 

Respondent is accordingly ordered to pay, within 30 days, to MSHA a 

civil penalty iD the amount of $120. 

Distribution: By Certified Mail 

Charles 

~C01~~~ C. Moore, Jr., 

Administrative Law Judge 

Anna Wolgast, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Norman Thomas, ., c/o Harris, Cook & Browning, P.O. Drawer 

1901, Corpus Christi, TX 78403 

The coverage issue (often referred as jurisdiction")is thoroughly 

and convincingly argued in the Secretary's prehearing and supplemental 

hriefs. The construction site is a part of a mine and respondent 

is covered by the Act. 

220·1 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 13, 1982 

SECRETARY OF LABOR, 

on behalf of 

PHILLIP CAMERON, 

Complaint o Discrimination 

Docket No. WEVA 82-190-D 

Applicant 

v. MSHA Case No. MORG CD 82-3 

CONSOLIDATION COAL COMPANY, 

Respondent 

Ireland 

Appearances~ 

Before: 

DECISION 

Covette Rooney, ., Off of the Solicitor, 

U. S. Department of Labor, Philadelphia, 

PA, for Applicant, Phillip Cameron; 

Robert M. Vukas, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, 

Respondent, Consolidation Coal Company. 

Judge Merlin 

This case is a complaint filed under section 105(c) (1) 

of the Act by the Ser.retary of Labor on behalf of Phillip 

Cameron against Consolidation Coal Company alleging that the 

five-day suspension given Mr. Cameron by·the company on 

November 6, 1981, was a discriminatory action in violation 

of section 105(c) (1) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 815 (c) {l). 

The complainant is a haulage motorman at the operator's 

Ireland Mine where he has worked since 1969 (Tr. 10-11, 59, 

122). On October 31, 1981, he was the motorman on a 27-ton 

lead locomotive which pulled a trip 10 to 12 mine cars 

filled with coal from the belt to the dumping point 

(Tr. 10-12, 24). Until that day had operated with a 

single locomotive and if ~ars became detached he used a 

safety switch on the line to derail them and so prevent a 

runaway (Tr. 12-13). He also had a helper, Mr. Aston, who 

rode with him on the locomotive (Tr. 14, 15). Among other 

duties, Mr. Aston helped gather the empties and gave the 

complainant the signal to take on empties (Tr. 14- ). 

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On October 31, 1981, complainant and Mr. Aston were 

informed by Mr. Gibson, the section foreman, that the procedure regarding these tr was changed and that thereafter 

instead of the safety switch there would be a 10-ton trailing 

locomot at the back of the trip to act as a brake if any 

of the cars should uncouple ( . 15, 1.8-19, .124, .3.36) •. The 

complainant and Mr .. Aston told Mra. Gibson did not think 

the 10-ton locomotive was sufficient to hold back the tr 

(Tr. 20, 126). Because that day was a S and other 

sections were not working, a 50-ton locomotive was available 

(Tr. 27). Consequently, for that day Mr. Gibson let the 

complainant and Mr. Aston use a 50-ton locomotive on their 

trips (Tr. 27, 128-129). Mr. Gibson told the complainant 

and Mr. Aston that the use of a 50-ton locomotive was on 

for that and that on the following Monday a 10-ton 

locomotive would have to be used (Tr. 76, 337). 

On Saturday night the complainant telephoned Mr, Shreves, 

an official of the United Workers (Tr. 29). According 

to the complainant, Mr. Shreves with him that the 

10-ton locomotive was inadequate and said that i anything 

came up the complainant should call the union safety committee (Tr. 29, 76-79, 80). On the morning November 2 

before beginning work, the complainant also spoke to Stacy 

Knox, a union safety committeeman for the Ireland Mine, who 

according to the complainant said that if the complainant 

were asked to do anything hazardous he should let Mr. Knox 

know and that Mr. Knox would be available if mine management 

called him (Tr. 30, 79). 

Upon arriving at work Mr. Gibson informed the complainant 

and Mr. Aston that a 10-ton locomotive would be used as the 

trailing locomotive on the trips (Tr. 30, 130-131, 337). 

The complainant and Mr. Aston asked for the union safety 

committee (Tr. 31, 130-131). The complainant's testimony is 

inconsistent th respect to whether he refused to work. At 

times he stated he did not refuse to work (Tr. 70, 71, 73, 

102, 106). At other times he admitted that he had refused 

to work (Tr. 78, 79, 101). The same inconsistency is present 

in Mr. Aston's testimony (Tr. 135, 162-163, 164, 167, 173, 

174). The section foreman testified that both men refused 

to run trips with the 10-ton locomotive as their trailing 

locomotive {Tr. 337, 339). The section foreman stated that 

upon their refusal sent them to Mr. Fleming, the River 

Portal shift foreman, and they were assigned to other work 

carrying cribs (Tr. 133, 134, 337-339). The complainant 

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testif that as the motorman on the lead locomotive he was 

himself in no immediate danger but that he ared for 

Mr. Aston's safety (Tr. 36, 99-100, 103). He also stated 

that a motorman with more seniority, Mr. Schubert, had been 

on sick leave for 2 years but that when Mr. Schubert returned 

he, the complainant; would then be on the trailing locomotive 

(Tr. 36, 38-39). . 

Mr. Fleming telephoned Mr. Omear, the mine superintendent, 

and told him of the actions of the complainant and Mr. Aston 

(Tr. 279). Mr. Ornear testified that he told Mr. F 

again to order the complainant and Mr. Aston back to work 

(Tr. 280). Mr. Ornear stated that he told Mr. F to 

tell the complainant and Mr. Aston that no more than 10 cars 

would be used on each trip (Tr. 289). Mr. Aston then said 

he would work if the order were put in writing (Tr. 162-163, 

174, 280-281). The order to work was not put in writing and 

according to J\1r. Ornear such orders customari are not 

in writing (Tr. 281). Mr. Aston admitted that putting the 

order in writing would not have affected the al lack of 

safety in using the 10-ton locomotive as a trailing locomotive 

(Tr. 175-177). 

Mr. Omear also ordered Mr. Fleming to obtain a 10-ton 

locomotive so that a test could be run to demonstrate to the 

complainant and-Mr. Aston that th~ procedure would be safe 

(Tr. 282). A locomotive was obtained but some of its sanders 

were not working so they were repaired (Tr. 288). In the 

meantime while the complainant and Mr. Aston were loading 

cribs, Mr. Bettinazzi, the operator's safety supervisor, 

spoke to them (Tr. 349). The complainant and Mr. Aston 

again expressed a view that the 10-ton locomotive was not 

safe but Mr. Bettinazzi questioned the position in which 

they were putting themselves because they had not tested a 

10-ton locomotive as a trailing locomotive on any their 

trips (Tr. 349, 352-353). Finally, a 10-ton locomotive was 

ready and tests were performed on two of the steepest 

available grades selected by the complainant (Tr. 49, 96-97, 

98, 138, 139, 189, 241, 289-290, 357). First the trip was 

stopped and the brake of the lead locomotive was then 

released (Tr. 49, 138, 290). Next the trip was allowed to 

drift back about 10 feet before brakes were applied (Tr. 50, 

139, 290-291). In both instances the 10-ton locomotive held 

(Tr. 50, 139, 290, 291, 356-357). The complainant, Mr. Aston, 

and the union safety committeeman, Mr. Wise testified that 

they were not satisfied with the test results because the 

trip had no speed, an actual runaway situation was not 

created and the trolley pole an the trailing locomotive was 

220; 
in the wrong position (Tr. 50, 52, 53, 108, 139-140, 189, 

227-228). However, the operator's superintendent testified 

that during the test the 27-ton lead locomotive remained 

attached to the trip (Tr. 290). This was additional weight 

pressing against the trailing locomotive and would not be 

present in a true uncoupling because in an actual occurrence 

the lead locomotive would detach ltself from the trip 

(Tr. 260-261). Despite their dissatisfaction with the test 

the complainant and Mr. Aston returned to work that day 

(Tr. 52-53, 141). 

On November 5th a further test of the 10-ton locomotive 

was performed for state and MSHA inspectors on the same 

steep grade as the prior test (Tr. 97-98, 245-247). On this 

test the trip was allowed to coast 100 feet before the 

trailing locomotive was used to brake and stop the cars 

(Tr. 142, 189, 191, 257, 261, 268, 292, 358-359). The trip 

stopped within 150 or 200 feet (Tr. 142, 189, 239, 257, 268, 

292, 359). Based upon this test the state and federal 

inspectors felt the 10-ton locomotive was safe (Tr. 189-190, 

257, 292, 295, 359). Mr. Aston was still afraid and testified 

that in his opinion the only way to do a valid test would be 

to have an uncoupling without telling the motorman on the 

trailing locomotive (Tr. 143-146, 262). Mr. Wise, the 

safety committeeman testified that the test was not valid 

because it was controlled (Tr. 189). In particular, he 

objected to the fact that the trolley pole on the trailing 

locomotive had been turned (Tr. 190-192, 227-228). The 

operator's witnesses took the position that the test was 

even more adverse than actual circumstances because in an 

actual uncoupling the cars would come to a stop before they 

started to move back whereas in the second test the cars 

were allowed to move back 100 feet immediately prior to the 

trailing locomotive being used to brake them (Tr. 293-295, 

324-325, 358-359). Moreover, the 27-ton lead locomotive 

remained attached to the trip and again was additional 

weight pressing against the trailing locomotive which would 

not be so in a actual uncoupling (Tr. 260-261, 264). The 

day after the test was performed for the inspectors the 

operator suspended the complainant for five days. 

In Pasula v. Consolidation Coal Company, 2 FMSHRC 2786, 

2799-2800 (October 1980), rev'd on other grounds, Consolidation 

Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 1981), the 

Corrunission held that the complainant establishes a prima f acie 

case of a violation of section lOS(c) (1) if he proves by a 

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preponderance the evidence that (1) he engaged in protected activity, and (2) the adverse action was motivated in 

any part by the protected activity. The Conuuission further 

cided that an operator may respond by either rebutting the 

prima case or if it cannot rebut showing as a 

defense even if part of its mot were unlawful, (1) 

it was also motivated by the rnine~'s unprotected act s 1 

and (2) it would have the adverse act in any event 

the unprotected activities alone. 

It must first be determined what the complainant did. 

As already noted, at times during s testimony the complainant alleged that he on asked for the union s 

committee but did not re e to work (Tr. 70, 71, 73, 1021 

106). At other times he admitted he refus to work 

(Tr. 78, 79, 101). Mr. Aston testified about refus to 

work in a similar contradictory manner (Tr. 135, 162-163, 

164, 167, 173, 174). Mr. son, the section foreman, 

testif that the complainant had refused to work 

(Tr. 337-339). The testimony of the operator's other 

witnesses also was that the complainant had refused to work 

(Tr. 279, 280, 289, 348). Even the un safety committeeman, 

Mr. Wise, who testified for the complainant stated that 

under the circumstances he would say the comp ant had 

refused to work (Tr. 226). I also note that complainant 

and Mr. Aston were assigned to other work (Tr. 40, 133, 

337-339). This assignment makes no sense unless had in 

refused to work. If the complainant asked 

for the s committee, mine management would not on its 

own initiative have disrupted operat s by voluntarily 

assigning him to other work. The haste and urgency with 

which the mine superintendent arranged to test the 10-ton 

locomotive is only explicable light of a refusal to work 

by the complainant and Mr. Aston. The test was arranged in 

order to satisfy complainant so that he would return to 

work. 

The complaint (Para. 5), the Solicitor's prehear 

statement, oral statement at the close of the Secretary's 

case at the hearing, and her f all allege a protected 

right to refuse to work under the circumstances of this 

case. The reason for the complainant's belated protestations 

at the hearing that he merely asked the union safe 

committee obviously was s realization under 

collective bargaining agreement he could to work only 

in conditions that were abnormally and immediately dangerous 

to himself beyond the normal hazards inherent in the operation 

220J 
which could reasonably be cted to cause death or s 

physical harm before (Optr. 's Exh. No. 1, pg. 2). 

At the hearing the comp inant admitted the situation was 

not of this nature (Tr. 37, 75). The great weight of the 

evidence demonstrates the complainant refused to work 

and I so conclude. 

I further conclude the operator suspended the 

complainant because of his refusal to work. The suspension 

letter states that the did not exercise 

individual safety ri good faith under Artie 

section (i) of the Nat Bituminous Coal Wage 

of 1981 which as set forth in the immediately preceding 

paragraph gives a right not to work conditions abnormally and immediately dangerous to himself. 

(MSHA's Exh. No. 1) Even more importantly, the testimony 

all the operator's ses and most particularly the 

superintendent makes clear that it was the complainant's 

refusal to work which so disturbed mine management. The 

superintendent stated that if the complainant had filed a 

safety grievance or had used the safety committee before 

refusing to work he would not have been disciplined (Tr. 318). 

Under applicab Commission decisions a miner may 

refuse to work if he has a good faith, reasonable belief 

regarding the hazardous nature of the condition in question. 

Pasula, supra; Rob v. United Castle Coal Company, 

3 FMSHRC 803 ( Dunmire and Estle v. Northern 

Coal Company, 4 FMSHRC 126 (February 1982). Good faith 

simply means an honest be that a hazard exists. 

Robinette, 3 FMSHRC at 810. A reasonable belief does not 

have to be supported obj ascertainable evidence. 

Rather the miner's honest perception must be a reasonable 

one under the circumstances. Such reasonableness can be 

established at a minimum through the miner's own testimony 

as to the conditions to with the testimony 

evaluated for its detail, logic and overall 

credibility. physical testimonial or expert 

evidence also may be introduced and the operator may respond 

in kind. Robinette, 3 FMSHRC at 812. Unreasonable, 

irrational or completely unfounded work refusals are not 

within the purview of statute. Robinette, 3 FMSHRC at 

811. I conclude that the tests which were performed on the 

10-ton locomotive on November 2 and November 5 demonstrated 

that it could be used sa ly as a trailing locomotive in the 

manner proposed by the This circumstance however, 

does not preclude a reasonable, good faith belief on the 

part of the complainant regarding the existence of a hazard. 

2210 
The Act's protection may be extended to those who possess 

the requisite bel f even if the evidence ultimately shows 

the conditions were not as serious or hazardous as believed. 

Consolidation Coal Company, 663 F.2d at 1219; Dunmire, 

4 FMSHRC at 131. The reasonableness of the be must be 

judged as of the time it was held. 

The complainant said he d not believe the 10-ton 

locomotive was big enough to stop trip of mine cars 

(Tr. 20). The complainant had been a motorman for several 

years and had used a 10-ton locomotive to pull trips of 

supply cars carrying materials such as roof bolts and gravel 

(Tr. 20-21). The complainant maintained that the trips of 

supply cars he had pulled were composed of fewer and smaller 

cars so that they did not weigh as much as a tr of mine 

cars (Tr. 21-23). The operator's witnesses pointed out that 

more power was needed from a lead locomotive which pulls a 

trip than from a trailing locomotive whose function is to 

stop uncoupled cars (Tr. 314-315, 352, 360). But the 

operator's superintendent could not remember whether the 

operator ever had used a 27-ton motor as a lead locomotive 

and a 10-ton motor as a trailing locomotive on main haulage 

(Tr. 311). In termining the honesty and reasonableness of 

the complainant's belief, I find relevant the fact that the 

procedure for using a 10-ton trailing locomotive on a tr 

of mine cars such as the complainant drove was new and had 

not been done previously in this mine. Despite his experience 

as a motorman the complainant therefore, had never been 

confronted with this precise situation .. Moreover, there 

were some grades over which the mine trip had to travel 

which reasonably could· be expected to add to his concern 

(Tr. 23-24). The MSHA inspector testified that until the 

test was performed, he did not know whether the Lrip would 

hold (Tr. 266). After weighing all the evidence I determine 

that the record supports the complainant's position that his 

belief about the safety hazard was in good faith and was 

reasonable. 

This brings us to the most significant issue presented 

by this ca~~~ M~Y a miner refuse to work when he himself is 

in no danger but the risk is to someone else? The complainant 

admitted that use of a 10-ton tr ling locomotive on the day 

in question posed no danger to him (Tr. 36, 99, 100). The 

risk was only to Mr. Aston who would be riding the trailing 

locomotive (Tr. 36, 99). As set forth above, the collective 

bargaining agreement specifically provides that an employee 

will not be required to work under conditions he has reasonable grounds to believe to be abnormally and immediately 

dangerous to himself. Becaus~ .any danger that might have 

been present was not to the complainant himself the 

2211 
arbitrator upheld disc 1 suspension under the 

collective bargaining agreement (Optr's. Exh. No. 1). I do 

not believe the arbitrator's decision is bind here nor do 

I believe it has any collateral estoppel effect under 

criteria set forth by Commission regard the issues 

presented here. Brad v. Belva Coal Company, 4 FMSHRC 

982 (June 1982). Act does not contain language the 

same as or similar to the collective ing 

agreement reg ind danger. In addi , under 

the collective bargain agreement the test of the hazard 

is much stricter than that under the Mine Act and ac 

to the arbitrator's decision ective evidence must support 

the miner's belief. 

The Mine Act does not contain any provision express 

granting a miner the r to re e to work. Relying upon 

islative story and statutory purposes the Commission in 

Pasula interpreted the Act to afford a ri to refuse to 

work in unsafe or unhealthful conditions. 2 FMSHRC at 

2790-2793. However, Pasula presented an individual whose 

own health and safety were ing j zed at the time he 

refused to work. The Commission this very clear in its 

decision as follows: 

Pasula was not merely speculating that he 

might in the future suf from effects 

loud noise, but he was already so suffering when 

he stopped the machine. He was not equipped with 

personal hearing protectors, he had a been 

or would have shortly been exposed to more noise 

than permitted by the appl able mine health 

standard, and he was also operating a machine that 

requires substantial attention to its operation. 

In view his actual suffering, his view that he 

was exposed to unhealthful and excess noise 

levels was reasonable and was supported by 

objective, ascertainable evidence. 

2 FMSHRC at 2793. 

Upon review, the Third Circuit in Consolidation 

Coal Company held that the statutory scheme in conjunction 

with the legislat history supported a right to refuse to 

work in the event the miner possesses a reasonable, good 

faith belief that specific working conditions or practices 

threaten his safety or health, stating in this respect as 

follows: 
Under the circumstances of this case, neither 

party in their briefs took a position contrary to 

the existence of a right to walk off the job. 

Thus, although we need not address the extent of 

such a right~ the statutory scheme, in conjunction 

with the islative history of the 1977 Mine Act, 

supports a right to refuse to work in the event 

that the miner possesses a reasonable, good faith 

belief that specific working conditions or practices 

threaten his safety or health. 

663 F.2d at 1217 n.6. (Emphasis supplied). 

Thus in upholding the to refuse to work the Third 

Circuit referred to the individual's belief of a threat to 

his own health or safety. Although the Court stated it was 

not defining the perimeters of the right to refuse to work, 

s holding that the miner did not have the right to shut 

down a continuous mining machine, thereby ing others 

from working, ind s that the right to refuse to work has 

rather strict limits and that it does not extend beyond the 

endangered individual himself. 

Although the legislative history, as explained in 

Pasula, supports an interpretation of the Act which affords 

a protected refusal to work, it does not support giving this 

right to miners who are not in danger. The relevant committee 

report refers to a refusal to work in conditions believed to 

be unsafe or unhealthful. S. Rep. No. 95-181, 95th Cong., 

1st Sess., at 35-36 (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 623-624 (1978) ["Leg. Hist."]. The discussions on the floor of the Senate and House make clear 

Congress was concerned about individuals who face a threat 

to their own health or safety. Discussion on the Senate 

floor in this respect was as follows: 

Mr. Church. I wonder if the distinguished 

chairman would be good enough to clarify a point 

concerning section 106(c), the discrimination 

clause. 

1J One individual can, course, communicate to the operator 

on behalf of other endangered persons who also have decided 

for themselves not to work. Dunmire, 4 FMSHRC at 134. 

2213 
It is my impression that the purpose of this 

section is to insure that miners will play an 

active role in the enforcement of the act by 

protesting [sic] them against any possible discrimination which they might suffer as a result of 

their actions to afford themselves of the protection of the act. • 

It seems to me that this goal cannot be 

achieved unless miners faced with conditions that 

they believe threaten the safety or health have 

the right to refuse to without fear 

sal. Does the committee contemplate that 

such a right would be afforded under this 

Mr. Williams. The committee intends that 

miners not be faced with the Robson's choice of 

deciding between their s and health or their 

jobs. 

The right to refuse 

that a miner believes in 

his health and safety is 

to achieve its goal of a 

workplace for all miners. 

work under conditions 

good faith to threaten 

essential if this act 

and health 

Mr. Javits. I think the chairman has succinctly presented the thinking the committee on 

this matter. Without such a right, workers acting 

in good faith would not be able to afford themselves their rights under the full protection of 

the act as responsible human beings. 

Leg. Hist. at 1088-1089 (Emphasis supplied). 

Similarly in the House of Representatives, Congressman 

Perkins in discussing the bill as agreed to by the Conference 

Committee stated: 

Mr. Speaker, this legislation also provides 

broader protection for miners who invoke their 

safety rights. If miners are to invoke their 

rights and to enforce the act as we intend, they 

must be protected from retaliation. In the 

admin trative rulings of the Department of 

Interior have improperly denied the miner the 

rights Congress intended. For example, Baker v. 

North American Coal Co., .8 I.BMA 164 (1977) held 
that a miner who refused to work because he had a 

good faith belief that his life was in danger was 

not protected from retaliation because the miner 

had no "intent" to notify the Secretary. This 

legislation will wipe out such restrictive interpretations of the safety discrimination provision 

and will insure that they do· not recur. 

Leg. Hist. at 1356 (Emphasis supplied) . 

The complainant also relies upon the fact that at the 

time in issue Mr. Schubert, who was the senior motorman for 

a lead locomotive, had been on sick leave for 2 years due to 

an accident but that when he returned, the complainant as 

the junior motorman might then be on the trailing locomotive. 

I conclude that what might or might not have happened when 

Mr. Schubert returned to work was too remote and speculative 

on November 2, 1981 to provide a basis for the complainant 

to allege he was any danger. At that time Mr. Schubert 

:r. ·. never have returned or if he did, the complainant 

mi t have been working somewhere else. 2 

Tne complainant has referred to the "buddy" system and 

the principle that the mines, a miner is responsible for 

the safety of his co-workers and especially for one with 

whom he is working as a team (Tr. 40). I recognize and 

acknowledge these factors and I am, course, cognizant of 

the safety purposes which this statute was enacted to 

advance and pursuant to which it must liberally construed. 

Nevertheless, I conclude that the right to refuse to work 

which is after all, on implied and not express cannot be 

so greatly expanded in these proceedings. As set forth 

above, such action would be contrary to judicial prec8dent 

and unsupported by legislative history. Moreover, the 

extension of the right of refusal to individuals such as 

the complainant would have great practical impact in the 

mines by creating the possibil of continual disruption 

in operations through work stoppages caused by challenges 

to management decisions from miners whose health and safety 

are not in danger. The wide ramifications of such situations 

are demonstrated by the record in this case. The mine 

superintendent testified that if the complainant had been 

willing to run the lead locomotive when Mr. Aston had been 

afraid to be on the trailing locomotive, it would have been 

2/ Mr. Schubert did return a few months thereafter but the 

record does not indicate what job he performed upon his 

return or what job the complainant had then (Tr. 39). 
up to mine management to find someone else to go on the 

tr ling locomotive or some other means (Tr. 323-324). Upon 

questioning from the bench, the complainant testified that 

he did not know what he would have done if mine management 

had found someone else to go on the trailing locomotive and 

he indicated that in that event a relevant inquiry would be 

whether or not such other individual was experienced 

(Tr. 117-120). It was clear to me at time I listened to 

complainant and later when I read the transcript that he 

intended to reserve to himself the right to decide whether 

he would accept any other individual assigned by the operator 

to be his tr ling motorman. 

It is therefore only a short step from challenging 

management's de sions to usurping its right to make them at 

all. In light of these factors, I find pertinent and 

persuasive the following statement of the Court of Appeals 

for the Seventh Circuit Miller v. FMSHRC, 687 F.2d 194, 

196 (1982): "We are unwilling to impress on a statute that 

does not explicitly entitle miners to stop work a construction that would make impossible to maintain discipline in the mines." 

The Solicitor and operator's counsel filed detailed 

briefs which have been most helpful in analyzing the record, 

defining the issues and deciding the case. I have reviewed 

and considered these excellent briefs. To the extent they 

are inconsistent with this decision however, they are 

rejected. 

In light of the foregoing, I conclude that the corn~ 

plainant had no right under the Act to refuse to work and 

that therefore he did not engage in protected activity. 

Accordingly, he must be denied rel f and his complaint 

dismissed. 

ORDER 

It is Ordered that the complaint be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

2218 
Distribution: Certified mail. 

Covette Rooney, Esq., Office of the Solicitor, U. S. 

Department of Labor, Rm. 14480-Gateway Building, 

3535 Market Street, Philadelphia,hPA 19104 

Robert M. Vukas, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner Docket No. PE~N 82-83 

v. 

BCNR MINING CORPORATION, 

Respondent 

A. C. No. 36-00967-03107 F 

Clyde Mine 

DECISION APPROVING SETTLEMENT 

Counsel for the Secretary of Labor filed on December 13, 1982, in the 

above-entitled proceeding a motion for of settlement. Under the 

respondent would pay a reduced civil penalty of $2,000 

of $10,000 the Assessment Office for the 

single violation of 30 C.F.R. § 75.200 involved in this proceeding. 

Section llO(i) of the Federal Mine and Health Act of 1977 lists 

six criteria which are required to be used in determining civil penalties. 

As to the criterion of whether the payment of civil penalties would cause 

respondent to discontinue in business, there are no data with re~pect to 

respondent's financial condition in the motiort or in the official file. 

The former Board of Mine Operations held in Buffalo Mining Co., 2 

IBMA 226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), that 

when an fails to present any evidence with respect to its financial 

condition, a judge may presume that the of penalties would not 

affect the operator's ability to continue in business. In the absence of 

anything in the record to indicate that a contrary conclusion should be 

reached, I find that the payment of will not cause respondent to 

discontinue in business. 

There is a considerable amount of materials in the file pertaining to 

the criterion of respondent's history of previous violations. Those materials show that during the 24 months the writing of the violation 

alleged proceeding~ respondent was assessed penalties for 608 violations at its Clyde Mine which is here involved. Under the assessment 

formula which was in effect prior to May 21, 1982, when the violation here 

involved was cited, a total of five penalty points would be assessed under 

section 100.3(c)(l) of ~he penalty formula described in 30 C.F.R. § 100.3. 

It is not possib~e to determine the number of penalty points which should 

be assessed under section 100.3(c)(2) of the penalty formula because che 

record does not contain information showing the number of inspection days 

which were ~ssociated with the assessment of penalties for 608 violations. 

A computer printout submitted by the 's attorney does show, 

however, that 8 violations of section 75.200 were cited at the Clyde Mine 

during the 4 months of 1979 included in the 24-month period preceding the 

2218 
issuance of the withdrawal order involved in this proceeding. During 1980, 

the inspectors cited 32 violations of section 75.200 at the Clyde Mine, and 

during the applicable 9 months of 1981, the inspectors cited 26 violations 

of section 75.200. If the aforesaid number of violations for each applicable period is divided by the number of months during which the violations 

were cited, it will be seen that an average of 2 violations per month of 

se·ction 75. 200 wa·s cited in 1979, an average of ·2. 6 violations per month of 

section 75.200 was cited in 1980, and an average of 2.8 violations per month 

of section 75.200 was cited in 1981. During that same period of time, production at the Clyde Mine fell from 496,846 tons in 1980 to 293,515 tons in 

1981. The foregoing data, therefore, support a conclusion that respondent 

has been cited for an increasing number of violations of section 75.200, 

despite a sharp decline in production, which indicates an unfavorable history of previous violations. In such circumstances, I would have assessed 

a penalty of at least $400 under the criterion of history of previous violations if I had been assessing a penalty in a decision issued on the basis 

of a hearing, assuming that respondent could not, at a hearing, have been 

able to adduce evidence to show that its history of previous violations is 

not as bad as the figures given above seem to indicate. 

As to the criterion of the size of respondent 1 s business, the motion 

for approval of settlement shows that respondent's total production from 

all mines declined from 3,967,334 tons in 1980 to only 1,993,552 tons in 

1981. As indicated in the preceding paragraph, there has been a similar 

decline of production at the Clyde Mine. Even so, respondent should still 

be classified as a large company as to which penalties should be assessed 

in an upper· range of magnitude insofar as they are determined under the 

criterion of the size of respondent's business. 

The motion for approval of settlement states that respondent demonstrated a good-faith effort to achieve rapid compliance by closing down the 

entire section, trimming any loose, unsupported ribs, installing rib posts 

where needed, and reviewing the roof-control plan with the miners. Since a 

withdrawal order was the vehicle used to cite the violation, the inspector 

did not give a specific period of time within which the violation had to be 

abated, but the violation was abated in a subsequent action sheet issued at 

10:30 a.m. on the day following the citing of the violation. In such circumstances, respondent probably should be given some reduction in the penalty otherwise assessable under the other five criteria. I believe that the 

settlement penalty of $2,000 reflects some tempering of the penalty under 

the criterion of rapid good-faith abatement. 

The motion for approval of settlement shows that the primary criteria 

considered by the Secretary's counsel in agreeing to a reduction of the proposed penalty to $2,000 was based on an evaluation of the two criteria which 

have not yet been discussed, that is, gravity and negligence. The violation 

of section 75.200 was cited in Order No. 1050164 which alleged that respondent had violated Safety Precaution No. 29 of its roof-control plan because 

there were loose and unsupported ribs in the No. 5 entry and crosscuts right 

and left of the No. 5 entry near survey station 28+60 in the 2 Flat Section. 

Safety Precaution No. 29 requires that loose ribs be taken down or supported 

by erection of cribs or other supports in addition to the installation of 

roof bolts on 4-foot centers. 

221\J 
There can be no doubt but that the ribs were loose in the vicinity of 

the continuous-mining machine because the operator of the machine was killed 

when the ribs on the left side of the entry fell on him. The motion for 

approval of settlement, however, states that the cited the violation of section 75.200 on the basis of an inspection of the mine at 5 a.m. 

on Thursday which was about 6-1/2 hours after the occurrence of the fatal 

accident on Wednesday evening. The motion for approval of settlement states 

that interviews of the miners working on the 2 Flat Section at the time the 

accident occurred do not show that the ribs on the left side of the entry 

were observably loose prior to the occurrence of the accident, In such circumstances, the motion for approval of settlement concludes that, if a hearing had been held, it would have been difficult for the inspectors to 

that respondent was in failing to observe the loose ribs and erect 

additional rib supports to the occurrence of the accident, 

The motion for approval of settlement shows the applicability of the 

Commission's observation in Old Ben Coal Co., 4 FMSHRC 1800, 1804 (1982) 

where the Commission noted that: 

* * * A violation may occur absent an accident, and an ury or 

death does not ipso facto make out a violation, As here, however, 

an accident may sometimes shed light on an unsafe situation that 

had escaped previous notice or citation. ~~ "~ ~• 

In this proceeding, it is obvious that the ribs were loose or they would not 

have fallen upon the of the continuous-mining machine. ,On t"!:ie 

other hand, there may have been no indication that the ribs were loose 

enough to be observable prior to the occurrence of the accident. The copy 

of MSHA's accident report in the official file shows that the helper to 

the operator of the continuous-mining machine stated that the rib did not 

appear to be loose on the left side of the entry until after a portion of 

the coal pillar had been taken on the left side of the entry. 

The discussion above shows that most of the settlement penalty of 

$2,000 would be assessable under the criterion of gravity because roof and 

rib falls still account for a large percentage of injuries and deaths in 

underground coal mines. As the foregoing discussion of respondent's history of previous violations shows, respondent is still being cited for an 

increasing number of violations of section 75.200. Nearly all violations 

of section 75.200 have a capacity of causing injury or death. Therefore, 

it is appropriate that respondent be assessed a penalty of $2,000 

under the criterion of gravity in the hope that respondent will devote an 

increasing effort to reducing violations of section 75.200 at its Clyde 

Mine. 

The facts discussed above support a conclusion that the settlement 

agreement should be approved because there were sufficient mitigating factors surrounding the occurrence of the alleged violation to support a reduction of the proposed penalty of $10,000 to the settlement amount of 

$2,000. 

2220 
WHEREFORE, it is ordered: 

(A) The motion for approval of settlement filed on December 13, 1982, 

is granted and the settlement agreement is approved. 

(B) Pursuant to the ' settlement agreement, respondent, within 

30 from the date of this decision, shall pay a civil penalty of $2,000.00 

for the violation of section 75.200 alleged in Order No. 1050164 dated 

September 24, 1981. 

Distribution: 

R~:-f;ef~y r;J/Zizjb 

Administrative Law Judge 

(Phone: 703-756-6225) 

Howard K. Agran, Esq., Office of the Solicitor, U. S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Xail) 

B. K. Taoras, ., Attorney for BCNR Corporation, Kitt 

Corporation, 455 Race Track Road, P. 0. Box 500, Headow Lands, PA 

15347 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE ue:c 2i i982 

FALLS CHURCH, VIRGINIA 22041 

MATHIES COAL COMPANY, 

Contestant-Respondent 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner-Respondent 

Contest of Citation 

Docket No. PENN 82-9-R 

Citation No. 1142337; 9/22/81 

Docket No, PENN 82-10-R 

Citation No. 1142336; 9/22/81 

Civil Penalty Proceeding 

Docket No. PENN 82-35 

A.O. No. 36-00963-03182 

Mathies Mine 

Appearances: Janine G. Gismondi, Attorney, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for MSHA; Jerry Palmer, Attorney, 

Pittsburgh, Pennsylvania, for Mathies Coal Company. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated cases were heard on the merits in Pittsburgh, 

Pennsylvania on September 14, 1982. Docket No. PENN 82-35, concerns a 

proposal for assessment of civil penalties filed by the Secretary pursuant 

to Section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. 820(a), seeking civil penalties for two alleged violations of 

certain mandatory safety standards found in Part 75, Title JO, Code of 

Federal Regulations. Docket PENN 82-9-R is the contest filed by Mathies 

Coal Company challenging one of the citations issued in the civil penalty 

case, and Docket PENN 82-10-R is the contest challenging the second citation. 

Issues 

The principal issues presented in the civil penalty pr0ceeding are 

(1) whether ::.ct>1..JV11dent h.:i.s violat:ed the provisions of the Act and implementing 

regulatj ::.11 as alleged in ti1e proposal for assessment of civil penalty 

2222 
filed in this proceeding, and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged violation 

based upon the criteria set forth in section llO(i) of the Act. 

In determining the amount of civil penalty assessments, section llO(i) 

of the Act requires consideration of tpe following criteria: (1) the 

operator'~ history of previous violations, (2) the appropriate~ess of such 

penalty to the size of the business of the operator charged, (3) whether 

the operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violations, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violations. 

The issues presented in the Contests are whether the conditions or 

practices cited by the inspector as the basis for the citations constituted 

significant and substantial violations of the cited mandatory safety 

standards. 

1. The Federal Mine Safety and Health Act of 1977 Pub. L. 95-164, 

30 U.S.C. § 801 et~· 

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

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated that Mathies Coal Company and the subject 

mine are subject to the Act, and that the presiding Judge has jurisdiction 

to hear and decide these cases. The parties also stipulated that the 

payment of the civil penalties proposed by MSHA will not adversely 

affect the operator 1 s ability to continue in business, and that mine 

production for the period January 1, 1982 to May 21, 1982, was 73,000 

tons, and that the mine ceased production on May 31, 1982. 

Section 104(a) citation No. 1142336, September 22, 1981, cites a 

violation of mandatory safety standard 30 CFR 75.1105, and the condition 

or practice is described on the face of the citation as follows: 

The air current used to ventilate the battery 

charging station located in the No. 7 entry 

at surveyor station 3+46 in the 4 face 24 butt 

parallel section MMU054 was not coursed directly 

into the return. The air was going to the working 

face. The charge unit was setting in the middle 

of the entry. (The charge unit has been dangered 

out until a proper station can be constructed.) 
The inspector indicated that the alleged violation was "significant 

and substantial", and he fixed the abatement time as 4:00 p.m., 

September 22, 1981. 

Section 104(a) Citation No. 1142337, September 22, 1981, cites a 

violation of mandatory safety standard 30 CFR 75.1722(a), and the condition 

or practice is described on the face of the.citation as.follows: 

Adequate guarding was not provided for the crossover belt conveyor at the drive head in the 4 Face 

24 Butt Section MMU034. The head drive was not 

guarded so to protect person from corning in contact 

with moving parts. 

The inspector indicated that the violation was "s 

and substantial" and he fixed the abatement time as 12:00 p.m., September 23, 

1981. 

MSHA's 

testified as to his background 

and experience, inspected the mine on September 22, 

1981, and he confirmed that he issued a citation (exhibit G-1) for a 

violation of section 75.1722(a), for failure by the operator to properly 

guard the drive motor or drive head of one of its conveyor belts. He 

described the "drive head" as consisting of two rollers, gear sprockets 

and a chain, and he explained that the belt is laced through the two 

rollersand it drives the belt by pulling it through the rollers as it 

is laced. The drive head is powered by a 460 AC horsepower motor, and 

the drive head roller is approximately 15 to 20 feet in length, and the 

moving parts include the rollers, belts, gears, and chain drive. The 

belt was operating when he cited it and the moving parts of the drive head 

were in motion (Tr. 8-17). 

Mr. Wehr confirmed that the drive head did have a guard around it, 

and he identified exhlbit G-2 as a simulated "drawing of a cutout" 

indicating the type of guard being used (Tr. 17). He described the 

guarding as one-by-six boards nailed across the length of the conveyor 

belt to several posts which were anchored to the mine floor and wedged 

solidly into the roof. The posts were approximately on five-foot centers, 

and the posts were about 8 1/2 to 9 feet high. The posts were of wood, 

approximately 6 to 10 inches in diameter, and the horizontal boards 

extended along a 15 to 20 foot distance for the full distance of the drive 

head, and they were nailed to the posts. The openings in the wooden 

guarding were approximately 2 feet in height and 4 feet wide (Tr. 17-22). 

Mr. Wehr stated that he measured the distance between the existing 

guarding and the drive head itself by a folding rule which he inserted 

through the guard opening, and found that it was approximately two feet. 
These were the narrowest location between the guard and the belt, but 

the separation between the and belt became wider as it went by 

the belt (Tr. 23). 

Mr. Wehr identified exhibit G-3 as a copy of the regulation 

found in MSHA's "manual", and in his opinion the exist guarding which 

he observed on September 22, would not prevent an from possibly 

contact with the parts of the drive head. He believed 

that the guarding openings were enough to allow a person's hand 

to pass through, and the did not comport with the policy 

which state that be small enough to prevent this from 

(Tr. 25) . 

Mr. Wehr testified that one person is normally ass to the belt 

conveyor system to shovel or clean up spillage, conduct hand dusting, 

or to check out the belt, and this is usually during one shift. If 

problems are encountered, extra people may be ass to the belt (Tr. 26). 

In addition, the fire boss or foreman would have occasion to travel 

the belt area for the purpose of conducting his belt line examination, and 

this is required to be done once each production shift . 27). 

He also indicated that the floor bottom in the section is wet and damo, 

and the location of the belt was at the top of a small starting 

in on the section, and these factors would present a sl or fall hazard and 

someone could actually fall the guard openings and suffer possible 

fatal uries (Tr. 28). 

Mr. Wehr stated that he has observed at least ten other similar 

belt heads in the same mine and they are all by wire me.sh 

nailed to boards and posts, or the wire mesh is hung up, and the opening 

in the mesh is approximately one inch square (Tr. 29). He also identified 

exhibit G-6 as a head roller des similar to the one he cited (Tr. 37). 

Mr. Wehr identified exhibit G-l(a), as a copy of his ''inspector's 

statement" which he filled out at the time the guarding citation was issued, 

and he indicated that with respect to the likelihood of any accident 

he marked "probable" (Tr. 60), and the statement was admitted 

ection (Tr. 61). 

In response to bench questions, ector Wehr conceded that the 

exist guarding did guard part of the head roller, and he indicated that 

the roller changes position with to the drive mechanism. He also 

indicated that the distance from the guarding to the roller 

in question was four feet, and the distance from the guard to the drive 

head was two feet. The unguarded parts were approximately two 

feet from the floor (Tr. 62-63). 

Mr. Wehr could not state why the openings around the gua framework were left as they were, but he did indicate that similar wooden 

guarding framework was used around the other belt locations previously 

referred to, but that wire mesh was installed over it to provide a sturdy 

construction. He conceded that the operator made an attempt to 
the area in question, and he confirmed that the belt was newly installed 

and had been in operation for three to four weeks. He also conceded 

that it was possible that the operator intended to cover the framework 

with meshing but had no opportunity to do so (Tr. 64). Although he discussed 

the matter with the operator's escort, Mr. Dunbar, his notes do not reflect 

any specific comments in this regard (Tr. 65). The citation was abated 

by the installation of wire mesh over the guarding framework, and he 

abated the citation on September 29th (Tr. 65). 

Mr. Wehr stated that the bottom horizontal one-by-six board which 

was nailed across the posts was approximately one foot off the ground, 

that the second board was approximately four feet off the ground, and that 

the third board which was located at the top running horizonatlly to the roof 

was "fairly close to the top" (Tr. 65-6 7). In response to a question 

concerning someone reaching the moving belt parts while walking adjacent 

to the framework and slipping, he replied (Tr. 67): 

THE WITNESS: At the distance where the four 

foot mark is, that area, he would probably not come 

in contact with the head roller itself, but the area 

where the two foot is, he would be right into the 

general area of the roller and the drive unit itself. 

Mr. Wehr stated that he observed no one performing any work in the 

belt area at the time the citation issued, but there is a supply storage 

place in the area and an individual was there (Tr. 67). The preshift 

examination was made on the prior shift, and the belt was a working belt 

which was connected to a feeder and the belt portion which had been 

installed was about 250 feet long (Tr. 68). 

Mr. Wehr indicated that the manufacturer of the belt drive did 

provide "a metal guard, two halves that bolt around the gear sprocket, 

gears and the chain on the drive head itsel (Tr. 72). He conceded 

that this guard did decrease the severity where there are two or three 

extra guarded parts, but indicated that his principal concern was the 

two rollers which drove the belt and the belt lacing (Tr. 73-74). In 

reply to further questions from the bench, Mr. Wehr responded as follows 

(Tr. 74-79): 

Q. All right. Looking at that picture, if someone were walking adjacent to this, the post 

they had, which is two feet out from the edge 

of this machinery, someone who accidentally 

slipped on that adjacent walkway or whatever, 

it would take a little bit for him to get into 

those rollers, wouldn't it? The fellow just 

could not walk back there and slip through 

this opening over all this R~eel construction 

and fall into those rollers? 

2220 
THE WITNESS: I'd say it's possible. 

Q. Well, anything is possible, but let us look 

at the real world. How could someone accidentally 

slip through one of these openings and fall over 

that? 

THE WITNESS: The openings itself? I would say 

the possibility is there, plus the guard and type of 

board that you have is one inch and say a fellow that 

is your size is walking along the side and would trip 

and fall, he 1 d more than likely burst through that 

board or he could underneath, strike his head 

against the metal part of that frame. The wetness 

of the bottom and the was another factor into it. 

Q. Was this a regular travel way? 

'I'HE WITNESS: That would have been their wa 

side, as call it. call one side their 

clearance side. 

Q. What I mean is this an area where the miners would 

go through or·is it an area where it is visited 

the examiner or if they had some work to do there? 

THE WITNESS: The examiner and the guy assigned to 

go through that area. 

Q. They do not have anybody permanently stationed at 

this location? 

THE WITNESS: To the best of my knowledge, they 

don't. 

Q. Would a miner walk back and forth through this 

area where they were working and that sort of thing? 

THE WITNESS: No, sir. 

Q. How do perform maintenance on this equipment 

assuming if the mesh were up? Is this mesh permanent installed to these wooden frameworks? 

THE WITNESS: Generally it's set up so it could 

be taken down and put right back up. Generally, the 

rule is that before you take any guards down, they 

have what they call japko switches along the beltline 

and locked. The guards are removed and the cleaning 

process is suppo3edly done there and the guard put 

back on and then you lock it and put the power back 

on. 

222,, 
Q. You were the resident inspector at this point 

for approximately five or six months? 

THE WITNESS: Yes, sir. 

Q. Did you have occasion to look at the other ten 

similar belt mechanisms that were guarded? 

THE WITNESS: Yes, sir. 

Q. Are you familiar with the 

everything? 

process and 

THE WITNESS: Yes, I would say so. 

Q. Did you have occasion to cite them for cleaning 

without locking out the equipment? What has 

been the general practice of the mine, for example, 

when perform maintenance on these moving 

parts? 

THE WITNESS: The maintenance that was observed 

over that period was fine. They did lock it out. 

They took on the precautionary work when they was in 

there doing work. The actual cleaning around the 

belt drive itself, I could not see that. I seen 

them cleaning around the belt but not along the drive: 

Q. What cleaning would be done around the particular 

drive that was not guarded, in your opinion? 

THE WITNESS: A lot of times you have spillage 

coming back from the bottom belt, particularly where 

you would have a scraper in between those two drive 

rollers. It does collect a lot of dirt at times. 

Q. What is the procedure there for cleaning that 

particular location? What do they do with that 

material? Would you say the fellow who is cleaning 

would be in close proximity? 

THE WITNESS: If he has it shut off, he has to move 

the guard and put the back up and shovel it out 

the belt. That is the practice I would observe. 

And, at (TL 94-%): 

Q. If a fellow slipped and the outer guarding, the 

posts, the bo3rds are four feet from the edge of the 

equipment anu then there is another two feet, how 

could he pJssibly fall there? It would have to be a 

conscious act, wouldn't it? 
THE WITNESS: I have problems with what you are 

saying. You are using the four feet. The two foot was 

right close to the rollers. I'm saying the two foot. 

The four feet is the widest part. The two feet is the 

closest to the roller. 

Q. My question is addressed to the four feet. Is it 

possible for someone to get into that unguarded 

equipment if the guard is four feet away from it? 

THE WITNESS: I believe the four foot where it was, 

not really. The two foot area, yes, and there is a 

picture showing where the two foot and the four feet are. 

Q. The existing posts were up to cover that entire 

15 to 20 or 30 feet distance weren 1 t they? 

THE WITNESS: Yes. 

Q. It included the wheel area? 

THE WITNESS: Right. 

Q. If it is not likely that anybody would fall in there, 

I just wonder why management decided to extend it 

for 30 feet, why they put that framing up to 

with. 

THE WITNESS: It is a general practice. This is 

how they guard. They extend it more distance than 

need to, but that's the way to guard. 

Mathies Coal Company's Testimony and Evidence Concerning Citation No. 1142336 

Mathies Coal Company opted not to present any testimony in defense of 

this citation, and counsel indicated during the course of the hearing that 

he stood by his motion to dismiss this citation and he relied on his 

arguments presented during the course of the hearing. 

MSHA's Testimony and Evidence in Support of Citation No. 1142336 

Inspector Wehr identified exhibit G-7 as a copy of the citation he 

issued for an alleged violation of section 75.1105 for failure to properly 

locate a battery charger away from air being coursed directly into the 

!.eturn. The scoop in question was used to charge a scoop tractor which 

was being used on the section. The scoop is usually charged for a couple 

of hours each shift to keep it running, e:nd the scoop is normally used 

two shtfts a day, although at times it is used on three shifts. The 

scoop cannot be used whi.le it is being charged, arrd the purpose of the 

section 75.1105 requirement that the air current used to ventilate the 

battery charger be coursed directly into the return is to carry away 

smoke in the event of a fire, or to carry off explosive hydrogen which 

may be released during the bat charging process (Tr. 99-105). 

2229 
Inspector Wehr identified exhibits G-8 as a sketch he drew depicting 

where the battery charger was located when he observed it, and he stated 

that it was located in the neutral intake entry next to the right return. 

His attention was drawn to the charger when he came from the face area 

and noticed a cable going through a wall over the track entry. He followed 

the cable through two stopping man doors, and he found the cable plugged 

in but with no power on it and the "breaker wasn't set up". He identified 

the cable as the "dotted line'' on exhibit G-8. The cable was hung up 

on well insulated roof and rib insulators from the charger to the belt 

starter box or transformer . 106). The battery charger was some 300 

feet from the belt transformer, and the transformer is not normally used 

as the source of power for the cable. The battery charger was not operating 

at the time he observed it and there was no tag on the power plug. In 

order to energize the battery charger it would have first been necessary 

to e the transformer belt starter box and a scoop tractor timing 

switch would have had to be turned on. The power cable was hooked up 

to the battery c and it did pass through a proper fitting (Tr. 107-

111). 

Mr. Wehr described the air flow over the battery as it 

existed at the time he cited the condition, and he indicated that in 

the event of smoke coming from the battery charger, it would have been 

directed to the wo face or place, or both. He identified the return 

entry on exhibit G-8, and he stated that the air could have been directed 

to the return by means of cracking a stopping door in conjunction 

the use of a check curtain, or the use of a deflector, which is normal at 

the mine in question (Tr. 112-113). He also indicated that the chargers 

are normally ventilated by means of a deflector check (Tr. 116). H~ 

stated that the hazard created by failing to route the ventilating air 

current directly to the return, would - t in eight people in the 

section possibly being affected smoke or hydrogen. They could be 

asphyxiated in the event of a short circuit in the battery charger, and 

the mine moisture or humidity would contribute to the possibility of 

short circuiting (Tr. 119-120). He confirmed that he indicated on his 

"inspector's statement", exhibit G-9, _that the likelihood of the battery 

charger sitting in the middle of the entry where the air was not being 

coursed to the return giving off hydrogen and causing it to be directed 

to the face to be "probable" • 123). He also indicated that the charger 

plugs that go to the scoops looked like they had recently been used (Tr. 124). 

On Mr. Wehr confirmed that section 75.1105 

requires an operator to vent the air current into the return when it 

passes over a bat charger-station, and he confirmed that a battery 

charger is a moveable piece of equipment which may be moved during the 

course of a mining operation. While it is being moved, he stated that 

ic was not possible to ventilate the air current into the return and the 

power c2ble would have to be disconnected when the unit is moved to a 

new location. Mr. Wehr stated that when he looked at the battery 

charger in question it did not appear to him that it was in the process 

of being moved, and he saw no physical sign of it being moved at that 

time (Tr. 128-129). He also indicated that when he asked the inspector 

2230 
escort Dunbar what the charger was doing in the middle of the entry, 

Mr. Dunbar replied that he did not know but would talk to the section 

foreman about it. Mr. Wehr also confirmed that his usual practice is 

to look for an "out of service" tag on the cable, but saw no such tag 

in this instance, and relied on Mr. Dunbar in determining whether the 

charger was being moved (Tr. 130). He also indicated that while he 

could have spoken with the section foreman or other crew members he did 

not do so and relied on Mr. Dunbar. He denied that Mr. Dunbar told him 

that thechargerwas in the process of being moved, and confirmed that 

Mr. Dunbar only told him that he would find out (Tr. 132). 

Mr. Wehr confirmed that the citation was issued 9:30 a.m., and the 

miners on the section would have been there an hour or so before that 

time. He stated that if there were evidence that the battery charger 

was in the process of being moved up or dragged up, the violation would 

not have been issued (Tr. 133). He confirmed that the normal 

in the mine is to locate the charger in the crosscut, but that in this 

case it was located approximately in the middle of the entry (Tr. 133). 

He assumed that the charger had been used on the immediate preceding shift, 

but he spoke with no one on that shift or to the section foreman and he 

explained his reason for not doing so by stating that he deals direc 

with the inspector escort for information unless he has to go to others for 

problems which may have occurred before, and he conceded that he was 

not prevented from speaking to the miners (Tr. 135). He conceded that he 

was not absolutely certain that the charger was used on the previous 

shift, and he based his conclusion that it was not being moved on the 

fact that he saw no physical evidence of any such move (Tr. 136). 

Mr •. Wehr stated that .. he has previously observed hydrogen being 

emitted during a battery charging process, stated the explosive range 

of hydrogen, and indicated that he was present in another mine when another 

MSHA inspector tested for explosive hydrogen. He conceded that before 

anyone could say that the presence of hydrogen is hazardous in such a 

situation, one must know the amount that is present. He did not observe 

any charging process in the instant case, and he conceded that he has 

no evidence to substantiate any conclusion as to any hydrogen emission 

hazard in this case or that an accident was "reasonably probable" or 

that it would "probably occur" (Tr. 142). He also indicated that the 

battery charger was provided with short circuit protection, but he did 

not know whether it was operational because "you would have to tear 

it apart" to determine this. However, even though the charger is not 

permissible, as far as he knew there was nothing wrong with the unit 

(Tr. 144). He also confirmed that the miners have preventive action 

available which they can take in the event of smoke, and these included 

use of their self-rescuer units and the intake escapeway, and he had no 

reason to believe that the miners would not have used these measures 

in the event of an accident (Tr. 145). 

In response to bench questions, Mr. Wehr conceded that he made no 

detailed examination of the battery charger and took no smoke tube readings 

(Tr. 149-150). He als0 conceded that the operator was in compliance with I 

223.i 
the amount of air required to be on the section (Tr. 151). He assumed 

that the charger would be used to charge the battery scoop, and he could 

not recall what Mr. Dunbar told him when he came back after seeing the 

section foreman (Tr. 153). Mr. Wehr was not sure whether he was present 

when the condition was abated, and while his notes are silent on the 

abatement, he believed the citation was abated by moving the charger 

into the crosscut and putting a deflector on it (Tr. 154). He stated 

that the charger is on skids, and that the usual method for moving it is 

by use of the scoop bucket (Tr. 156). 

Mathies Coal Company's Testimony and Evidence 

supervisor, Mathies Mine, testified that he 

accompanied the inspector during his inspection and he confirmed that 

the battery charger was located at the place indicated Mr. Wehr. 

Mr. Dunbar testified that when Mr. Wehr asked for an explanation as to 

the location of the charger, he (Dunbar) told the inspector that he did 

not know but would ask the section foreman. The section foreman advised 

Mr. Dunbar that the charger was not being used because a new power station 

was under construction and that the charger would be relocated and would 

not be used until this was done. Mr. Dunbar stated that when he advised 

Mr. Wehr of this fact, Mr. Wehr told him that "the citation stands". 

He confirmed that Mr. Wehr told him that the battery charger p was not 

deenergized and that it had the on it 163-166). 

Mr. Dunbar stated that even assuming that the charger were to be 

used without the air being vented into the return, he still did not 

believe that the citation was significant and substantial becauqe thf, 

chargers are inspected weekly, and any defective ones are removed from 

service. He indicated that the charger in question was in good condition, 

and he also confirmed that in the event of an emergency, the men in the 

section could use their self-rescuers as well as the designated escapeqay 

(Tr. 166-168). 

On Mr. Dunbar testified that battery charging 

stations have had no problems in the mine and stated that it was his 

understanding that the previous shift had begun the erection of a new 

charging station, and that this is the first step in the process of moving 

the station. He confirmed that the charger in question was not enclosed 

in a metal housing "station" when it was cited because it is a self-enclosed 

unit with no need for an additional enclosure. He confirmed that the 

metal housing could be begun without the necessity of moving the battery 

charger (Tr. 171). He admitted that the charger was moved to the new 

station immediately after the citation was issued (Tr. 176). The section 

foreman in question was not available for testimony because he has been 

laid off. 

Fact of violation - Citation No. 1142336 

The citation charges that the air current used to ventilate a 

battery charger which the inspector found in the middle of an entry 

223;~ 
was not coursed directly into the return. Mandatory safety standard 

30 CFR 75.1105, states as follows: 

Underground transformer stations, batterycharging stations, substations, compressor 

stations, shops, and permanent pumps shall be 

housed in fireproof structures or areas. Air 

current used to ventilate structures or areas 

enclosing electrical installations shall be 

coursed directly into the return. Other underground structures installed in a coal mine as 

the Secretary may prescribe shall be of fireproof construction. 

Mathies Coal Company 1 s counsel argued that MSHA did not prove that 

the battery cited by Inspector Wehr had been used to any 

during the time it was located in the middle of the entry 

(Tr. 172-173). Counsel also asserted that the evidence establishes that 

the battery charger was in the process of being moved at the time the 

inspector observed it, and that no violation has therefore been established 

(Tr. 17 3). 

Upon consideration of all of the testimony and eviaence adduced 

with regard to this citation, I conclude and find that MSHA has established 

a violation of section 75.1105 by a preponderance of the evidence. Mathies 

Coal has not rebutted the fact that at the time the inspector observed 

the charging unit in question it was located in the middle of the neutral 

intake entry, and the inspector's testimony establishes that the ventilation 

system in place at the time was such as to cause the air currents passing 

over the charging unit to be coursed back to the face area and not to 

the return as required. 

With regard to the assertion by Mathies Coal that the charger was 

in the process of being moved, the fact is that at the time the unit 

was observed by the inspector the unit had not been moved to its newly 

located charging station. That was done after the citation was issued. 

The inspector's attention was called to the after he followed 

the course of a power cable which had been hooked into a belt transformer 

to the charger for a distance of some 300 feet and found it in the middle 

of the entry. Although the charger was not in operation charging any 

equipment at the time Mr. Wehr first observed it, the power cable was 

hooked up, it was not out as was the usual practice, and the 

condition of the charger plugs which are normal hooked into the scoop 

while it is being charged led the inspector to believe that the 

had recently been used. In addition, the inspector observed no evidence 

that the unit w&s being moved, and it. was not equipped with a deflector 

which is normally used to course the air into the return. Under all of 

these circumstances, the inspector's belief that the charger had recent 

been used was reasonable. Further, since the power cable was hooked 

up to a power source and was not tagged out, and since there were no 

other indications thac the charging unit was actually moved at the time 

2233 
Mr. Wehr observed it, the assertion by Mathies Coal that the unit "was 

in the process of being moved" is rejected. Although it may be true that 

the was to move the charging unit once the new charging station 

was completed, the fact is that the inspector saw no evidence of any such 

move, and his conclusions to the contrary are supported by the record 

evidence and testimony in this case. The citation IS AFFIRMED. 

Significant and substantial 

In addition to citing a violation of section 75.1105, the inspector 

also concluded that the violation was "significant and subscantial", 

and he marked the appropriate block on the citation form accordingly. 

Mathies Coal challenges that finding. 

In v. 

3 FMSHRC 822, issued on April 7, 1981, the Commission interpreted section 

104(d) and set forth the test for determining whether a condition created 

by a particular violation is of such a nature as could significt otly 

and substantially contribute to the cause and effect of a mine ha~ard. 

The National Gypsum case was a civil penalty proceeding concerning eleven 

section 104(a) citations in which the inspectors marked the ns & S" block 

on the face of each citation. In t_hat case the Commission held that a 

violation is "significant and substantial" if 

based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature. 

On the facts of this case, I cannot conclude that the conditions 

cited by Inspector Wehr constituted a significant and substantial 

violation of section 75.1105. Although Mr. Wehr alluded to certain 

general hazards connected with the failure to vent air coursed over 

a battery charger unit into the return, in the case at hand the evidence 

is clear that no such hazards existed. Mr. Wehr made no tests to detect 

the presence of ari.y noxious gasses, he confirmed that the proper amount 

of air was present on the section, the power cable leading to the charger 

was hung on well insulated roof and rib insulators, no charging was taking 

place at the time he observed the unit, the unit was provided with short 

circuit protection, and Hr. wehr detected nothing wrong with the unit 

itself. He also candidly conceded that before anyone can speculate as 

to whether or not the presence of hydrogen, which is sometimes given 

off when battery chargers are used, can cause an accident, there must 

be some indications as to the amounts given off, and he conceded that 

in this case there is no evidence that hazardous hydrogen was present 

0·1.: that an accident ·wa.s reasonably probable. 

MiDe safety supervisor Dunbar testified that all bat chargers 

:;i.rp_ inspected we':!kly and that any which are found defective are removed 

from service. He indicated that the unit in question was in good condition, 

and he confirmed that miners could use their self-rescuers and the 

designated escapeway in the event of any emergencies. 

223 11 
Given all of the prevailing circumstances, I conclude and find 

that MSHA has not established that the conditions at the time the citation 

issued were significant and substantial, and the inspector's finding 

in this regard IS VACATED. 

Although I have found that the battery charger violation was not 

significant and substantial, I nonetheless conclude and find that it 

was serious. While the prevailing conditions at the time of the citation 

may not have presented a significantly hazardous situation, leaving the 

battery charger in the middle of the entry hooked into a power source 

without the air deflectors presented a potential temptation for someone 

to engage the equipment and attempt to charge a scoop before the-battery 

charger was actually placed into the completed charging station. 

This citation charges Mathies Coal with a failure to adequately 

guard the drive head on a conveyor belt. The cited mandatory safety 

standard, section 75.1722(a), provides as follows: 

(a) 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 . 

. At the conclusion of the inspector's testimony concerning the citation, 

Mathies Coal moved to dismiss his finding that the citation ~as 11 significant 

and substantial 11 • In support of this motion, counsel asserted that Inspector 

Wehr only testified that an injury could be fatal, but did not testify 

·that an injury was "reasonably likely to occur" as required by the decision 

in the National Gypsum case (Tr. 39). When asked whether his motion to 

dismiss also included an assertion that MSHA had filed to establish a prima 

facie case concerning the fact of violation, counsel stated in pertinent 

part as follows (Tr. 40): 

I am not going to argue that. 

inference you wish about that. 

specifically S & S. 

Draw whatever 

I am arguing 

During further colloquy counsel conceded that the issues 

"significant. and substantial" and whether or not. a. vioia.ti~~ of the cited 

mandatory standard has been proved are separate issues for which separate 

findings may be made, and counsel indicated that his motion to dismiss 

the "S & S" finding is based on a lack of evidence to support the inspector's 

conclusion in this regard (Tr. 43-44). 
In further argument in support of his motion, Mathies' counsel 

stated that there is no testimony from the inspector as to whether how 

likely it would be for an injury to occur, but that if the question were 

put to him, he might testify that it is highly unlikely that an injury 

would occur under the factors that he did testify to (Tr. 48). When 

invited by the Court to put that question to the inspector during his 

cross-examination, counsel stated that he would not cross-examine the 

inspector (Tr. 48). 

In response to the motion to dismiss the "S & S" 

counsel asserted that it is not necessary to elicit 

from the inspector that the "reasonable likelihood of 

, MSHA 1 s 

testimony 

been met. Counsel argued that the inspector made that finding when he 

issued the citation and marked the citation form "S & S". Further, 

counsel asserted that it is for the Judge to determine from the facts 

presented in this case whether or not the test has been 

met. Counsel asserted further that the inspector testified as to the 

frequency of employee exposure to the hazard, the likelihood of the injury, 

and the fact that he believed that the incline and wet floor increased 

the possib of someone slipping or falling into the guard and 

making contact with the moving parts of the drive head. As for the 

"could be fatal" testimony by the inspector, MSHA's counsel stated that 

this has nothing to do with the "likelihood of an accident", but rather, 

goes to the seriousness of any ury. Given the facts of this case, 

counsel concludes that if an accident were to occur, it would be reasonably 

serious (Tr. 44-47). Concluding her arguments, counsel asserted as 

follows (Tr. 51): 

HISS GISMONDI: Apparently what Mr. Palmer is 

saying, because in of the fact that the 

witness testified to the underlying facts, 

because it did not come out of his mouth, 

the ultimate conclusion is that it is 

not sufficient. It is my position that it is 

the witness's role to testify to the facts and 

the Court's role to determine the legal conclusion 

of whether or not those facts support a finding 

of a reasonable likelihood of that of an accident 

occurring. 

After due consideration of the argument presented by. counsel, the 

motion to dismiss the "S & S" finding, as well as the citation, was denied 

from the bench (Tr. 55-56). 

Mathies Coal declined to put on any evidence in defense of the 

inspector's assertion that the belt drive head was not adequately 

guarded. In support of the c:i.tation, MSHA 1 s counsel asserted that the 

guard which was in place "allows pretty easy access to the moving parts 

of the drive head by vlrtue of the size of the openings, as well as 

the relatively flimsy construction of the posts and boards that were used 

2238 
as part of the guarding structure" (Tr. 83). In further support of the 

inspector's "S & S" findings, MSHA's counsel argued that two employees 

are in the general area in close proximity to the belt drive head on 

a daily basis, that the mine floor was wet and muddy, and that the belt 

was at the top of an incline, and that it was foreseeable that someone 

in the course of his normal job duties would make contact with the moving 

parts in question (Tr. 83). 

In commenting on MSHA's position, Mathies Coal's counsel pointed 

out that Mr. Wehr's "inspector's statement" contains no information 

concerning the inclined roadway or wet conditions, and that MSHA's 

testimony does not elaborate on the fact that the drive head in question 

was protected by a guard provided by the manufacturer . 86-87). 

It seems obvious to me from the facts of this case that at the time 

the citation was issued Mathies Coal was in the process of erect wire 

mesh guarding for the cited piece of equipment. The conveyor belt had 

recently been installed and at the time the inspector was on the scene 

a framework of posts and wooden planks were in place and provided some 

means of protection for the belt drive head in question. Similar equipment 

at other locations in the mine were already guarded by pract 

identical systems of posts, wooden frames, and wires mesh. Therefore, 

the question presented is whether the posts and planks which were in place 

at the time the citation issued provided adequate guarding as 

section 75.1722(a). 

Inspector Wehr testified that at the time the citation was issued 

the belt was in operation and the moving parts of the drive head in 

question were in motion. Although the drive head was partially protected 

by the existing guarding system framework, the inspector's concern was 

over the fact that the large openings in the framework provided 

access to the exposed moving parts of the belt head drive. Although 

Mr. Wehr conceded that a built-in guard was installed on the conveyor 

to protect the gear sprocket and drive head chain, he indicated that his 

principal concern was with the belt lacing and two drive rollers which 

he believed were totally unprotected. Although he conceded that one of 

the unguarded rollers was at a distance of four feet or more from the 

machine frame and existing guarding, and that it was unlikely that 

anyone would contact that point, he also indicated that at a second 

unguarded location the distance from the existing guarding to the unprotected 

roller was only two feet, and that if anyone happened to fall at that 

area they could easily reach the unguarded belt drive rollers and lacing. 

I conclude and find that MSHA has established a violation of section 

75.1722(a), by a preponderance of the evidence. Although the 1:onditions 

cited are mitigated by the fact that an existing semblence of a guarding 

system was in place :i.t the time the inspector viewed the conditions, 

the fact is thnt i.n at: least one location where the distance from the 

unguarded pinch ~oint to the existing guarding framework was two feet, the 

opening which was unguarded was sufficient large enough to permit son~one 

to fall in and reach the pinch poinc. While I reject MSHA' s notion 

223 '; 
that the existing guarding framework was 11 flimsy", it seems clear to me 

that the wire meshing which is obviously nailed over the framework was 

not yet in place, and the existing openings were enough to permit 

contact with the belt rollers. To that extent, MSHA has established 

a violation, and the citation is therefore AFFIRMED. 

Significant and substantial 

On the of this case, I conclude and find that MSHA has established 

that the conditions cited by the inspector constituted a significant 

and substantial violation of section 75.1722(a). HSHA established by 

credible evidence that the belt was in operation at the time the inspector 

viewed the conditions, and that at least two people were normally in 

the area during the course of any work shift. Although it is true that 

most of the belt drive location was by posts and wooden 

the actual wire mesh which the operator normally used to such belt 

drive locations had not as yet been installed at the time of the inspection, 

and at least one of the unguarded locations was two feet from the belt 

rollers and lacing. I conclude that this location was not adequately 

guarded to prevent anyone from coming into contact with the moving parts, 

and to that extent the violation is significant and subsLantial, 

the inspector's finding in this regard IS AFFIRMED. 

Gravity 

I conclude and find that the failure to completely guard the cited 

conveyor belt drive head constitutesd a serious violation, particularly 

at the one location where the pinch point was some two feet from the edge 

of the open guarding framework. 

Negligence 

I conclude and find that both citations which have been affirmed 

resulted from Mathies Coal Company's failure to take reasonable care to 

prevent the conditions cited by the inspector in these proceedings. 

With regard to the guarding citation, since the operator here went to 

the trouble of erecting a guarding system framework, it seems obvious 

to me that it was aware that the belt head drive location required guarding. 

As for the bat charger, I believe that a closer attention or examination 

to the area where the charger was found by the inspector would have alerted 

the operator to the existence of the cited conditions, thus enabling 

the operator to at least tag out the charger until such time as the 

asserted move was completed. I find that both citations resulted from 

ordinary negligence. 

Good Faith_Compliance 

With regal'.'d to the guarding citation, the inspector testified that 

abatement was achieved within the time allowed, and that he considered 

this to be ordinary good faith abatament (Tr. 85-86). 

2233 
With regard to the battery charger violation, the evidence 

establishes that the charger was moved into the charging station and 

that a deflector was installed on the unit to course the air into the 

return. It would appear that all of this was done in good faith and 

there is no evidence to the contrary. Accordingly, I conclude that 

good faith abatement was timely achieved by the operator in this case. 

Abilitv to Continue Business 

The parties stipulated that the payment of the proposed civil 

will not adversely affect the company 1 s ab to remain in 

business, and I adopt this as my finding on this issue. Further, the 

stipulated mine production of 73,000 tons for the period January 1, 1982 

to May 21, 1982, leads me to conclude that the mine in question is a 

medium-to-large sized operation, and I take note of the fact that mine 

production apparently ceased on 31, 1982. 

History of Prior Violations 

MSHA 1 s Exhibit G-10, purports to be a computer print-out submitted 

by its counsel by letter dated September 21, 1982. The letter states 

that for the 24 month period preceding the issuance of the citatio~s in 

issue in this case the Mathies Mine had 890 paid violations, 17 of which 

are for prior violations of section 75.1722(a), and 13 of which are for 

violations of section 1105. 

At the time of hearing, MSHA's counsel did not have the co~put~F 

print·-out, and she was permitted to file it post-hearing. However, I 

note that the print-out submitted by counsel appears to be a partial 

listing, since the itemized citations contained on the three pages reflect 

a total of 141 violations, some of which are for violations subsequent 

to the dates of the citations in issue here. In addition, while the 

print-out contains a "certification" by someone from MSHA's Office of 

Assessments attesting to the authenticity of the print-out, the printout itself contains no mine identification data to support the claim that 

it is in fact the data from the subject mine. 

Since the information submitted by MSHA purporting to show the 

history of prior violations is confusing and incomprehensible, IT IS 

REJECTED. Insofar as this item is concerned, since I cannot understand 

it, I will not consider it. 

Penalty Assessments 

In view of the foregoing findings and conclusions, respondent is 

asseEsed civil penalties fo:c the two violations which have been af firm~d 

as fo:.J ows: 

2239 
Citation No. 

1142336 

1142337 

9/22/81 

0/22/81 

ORDER 

30 CFR Section 

75.1105 

75.1722(a) 

$300 

225 

$525 

Respondent IS ORDERED to pay the civil penalties assesseq in this 

matter, in the amounts shown above, within thirty (30) days of the date 

of these decisions, and upon receipt of payment by MSHA these proceedings 

are dismissed. 

Distribution: 

~ A,JA, ~~Kout~~ Administrative Law Judge 

Jerry F. Palmer, Esq., Consolidation Coal Co., Consol Plaza, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

Janine C. Gismondi, Esq., U.S. Department of Labor, Office of t9e S~licitor, 

3535 Narket St., Philadelphia, PA 19104 (Certified Mail) 

Harrison B. Combs, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

(Certified Mail) 
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. 

JOHN PETERSEN, d/b/a TIDE 

CREEK ROCK PRODUCTS, 

Respondent 

(703) 756-6210/11/12 

Civil Penalty Proceeding 

Docket No. WEST 80-457-M 

A.O. No. 35-02479-05002 

Tide Creek Pit 

DECISION 

Appearances: Faye Von Wrangel, Attorney, U.S. Department of Labor, 

Seattle, Washington, for the petitioner; Agnes Marie 

Petersen, Esquire, St. Helens, Oregon, for the respondent. 

Before: Judge Koutras 

This is a civil penalty proceeding initiated by the petitioner 

against the respondent pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(a),, seeking a civil penalty 

assessment for six alleged violations of certain mandatory safety standards 

found in Part 56, Title 30, Code of Federal Regulations. Respondent 

filed a timely answer and notice of contest and a hearing was convened 

in Portland, Oregon, October 27, 1982. The parties appeared and participated 

fully therein, and they waived the filing of posthearing proposed findings 

and conclusions. However, I have considered the arguments advanced 

by the parties in support of their respective cases during the course 

of the hearing in this matter, as well as respondent's arguments set forth 

in its trial memorandum submitted at the hearing. 

Appl icabl·e Sta tu to ry and Regula t()_EY. Provis ions 

1. The Federal Mine Safety and Health Act cf l(J77, Pub. L. 95-164, 

30 u.s.c. § 8~1 ~~.9.., 

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

3. Commission Rules, 30 C.F.R. §' 2700.l et 

2241 
Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the petition for assessment of civil penalties 

filed in this case, and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged violations 

based upon the criteria set f.()_:t::th s.ect.:L.o.n llO(i) of the ... Act. Additional 

issues raised are identified and disposed of where appropriate in the 

course of this decision. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator, (3) whether 

the operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

The parties stipulated to the admissibility of exhibits C-1 and C-3 

through C-6. Respondent objected to photographic exhibit C-2 is that it 

purports to show an acetylene bottle, whereas the citation cited oxygen 

bottles (Tr. 10-11). The parties also stipulated to the admissibility 

of respondent's exhibits R-1 through R-4 (Tr. 15), and that cit?tion no. 

349567 may be amended to reflect the correct standard. 

Respondent's request for a visit to the mine site was brought 

to my attention for the first time on the day of the hearing. In view 

of my trial docket which called for me to travel to Medford, Oregon, on 

the afternoon of the conclusion of the hearing in this case respondent's 

counsel was advised that I would not be able to visit the mine site as 

requested since time would not permit (Tr. 114). 

Discussion 

The citations issued in this case are as follows: 

Citation No. 349567, (as amended) May 8, 1980, 30 CFR 56.15-2: 

The owner, John Peterson and also the truck 

driver were not wearing hard hats around 

the plant area. 

Citation No. 349568, May 8, 1980, 30 CFR 56.16-5: 

3 Oxygen bottles were in the plant area and 

were not secured in any way. Two were lying 

on the ground, one was leaning against the 

frame work of a conveyor belt. 

2242 
Citation No. 349569, May 8, 1980, 30 CFR 56.14-3: 

The self cleaning tail pulley on the conveyor 

belt to the storage hopper was not completely 

guarded. The pulley was approximately 5 feet 

above ground level. Employees were occasionally 

in the area when the ... plant was operating. 

Citation No. 349570, May 8, 1980, 30 CFR 56.15-4: 

The owner was breaking a rock in the jaw crusher 

with a sledge hammer without any eye protection 

to prevent injury to his eyes from flying rock 

particles. 

Citation No. 349571, May 8, 1980, 30 CFR 56.14-3: 

The V-belt drive on 

completely guarded. 

5 feet above ground 

the Rolls crusher was not 

The belt was approximately 

level. 

Citation No. 349572, May 8, 1980, 30 CFR 56.14-3: 

The V-belt drive on the small Jaw crusher was 

not completely guarded. Employees were 

occasionally in the area while the plant was 

in operation. 

Petitioner's testimonv and evidence 

MSHA Inspector Patrick Bodah testified as to his background and 

duties, and he confirmed that he conducted an inspection as the respondent's 

mine site on May 8, 1980. He indicated that he had inspected the site 

on several previous occasions, and that he knew the owner John Petersen. 

On May 8th he met Mr. Petersen at the mine and he accompanied him during 

his inspection rounds. Mr. Bodah described the mining operation as a 

rock crushing operation, and the "plant" comprised approximately 1/2 

acre of ground, and he considered this to be a small operation. There 

were approximately three people in addition to Mr. Petersen working there 

when he inspected it, and he indicated that the entire operation could 

be viewed from one location (Tr. 16-20). 

With regard to his citation for failure to wear hard hats, Mr. Bodah 

c~nfirmed that he issued it because Mr. Petersen was not wearing a hard 

ha~ when he met him, and he did not have one on during the inspection 

rounds. In addition, a truck driver near the crusher loading hopper was 

not wearing a hard hat when he got out of his truck during the loading 

process. Mr. Petersen performed work breaking up a large rock and he 

was not wearing a hard hat. The truck driver was out of his truck and 

around the loading area without a hat on. Mr. Bodah believed that the 

hazards involved in not having a hard hat on were being struck en the 

head by falling objects or rocks or running into, or bumping into, low 

2243 
overhead beams. The plant belts and crushers were in operation and they 

were located above the truck driver's head, and he would be subjected 

to being struck by falling rocks. He indicated that occasionally, a 

large rock will pop out of a crusher. Mr. Petersen was in the crusher 

area and he would be subjected to the same hazards. Mr. Bodah discussed 

the matter with Mr. Petersen, and Mr. Petersen indicated that he instructed 

his employees to wear hard hats, but that he personally would not wear 

one (Tr. 20-24). 

Mr. Bodah identified exhibit C-1 as a photograph of the unsecured 

oxygen bottles which he cited. He observed them to the left side of the jaw 

crusher area as he walked from his automobile, and while his recollection 

was not clear, he believed that one was lying on the ground and the other 

was leaning against something. He considered the unsecured bottles to be 

a hazard because "oxygen bottles are under high pressure; and if a truck 

should run over one or if something should fall on one and knock the 

neck out of it, it becomes sort of a missile. It can do a lot of damage" 11 

(Tr. 25). MSHA's counsel withdrew the photograph after conceding that 

the bottles depicted therein were in fact acetylene bottles (Tr. 28). 

However< the inspector clarified the matter by stating that the oxygen 

bottles were compressed gas and that the standard cited deals with 

compressed and liquid gas (Tr. 28). 

Mr. Bodah identified exhibit C-3 as a photograph of the self cleaning 

tail pulley which he cited, and indicated that it was located on the 

rubberized conveyor belt to the storage hopper. He believed that the 

unguarded tail pulley was an area which would be accessible to anyone 

wandering around the plant, and that it would have been easily contacted 

by a person who could catch clothing or an. arm in the unguarded.area. He 

and Mr. Petersen were in the area during their inspection rounds. He 

drew a circle on the exhibit depicting the unguarded area, and he indicated 

that it was four and one-half-to-five feet off the ground (Tr. 31). He 

discussed the condition with Mr. Petersen, and Mr. Petersen cleaned the 

area out under the tail pulley and this made it inaccessible. That is, 

by cleaning out the area, the ground level was lowered to a distance 

of seven feet from the unguarded pulley, and it placed it at a point 

where it could not accidently be contacted (Tr. 31). 

With regard to the safety glasses citation, Mr. Bodah confirmed 

that he issued that citation after he observed Mr. Petersen break a 

rock with a sledge hammer without using safety glasses. The rock would 

not go through the crusher, and that is why Mr. Petersen broke it up 

with the hammer. However, by doing so, he exposed himself to a hazard 

of being struck in the eye or head from flying chips of rock or steel 

from the hammer. He discussed that condition with Mr. Petersen, and 

glasses were provided for ''whoever was breaking rocks'' (Tr. 33-34). 

Mr. Bodah identified exhibit C-4 as a photograph of the V-belt 

drive for the rolls crusher, placed an arrow where he believed a pinch 

point existed, and he indicated that the lack of a guard over the pinch 

2244 
point presented a hazard in that someone could get caught between the 

pulley and the belt. He and Mr. Petersen were in the area, and the 

unguarded area was approximately five feet above ground level. He 

discussed the matter with Mr. Petersen, and Mr. Petersen cleaned the 

area below the V-belt drive by removing rock which had spilled, and this 

made the drive inaccessible. After it was cleaned up, the area from the 

ground to the drive was seven or eight feet (Tr. 35-36). 

Mr. Bodah identified exhibit C-5 as a photograph of the V-belt 

drive for the small jaw crusher, and he cited it because it was only 

partially guarded. The belt was located on an elevated work platform 

near where the plant operator works and he believed it was accessible 

to anybody in the area. The drive was about a foot and one-half 

above the platform level, and he believed that one could suffer severed 

or broken fingers if he came in contact with the partially guarded belt 

drive. He drew an arrow on the exhibit showing the partially guarded 

area which concerned him, and he indicated that access to the V-be t 

drive was from both sides. He discussed this citation with Mr. Petersen, 

and Mr. Petersen erected a barrier to prevent access to the unguarded 

belt . 38-39). 

Respondent's counsel declined to cross-examine Inspector Bodah, 

However, in response to questions from the bench, he confirmed that he 

did not make any actual determination that the oxygen bottles which he 

cited were full or empty. Although he accepted Mr. Petersen's word that 

they were empty, Mr. Bodah. stated "they're never empty. There's 

always pressure in one.'' (Tr. 40). The normal procedure for storing 

such bottles is to chain or fastened them in an upright position so 

can not tip. The bottles are normally used for cutting and welding, 

and when they are used for this purpose they are at the work site, but 

Mr. Bodah could not state whether the area where he observed the bottles 

was a regular storage (Tr. 42). 

Regarding the unguarded self-cleaning tail pulley, exhibit C-3, 

Mr. Bodah confirmed that it was partly guarded by the sides of the conveyor 

frame. He also confirmed that the rock spillage had gradually built up 

under the machine to the point where the ground was elevated and 

the pulley area five feet from the top of the rock spi pile. Had 

the spillage not been there, the pulley would not have been accessible 

to anyone walking on the spillage, and he would not have issued a citation. 

He believed that anyone walking along the spillage to clean up or to grease 

the equipment would likely pass through the area (Tr. 45). 

Mr. Bodah stated that the crusher was not running when Xr. Petersen 

~roke the large rock without wearing safety glasses. The rock would not 

gc through the crusher, and the operator shut the machine down so that 

Mr Petersen -:ould break the rock up. Mr. Bodah could not re'..:alJ whether 

Hr, J'etersen had glasses on his person, hut he did confirm that 

hP did have tnem on when he broke up the rock (Tr. 47). 

2245 
With respect to the hard hat citation, Mr. Bodah indicated that he 

issued the citation because Mr. Petersen would not wear a hat during 

the walk-around with him on the inspection. Hard hats were available 

at the site, but Mr. Petersen told him it was his policy that employees 

must wear them, but that he does not have to. Mr. Bodah stated that 

Mr. Petersen is at the plant site most of the time, and in response to 

a question as to what he would do if I were to go to the site for a "view" 

and was not furnished a hard hat while on the premises, he replied "if the 

plant were running and you did not have a hard hat on, I would cite 

Mr. Petersen for allowing you on the property without a hard hat" (Tr. 50). 

With regard to the truck driver, Mr. Bodah indicated that he is not 

required to wear a hat while in the truck because he has overhead 

protection, but that once he leaves the truck he has to wear his hard 

hat (Tr. 51). However, he stated that the driver has to operate the gate 

to let the material out of the hopper and into the truck (Tr. 51). 

Mr. Bodah confirmed that while the standard states that hard hats 

should be worn to protect one from falling objects, he was equally concerned 

over the possibility that Mr. Petersen could strike his head while going 

under low areas, and his concern about being struck from objects was 

based on "danger from a rock flying from the pressure_part of the operation 

through the air, and occasionally rather rocks do become airborne" 

(Tr. 52). 

With respect to the partially guarded rolls crusher, Mr. Bodah 

confirmed that the crusher is mounted on a trailer, and when not actually 

operating the equipment, the driver would probably be assigned clean-up 

chores and shovelling would be done while the equipment was sti:j.l in_. 

operation. The most likely accident would occur if someone were to stumble 

near the pinch point and reach out and grab for the V-belt (Tr. 54). 

As for the small jaw crusher, exhibit C-5, while the operator would 

normally be stationed away from the machine while it was operating, he 

could walk right up to it from the adjacent walkway to grease or clean-up, 

and he believed the platform was provided to facilitate ready access 

to the equipment (Tr. 56). Had the spillage not been present, he would 

have considered the self-cleaning pulley and V-belt drive to be "guarded 

by location" since they would have been seven feet off the ground and 

out of the reach of anyone, and the citations would not have been issued 

(Tr. 56). 

John A. Petersen, the mine operator, identified exhibit R-1 as a 

photograph of the switch panel where one stands to operate the entire 

plant. He identified an overhead tin roof, and he indicated that when 

the plant is running there is no need for anyone to be around any of the 

~onveyors or belts. The operator's control panel is elevated some seven 

feet off the ground, and the unguarded jaw crusher V-be1t shown in exhibit 

C-5 is on the ground level below the operator and some 8 to 10 feet 

behind him. The only time anyone walks by the belt is to get to the 

elevated panel to turn the crusher on, and to come h~ck down after it is 

turned off, and the area is some 60 feet ·from where the truck is located 

(Tr. 91-92). The self-cleaning tail pulley shown in exhibit C-3 is about 

15 feet from the truck (Tr. 92). 

2218 
Mr. Petersen stated that the circle-drawn tor Bodah on 

the photographic exhibit C-3, reflecting the ion of the self-cleaning 

tail which he believed was unguarded is inacurrate. Mr. Petersen 

indicatedthat the area circled by the inspector is in fact the back end 

of the frame from which the conveyor is hung. Mr. Petersen indicated 

that the actual tail pulley in question is 12 inches in diameter and that 

it is located higher up on the photograph. The conveyor and pulley run 

up a very hopper, and the tr~ck and driver are positioned to the 

side of the hopper as shown in photographic exhibit R-2 (Tr. 92-94). 

Mr. Petersen stated that the truck driver would be under the hopper 

conveyor belt, and while the largest stone on the belt would be a half-inch 

in diameter, the conveyor itself is "a tro , and that would be the 

only means of keeping rocks from off the conveyor. He did not 

believe that the driver could be struck by any rock because any spillage 

would occur at the back of the belt where the truck driver has no business 

. 95-96). With regard to his hard hat, Mr. Petersen stated 

that when he is operating the "cat" he is protected by an overhead canopy, 

and the only time he would leave the "cat" would be to break the rocks if 

the crusher were broken down or up (Tr. 96). 

With to the rolls crusher shown in exhibit C-4, Mr. Petersen 

stated that water and mud is under the of equipment and someone 

would have a difficult time reaching the area which was cited 

(Tr. 96). Mr. Petersen confirmed that he has had no on-the-job injuries 

since he has operated the business (Tr. 99). He also indicated that when 

he was breaking the rocks with a hammer, he was using a flat, double-ended 

"rock hammer" and not a sledge hammer, and in the 10 years he h?s us~ed 

such a hammer to break rocks he has never suffered an eye injury from 

rock (Tr. 99). He considers himself to be skilled in the use 

of such a hammer, and he believed that the use of safety glasses would 

not have made his operation any safer if you beat on the rocks 

right, you don't get chunks in your face" 100). When asked "how 

do you know that?", he replied ''from a sledge hammer and having them 

hit you in the legs and everywhere" (Tr. 100). He also indicated that 

company policy dictates that he is the only one who is to break rocks 

with the hammer, and none of his employees have ever had an on-the-job 

injury (Tr. 101). 

Mr. Petersen testified further that he advised Inspector Bodah that 

the oxygen bottles which he cited were empty, but that Mr. Bodah indicated 

that it didn't make any difference whether they were empty or full 

(Tr. 102, 106), and that they had to be secured. Mr. Petersen conceded 

that the bottles would be hazardous they were full, but: he knew. -of 

no danger if they are empty. He also indicated that someone would have 

to "kick it pretty hard to tip it over" (Tr. 106). 

Petitioner argued that it has established jurisdiction in this case, 

and that it is clear from the testimony of Mr. Petersen that his crushed 
rock product is used to build city, county, and State roads, all of 

which are instrumentalities of commerce. In addition, petitioner states 

that most of Mr. Petersen's equipment was produced outside of the State 

of , and that it is clear that at the time of the tion, as 

well as in 1980, ::Ir. Petersen was operating a crushed stone operation 

employing himself, family members, and other emp As for the fact 

of violations, petitioner asserted that the test and evidence 

adduced at the establishes that the conditions and practices 

observed by the inspector at the time the citations were issued establishes 

each o the cited violations (T~. 10~~111). 

Respondent's counsel opted to rest on her arguments made in her 

Trial Hemorandurn filed at the (Tr. 111). The memorandum is a 

part of the record in this case, and the arguments presented therein 

have been considered by me in the course of this decision. 

In her trial memorandum, counsel asserts that "(u]nder Title 43, 

Section 4.1155, the burden of proof in civil penalty pro is upon 

OSM to fon.;ard to establish a facie case and the ultimate burden 

of persuasion as to the fact of violation and as to the amount of anv 

claimed pena ty. believes that the burden is one of 

a reasonable doubt since this is a quasi-criminal proceedings and what 

is sought is a fine" . 6, Memorandum). 

Respondent had previously argued that these proceedings were criminal 

in nature, and counsel had also requested attorney's fees. These a~guments 

were ected in my rulings made on August 20, 1981, and served 

on the parties. My reasons in this regard were·stated in those rulings, 

which are a part of the record in this case, and they are reaffirmed. 

Respondent's request for attorney fees is denied, and her arguments concerning 

the "burden of proof" are likewise rejected. 

As pointed out to counsel during the hearing, the references to 

"OSM" and the regulations issued thereunder are not applicable in these 

proceedings. The Office of Surface Mining (OSM) is an agency of the 

U.S. Department of the Interior, and not the U.S. Department of Labor 

which has enforcement jurisdiction under the Act in issue in these pro 

M?HA's mandatory safety and health standards, and the applicable civil 

penalty procedures are found in Title 30, Code of Federal tions. 

Further, the applicable Commission Rules of Procedure are found in Title 29, 

Code of Federal Regulations, Part 2700, ~ , 44 Fed. 38226, 

June 29, 1979. A Judge's decision with respect to the asserted violations 

in cases of this type is determined by a preponderance of all of the reliable, 

credible, and probative testimony and ~vidence of record, and the 

Commission 1 s stanJards for discretionary review of a Judge's ded.::>ion are 

detai.led at 29 CFR 2700.70. 

Respondent's defenses to each of the citations are discussed 

and disposed of in my findings and conclusions concerning each of the 

cited violations. 

2248 
Jurisdiction 

Findings and Conclusions 

t 1 s initial answer to MSHA's proposals for assessment 

ties denied that the respondent's crushed stone operation 

was subject to the Act or to MSHA's enforcement jurisdiction. 

the course of the hearing, respondent's position had not on this 

iss-1:1e and counsel asserted that HSHA-mustestablish that the operation 

is subject to the Act (Tr. 59). 

MSHA's counsel confirmed that Mr. Petersen's operation had an HSILI\. 11Mine ID" number, and she indicated that the production tons or man 

hours per year are shown as 6,000 (Tr. 62). Counsel confirmed that 

Mr. Petersen must have filed an MHSA "legal identity as 

the ions since he has never been cited for failure to file such 

a form 

tor Bodah testified that the crushed rock is trucked from 

the storage area at the mine to customers who may want to e it. 

He believed that the crushed rock is used for road base, concrete rock, 

fill, or for dra rock. He confirmed that he does not t the 

site when its not in operation, could not recall how many previous times 

he ted it, and indicated that in addition to Mr. Petersen and his 

son, three other were working at the site when he ted 

it (Tr. 57). 

tor Bodah disagreed with the respondent's assertion that 

his operation is not subject to the Act. He maintained that "we've 

been t them for quite some time, and they're a 

product that enters into interstate commerce" (Tr. 59). 

this conclusion his observing the trucks hauling the crushed rock off 

the mine property, and this indicated to him "he's that rock to 

somebody 11 • 60). Mr. Bodah also indicated that the mine site is located 

in Columbia County, Tide Creek, Oregon, but he did not know whether the 

rock is ac shipped out of the state (Tr. 60). He believed that all 

crushing operations are considered under MSHA's jurisdiction. 

John A. Petersen was called as a witness by the petitioner, and he 

confirmed that he is the president and owner of the controlling interest 

in Tide Creek Rock Products, Incorporated. The other stockholders are 

his wife and counsel Agnes Petersen, and his mother-in-law. He described 

the size of his rock product as ranging from a half-inch to three and a 

half-inches, and the raw materials are obtained from a hill located adjacent 

co the " The hill is leased, but he owns all of the plant equipment and machinery. The actual worksite, the hill, the storage 

stockpile, and the plant encompasses an area of an acre and one half (Tr. 65-68). 

Hr. Petersen confirmed that at the time of the inspection in 1980, 

he and two of his sons were working at the He would occasionally 

2248 
hire other people to help out, but he was operating the "Cat" and his 

son was driving a truck. Mr. Petersen could not estimate his annual 

dollar sales volume in 1980, and he indicated that in 1980 he operated 

"a third of the year" (Tr. 70). Since that time, the plant has been 

in operation less time, and he confirmed that the only product he 

produces is rocks of varying sizes. During 1980, he sold the rock primarily 

to St. Helens Paving, and the product was used to pave streets and highways, 

including county, city, and state highways, and driveways (Tr. 71). 

Other customers would "come and go, different ones at different times 11 , 

but he could not recall the names of any of them. His primary employment 

at that time was with his company (Tr. 72). 

With regard to his equipment, Mr. Petersen stated that the truck 

used to haul his product was manufactured by "Peterbuilt Truck", and 

while he did not know where it was manufactured, he believed it was the 

State of Washington. The 11Cat" or Caterpillar was produced in Illinois, 

and the jaw crusher was manufactured in Cedar Rapids, Iowa (Tr. 87-89). 

On the basis of the foregoing testimony and evidence adduced here, 

it seems clear to me that respondent's strip mining operation is subject 

to the Act, as well as to MSHA's enforcement jurisdiction. Respondent's 

sales of rock products, as well as the use of equipment manufactured out 

of State, certainly affects commerce within the meaning of the jurisdictional 

language of the Act. Accordingly, its arguments to the contrary are 

rejected. 

Failure to secure compressed and liquid gas cylinders - Citation 349568 

30 CFR 56.16-5, provides as follows: 

Compressed and liquid gas cylinders shall be 

secured in a safe manner. 

Respondent takes the position that the cited compressed gas cylinders 

were empty and that the petitioner offered no credible proof that they 

were full or unsafe at the location where they were found. 

Section 56.16-5 requires that compressed and liquid gas cylinders be 

secured in a safe manner. Petitioner has established that the cylinders 

in question were not secured, and that one was standing upright and the 

other was lying on the ground. Respondent does not dispute this fact, 

and takes the additional position that there is no "safety advantage to 

hanging up an empty oxygen bottle". The standard cited makes no distinction 

between full or empty cylinders, and respondent's defense on this ground 

:i.s rejected. Respondent's arguments go more to the seriousness or grcwi.ty 

or the violation, rather than to an absolute defense to the cited 

standard. Acl'.ordingly, this citation TS AFFIRHED. 

The inspector failed to determine whether the cited cylinders were 

full or empty. I accept Mr. Petersen's testimony that they were in 

2250 
fact empty. Mr. Petersen conceded that the bottles were simply placed 

outside the shop area some 15 feet away while awaiting to be taken to 

town to be refilled, and while he also conceded that employees walked 

by the area, I cannot conclude or find that the bottles posed any real 

hazard. The bottles which were filled and in use in the shop were 

apparently secured since Mr. Petersen indicated that they were in fact 

chained up when in use. I conclude and find that this citation was 

nonserious. 

Failure to Wear suitable hard hats - Citation 349567 

30 CFR 56.15-2, provides as follows: 

All persons shall wear suitable hard hats when 

in or around a mine or plant where falling objects 

may create a hazard. 

As I observed during the course of the hearing, the language of 

the "hard hat" standard does not state "All persons whall wear suitable 

hard hats when in or around a mine or plant". A condition precedent 

to the requirement that a hard hat be worn is a finding that falling 

objects may creata a hazard. Respondent argues that the language of the 

standard is not intended to guard against one bumping his head against 

a low beam or piece of equipment. Insofar as any "falling objects" 

are concerned, counsel argues that when the inspector arrived at the 

scene, Mr. Petersen has just finished doing some work in the caterpillar 

pushing rocks from the hill into the chute below it, and while engaged 

in this activity he was fully protected by the machine overhead canopy. 

This being the case, counsel argued that there was no possibility or likelihood 

of his b2ing struck by a falling object. Counsel advanced this·same' 

argument in defense of the failure by the truck driver to have his hard 

hat on, and also made the additional argument that no rocks ever fall 

out of the overhead conveyor where the truck was located. 

Inspector Bodah indicated that when he came on the property Mr. Petersen 

was not wearing a hard hat, that he refused to wear one during the entire 

inspection, and was not wearing one when he broke up the rock which had 

jammed in the crusher. As for the truck driver, Hr. Bodah indicated 

that the truck driver was out of his truck, was around the hopper loading 

area, and that his job was to open the hopper chute to allow the rock 

materials to load onto the truck. He also indicated that rocks have on 

occasion been propelled from the crusher, or they could fall out of the 

overhead conveyor belt leading up into the hopper. 

While it may be true that one is not expected or required to wear 

a hard hat while inside a vehicle which has an overhead cab or canopy, 

the truck driver was not in his vehicle at the time the inspector observed 

him ~t or near the overhead conveyor belt. Since the driver's duties 

include activating the chute which opens the hopper and loads the truck, 

I believe there is a strong possibility that the driver could be struck 

by overhead rocks falling out of the chute, off the truck, or being 

2251. 
propelled out of the hopper itself. Respondent's assertions that events 

like this never occur are rejected, and 1 conclude that the failure by 

the truck driv~r to have his hard hat on constituted a violation of the 

cited standard and IT IS AFFIRMED. 

With regard to Mr. Petersen's failure to wear a hard hat, even though 

he may have been protected while in the cab of the cat, his routine 

practice and refusal to wear a hard hat at all times while working around 

the plant also constitutes a violation of the hard hat requirement. 

Respondent has not established that there are never any falling objects 

such as rocks or other materials or equipment at the plant, and the 

petitioner's evidence establishes that there is a potential for the rocks 

to fall from overhead conveyors. While one may agree that the language 

of the standard is inartfully drawn, on the facts here presented Mr. Petersen 1 s 

refusal to ever wear a hard hat while the plant is in operation constituted 

a violation of section 56.15-2. Although the inspector could have cited 

two separate citations for Mr. Petersen and the truck driver, he opted to 

incorporate both incidents into one citation, and I see nothing improper 

with this procedure. 

I conclude that the failure by Mr. Petersen and the truck driver 

in question to wear their hard hats while in and about the plant area 

while the equipment was in operation was serious. The truck driver is 

close to the overhead conveyor when he activates the lever or mechanism 

forcing the coal into the hopper, and it is possible for him to be struck 

by rocks falling out of the conveyor. As for Mr. Petersen, whila it 

may be true that he was protected while under the cab of the equipment 

he was operating, there is no assurance that he is always protected while 

walking and working around the plant. 

30 CFR 56.15-4, provides as follows: 

All persons shall wear safety glasses, goggles or 

face shields or other suitable protective devices 

when in or around an area of a mine or plant where 

a hazard exists which could cause injury to unprotected 

eyes. 

Respondent's defense to the safety glasses citation rests on its 

assertion that Mr. Petersen has worked for 30 years in dangerous occupations, 

10 years of which have been spent breaking up rocks with an appropriate 

rock hammer that is specifically designed to prevent splintering, and 

in all of this time he has never suffered any eye or other injuries. 

Further, counsel pointed to the fact that Mr. Petersen never allows 

other employees to break rocks, and that the likelihood that safety 

glasses would have improved safety is very remote. Counsel also asserted 

that the law clearly requires more for the meaning of the word "could" 

as used in the standard. 
There no <l1Jes.tion but that Mr .. Pet:ersen-w-as·· not wearing any eye 

protection at the time Inspector Bodah observed him breaking up the rock 

which had jammed in the crusher. In my view, the fact that Mr. Petersen 

is experienced ·at breaking rocks, used the proper tooi for that purpose, 

and instructed his employees that he was the only one to break rocks, 

does not establish an absolute defense to the citation, and counsel's 

interpretation as to the application of the use of the word "could" is 

rejected. While Mr. Petersen's safety record is commendable, I for one 

would not like to see his luck run out. In my view, there is 

a chance that the most experienced miner in the world will be 

his failure to completely protect himself. Here, Mr. Petersen 

that when he used a sledge hammer in the past, flying rocks often struck 

him in the I realize he said that to justify his use of a flat 

but one mis-strike of that hammer, just as one slip of a 

scapel in the hands of a skilled surgeon, could prove disastrous. This 

citation IS AFFIRMED. 

Gravity 

Although the use of a flat-headed rock hammer in the hands of 

a skilled and experienced miner may mitigate the seriousness of any 

hazard, on the facts of this case, I conclude that the citation was serious. 

At the time of the citation, Mr. Petersen had in his emp two of his 

young sons who helped out at the plant, and Mr. Petersen was not always 

present when work had to be performed, and I am sure he is not present 

every time the crusher jammed. In these circumstances, even though he 

ordered no one else to break up rock, I believe that it was reasonable 

to assume that someone could follow his example and attempt to br~ak up 

a jammed rock in his absence, thereby exposing themselves to a possible 

eye inJury. Mr. Petersen's practice and routine breaking up of rocks 

without wearing safety glasses is just as serious as the actual act which 

the inspector observed at the time the citation issued. 

Failure to completely guard the storage hopper se~f-cleaning conveyor belt 

tail pulley - Citation 349569; the rolls crusher V-belt drive - Citation 

349571; and the jaw crusher V-belt drive - Citation 349572. 

30 CFR 56.14-3, provides as follows: 

Guards at conveyor-drive, conveyor-head, and conveyortail pulleys shall extend a distance sufficient to 

prevent a person from accidentally reaching behind the 

guard and becoming caught bewteen the belt and the 

pulley. 

Respordent's defense to the self-cleaning conveyor belt citation 

is that sL1ce it is 5 or 6 feet from the ground and no one .is around it 

when it is running, there is no way anyone can accidently reach behind 

the guard and become caught between the belt and the pulley. Respondent 

points out that when the conveyor is running the closest person to it 

2253 
is 10 to 15 feet away, that the placement of the belt is too high 

for any orie to ltaccidentally reach behind it", and any injury at the 

cited location would have to be done deliberately and intentionally. 

With regard to the crusher V-belt drive citation, respondent 

maintains that the equipment is so high above the ground level and 

surrounded by a "thigh deep moat and about 2 or 3 feet of mud and water", 

that a fool would have to wade out and jump or reach very high even 

get to the location in questioh~ R~ipondent conciud~s t6at there is 

no way anyone could accidentally get ured at the cited location. 

Respondent's defense to the jaw crusher V-belt citation is that the 

piece of equipment is covered up, that the chain which the inspector 

recommended be put up was meaningless, and that when the crusher is 

running no employees are there. 

Mr. Bodah believed that the guarding standard he cited 

that partially guarded converyor pulleys be inaccessible, and since 

the accumulated rock made them accessible, the standard was violated 

(Tr. 44). In my view, the standard requires that be extended a 

sufficient distance to prevent a person from accidentally reaching behind 

the guard and getting caught between the belt and the pulley. It seems 

clear to me that any consideration of the standard must take into account 

the question of whether the is sufficient. 

On the facts of this case, the determining factor in the mind of 

the inspector as to whether the standard was violated is not whether 

any existing guard was sufficient, but rather, whether or not the 

terrain beneath the pulley was elevated enough to cause one to accidentally 

reach into the pulley and injure himself. In short, the elevation 

of the spillage in direct relationship to the overhead height of the 

pulley is the determining factor, and this may change from day to day. 

What is a safe distance on one day may not be the next. What is 

"guarding by location" in one inspector's mind, may not be sufficient 

for another inspector. In short, the regulatory language leads to some 

highly subjective judgment calls by an inspector. 

It seems to me that if MSHA's intent in promulgating the standard 

is to prevent and preclude accidents in connection with unguarded or 

partially guarded pulley pinch-points, then it should seriously consider 

amending its standards to require all such areas to be guarded without 

qualification or any conditions precedent. The use of open-ended and 

broad language such as that found in section 56.14-1 through 56.14-3, 

i.e., "may be contactedlt, "sufficient distance", "accidentally reaching", 

results in some rather strained interpretations, and I sympathize with 

inspector's who have to grapple with the guarding standards, and with 

the solicitor's who have to defend the numerous guarding citations issued 

under these sections. 

225d 
Inspector Bodah conceded that the self-cleaning belt tail 

pulley and rolls crusher V-belt drive pulley would normally be guarded 

by location sin.ce they were approximately seven feet above ground level 

and out .of the reach of anyone. The basis for the citations was his 

concern that rock spillage in and around the area beneath the pulley locations 

raised the level of the ground to a point which would bring anyone walking 

on. the .. sP:illage directly under the pulleys· into close proximity or reach 

of the pinch points which were partially guarded. Mr. Bodah indicated 

that someone would normally walk across the "flattened out" spillage 

since the area "was the means of access to get inside the plant area" 

(Tr. 45). The gradual spillage elevated the area to a point at approximately 

four and a half to five feet below the overhead pulleys, and Mr. Bodah 

was concerned that someone walking through the area to grease the equipment 

or to clean up could stumble, and if he did, he would somehow instinct 

reach out for something, and he knows of instances where someone reached out 

for a V-belt (Tr. 54). 

In this case, the respondent has established to my satisfaction 

that when the equipment is running each employee is assigned to a 

location to keep the 11 plant" moving. The "plant" includes a hopper, a 

crusher, a truck, a stockpile, and a hill from where the raw rocks are 

taken. I simply can find no support for the proposition that when everything is moving, someone will leave their assigned work station, walk 

over a two or three foot mound of rocks under an overhead pulley and 

attempt to grease that machine. Neither can I believe that in this same 

scenario, someone will take a shovel and start shovelling rocks while he 

is supposed to.be. <3.1:: hi.s normal duty station. In. the instant case, ·since 

the rock spillage obviouslj accumulated over a long period of time, no 

one had been in the area cleaning up. Further, one of the elevated 

pulleys is self-cleaning, and there is no indication that anyone had to 

go into that equipment to clean it. In addition, Mr. Bodah candidly 

conceded that if there are any equipment problems the plant is shut down 

(Tr. 4 7). 

I accept Mr. Petersen's testimony that the actual location of the 

storage hopper self-cleaning tail pulley was at a point higher on 

photographic exhibit C-3, than that stated by Mr. Bodah. The area circled 

by Mr. Bodah is the frame from which the conveyor hangs, and the actual 

pulley area in question is higher up and behind the tail pulley shaft 

as shown in the photograph. Having viewed the photograph and after careful 

consideration of all of the testimony in this case, I cannot conclude 

that the alleged insufficiently guarded tail pulley in question was located 

in such a position where anyone could accidentally reach in and become 

entangled in the pulley. Of course, if someone deliberately jumped up 

and reached into the area, or placed a ladder against the conveyor frame 

and •:limbed up and stuck their hand in the pulley, they would undoubtedly 

be irjured. If that is the type of situation MSHA is attempting to guard 

against, then they should say so in clear and precise regulatory language. 

Citation No. 349569 IS VACATED. 

2255 
Although Mr. Bodah indicated that the jaw crusher operator could walk 

up to the V-belt for greasing and clean-up, the fact is he really did 

not know that this was the case (Tr. 55). Mr. Bodah's testimony that 

employees greas·e and clean-up around unguarded tail pulleys and pinchpoints must be taken in context. He suspected and speculated that an 

would grease and clean-up around the V-belt because he observed 

form around the equipment. Since he believed the platform was 

for a specific purpose, he concluded that it was obviously used 

to provide access to the equipment, and this is a logical assumption 

on his part. However, absent any credible evidence that the equipment 

is in fact greased and cleaned while it is , and absent any 

evidence that any employee is required to be in close proximity to the 

moving parts of the crusher as a routine normal of his job, or that 

miners pass by the area, there is no support for me to make 

any of these inferenceso As a matter of fact, abatement of this citation 

was not achieved by placing a guard over the asserted pinch-point. 

Mr. Petersen installed a chain or fence across the area away from the 

pinch 

Mr. Petersen's testimony is that the only time anyone goes to the 

crusher form area is when the equipment breaks down or plugs up, or 

while up and down while shutting the down or turning 

it on. The equipment is shut down when it is up or broken down. 

In addition, the crusher operator is at some distance from the actual 

pinch point when he is running the crusher, and he is the only person 

there. Further, Mr. Petersen's description of the area where the 

asserted pinch-point was located, including the photographic exhibits, 

leads me to conclude that one would have to make a deliberate and conscious 

effort to first reach the area, and then reach in and contact 

the guarded pinch point. Given these circumstances, I conclude 

and find that the existing partial guarding was enough to prevent 

an accident, and that the petitioner has not established that the location 

of the jaw crusher V-belt drive was such that a person could accidentally 

reach in and get caught in the drive pulley. , Citation No. 

349572 IS VACATED. 

With regard to the rolls crusher V-belt, Mr. Bodah first stated that 

the V-belt drive was unguarded, but that the pinch point which 

concerned him most was where he drew in the arrow in the photographic 

exhibit C-4 (Tr. 34). However, his citation reflects that the drive 

"was not completely guarded", and his later testimony is that the pulley 

area was partially guarded by frame on the backside of the machine (Tr. 52). 

At first Mr. Bodah indicated that the truck driver may be assigned clean-up 

duties when he is not driving his truck, and that ttusually they put them 

here or doing some little repair work or whatever" (Tr. 43). 

However, he later indicated that ttl don't know what Mr. Petersen's procedure 

is which the truck driver" (Tr. 52). It seems to me that the best evidence 

as to what the driver does when he is not , is to with him. 

Mr. Bodah apparently did not do so. Therefore, absent any credible evidence 

that the driver is near the pulley in question clean-up duties 

while the rolls crusher is in operation, I cannot conclude that the 

unguarded area which concerned the inspector, as shown on photographic 

exhibit C-4, was an area which posed a hazard in this case. 

225t) 
Respondent's arguments that the rolls crusher was surrounded by 

"a moat of water" is an exaggeration. The testimony by Mr. Petersen 

is that one wou;Ld have to "wade in water and mud up to your knee or 

walk on a little berm of rock two or three feet high" to become tangled 

up in the area which concerned Mr. Bodah. Mr. Petersen concluded that 

one "would be a damn fool" to go into that area (Tr. 84). 

On the basis of all of the facts and evidence adduced in this case, 

I cannot conclude that the pinch point at the rear of the pulley shown 

on exhibit C-4, constituted an area where someone could accidentally 

reach in and become entangled. The facts show that no one is stationed 

in that area, has no reason to be there, and the frame, wheels, and 

machine confirugation, provide adequate protection. Citation No. 349571 

IS VACATED. 

Although the respondent is obviously not too enchanted over the 

prospect of paying civil penalties for conditions and which he 

; s 

abated, no evidence was forthcoming that the assessment and payment of 

reasonable civil penalties for the citations which have been affirmed will 

adversely affect his ability to continue in business. , I 

conclude and find that they will not. 

The record in this case establishes that the respondent's rock 

crushing operation is a very small family-owned operation, operating 

more or less with three or four workers, and I have considered th~s in 

the civil penalty assessments made by me for the citations. 

Bistory of prior violation~ 

MSHA's computer print-out, exhibit C-6, reflects that for the period 

May 8, 1978, to May 7, 1980, the mine had one assessed violation (Tr. 58). 

Good faith comliance 

Petitioner conceced that the respondent corrected all of the cited 

conditions and acted in good faith in achieving compliance within the 

time periods fixed by the inspector (Tr. 105), and I so find. 

I find that all of the citations which have been affirmed in this 

case resulted from the respondent's failure to exercise reasonable care 

to prevent the conditions or practices which resulted in the issuance 

of the citations. As the mine owner and operator, Mr. Petersen had an 

obligation to be aware of the requirements of the standards cited, and 

to prevent the conditions and practices cited. His failure to so constitutes 

ordinary negligence as to each citation. 

("~·;:-::· 

h,._ I ,r '\..) 
Penalty Assessments 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that the following civil penalty assessments are appropriate 

for the citations which have been affirmed: 

30 CFR Section Assessment 

349567 5/8/80 56.15-2 $ so 

349568 5/8/80 56.16-5 20 

349570 5/8/80 56.15-4 75 

$ 145 

ORDER 

Respondent IS ORDERED to pay civil penalties in the amounts shown 

above within thirty (30) days of the date of this decision and order, 

and upon receipt of payment by the petitioner, this case is dismissed. 

Administrative Law Judge 

Distribution: 

Faye von Wrangel, Esq., U.S. Department of Labor, Office of the Solicitor, 

8003 F.O.B., Seattle, WA 98174 (Certified Mail) 

Agnes Marie Petersen, Esq., Gray Bldg., 222 S. First St., St. Helens, 

OR 79051 (Certified Mail) 

2258 
. FEDERAL Ml NE SAFE-TY-AN D-HEAlTM-R-EV+EW COMMISS-lON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLF.AX AVENUE, SUITE 400 

DENVER. COLORADO 80204 ~~~~~~~~~~~~~~~~~~) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

v. ) 

) 

AMAX CHEMICAL CORPORATION, ) 

Respondent, ) 

UNITED STEELWORKERS OF AMERICA, ) 

AUTHORIZED EMPLOYEE REPRESENTATIVE, ) 

Intervenor. ) 

CIVIL PENALTY PROCEEDINGS 

DOCKET NO. CENT 81-129-M 

DOCKET NO. CENT 81-241-M 

MINE: Amax Mine & Mill 

FINAL ORDER 

CENT 81-129-M 

On November 1, 1979 the Secretary issued Citation 161852 against 

respondent AMAX Chemical Corporation, The citation, alleging a violation of 

30 C.F.R. 57.5-5, provides as follows: 

Condition or practice the Marretta Miner operator in the 110 

mining sectio~ was exposed to a Time Weighted Average (TWA) 

of 26.11 Mg/M of total particulate nuisance dust in a 

dust survey taken on the 11-01-79 for a

3

8 hour survey. The 

Threshold Limit Value (TLV) was 10 Mg/M . Feasible enggineering controls were not being utilized to reduce this 

dust concentration, to eliminate the need to wear respirators. 

This citation was written on the 01-21-80 after dust results 

were received from the analysis center in Denver, Colorado. 

Several extensions of the citation were issued and the citation was 

terminated on September 30, 1980. 

On December 12, 1980 petitioner filed his proposed penalty assessment 

and on February 4, 1981 Amax filed its notice of contest. Subsequently the 

Secretary filed his complaint before the Commission. 

CENT 81-241-M 

On February 27, 1979 the Secretary issued Citation 161808 against 

respondent Amax Chemical Corporation. The citation, alleging a violation of 

30 C.F.R. 57.5-5 provides, as follows: 

Condition or practice the slusher operator working in the 

warehouse ar3a was exposed to a time weighted average (TWA) 

of 39.9 Mg/M of total particulate bearing nuisance 3dust, 

where as the Threshold Limit Value (TLV) is 10 Mg/M • 

Feasible engineering or/and administrative controls were not 

being utilized to reduce this amount to acceptable standards 

and eliminate the need to wear respirators. This citation 

was written on the 04-11-79 at 0935 hours. The dust analysis 

results were received on this date. 

2259 
Several extensions of the citati•rn were issued and on April 14, 1981 

the citation was terminated. 

On June 18, 1981 the Secretary filed his proposed penalty assessment 

and on June 30, 1981 Amax filed its notice of contest. The Secretary 

subsequently filed his complaint be fore the Commission. 

Pursuant to Commission rule 29 C.F.R. 2700.12 the above cases were 

consolidated. 

The standard allegedly violated, 30 C.F.R, 57.5-5 provides as follows: 

§ 57.5 Air quality, ventilation, radiation, and physical agents, 

57.5-5 Mandatory, Control of employee exposure to harmful 

airborne contaminants shall be, insofar as feasible, by 

prevention of contamination, removal by exhaust ventilation, 

or by dilution with uncontaminated air. However, where accepted engineering control measures have not been developed 

or when necessary by the nature of work involved (for example, 

while establishing controls or occasional entry into hazardous 

atmospheres to perform maintenance or investigation), employees 

may work for reasonable periods of time in concentration of airborne contaminants exceeding permissible levels if they are protected by appropriate respiratory protective equipment. Whenever respiratory protective equipment is used a program for 

selection, maintenance, training, fitting, supervision, cleaning, and use shall meet the following minimum requirements: 

(a) Mine Safety and Health Administration approved respirators 

which are applicable and suitable for the purpose intended 

shall be furnished, and employees shall use the protective 

equipment in accordance with training and instruction. 

(b) A respirator program consistent with the requirement 

of ANSI Z88.2-1969, published by the American National 

Standards Institute and entitled "American National Standards 

Practices for Respiratory Protection ANSI Z88.2-1969, approved August 11, 1969, which is hereby incorporated by reference and made a part hereof. This publication may be 

obtained from the American National Standards Institute, 

Inc., 1430 8roadway, New York, New York 10018, or may be examined in any Metal and Nonmetal Mine Health and Safety District 

or Subdistrict Office of the Mine Safety and Health Administration. 

(c) When respiratory protection is used in atmospheres immediately harmful to life, the presence of at least one other 

person with backup equipment and rescue capability shall be 

required in the event of failure of the respiratory equipment. 

2260 
On July 29, 1982 the United Steel.workers of America, (Steelworkers), 

representatives of the miners at the ,\ffiax facility, sought to intervene as a 

party. 

On August 9, 1982 the Secretary moved to withdraw his complaints. In 

support of his motion the Secretary stated that his citations were 

previously vacated in accordance with MSHA policy memorandum No. 82-12MM 

issued July 9, 1982. 

On September 15, 1982; plirsuant fo Cornrnission Rule 29 C.F.R. § 2700.4, 

the Steelworkers were permitted to intervene. The parties were further 

invited to brief the issue of whether the Commission should grant the 

Secretary's motion to withdraw his complaints. 

The Steelworkers object on the grounds that the Act requires the 

Connnission's approval for withdrawal of the citation (30 U,S.C, 820(k)) 

further, the Steelworkers argue that the policy relied on by the Secretary 

is not a proper reason for dismissing these cases. Finally, the Steelworkers argue that the Secretary's enforcement policy is inconsistent with 

the Act. 

The Act expressly accords a miner several rights the exercise of which 

will not subject him to discharge or discrimination. However, there is 

nothing in the Act authorizing affected miners or their representatives the 

right to prosecute a contested citation if the Secretary elects not to do 

so. Cf Secretary v. Kocher Coal Company Penn 80-174-R, (December 8, 1982); 

Marshall v. Occupational Safety & Health Review Commission et al 635 F 2d 

544; Oil, Chemical and Atomic Workers International Union v. Occupational 

Safety & Health Review Commission 671 F~ 2d 643 (1982). cert denied. 

Accordingly, pursuant to Commission Rule 29 C.F.R. § 2700.11, I enter 

the following: 

ORDER 

1. The motion of the Secretary to dismiss his complaints is granted. 

2. The cases are dismissed. 

3. The objections of the United Steelworkers of America are denied. 

Law Judge 

22Gl 
Distribution: 

Edward Fitch, Esq. 

Office of the Solicitor 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Charles C. High, Jr., Esq. 

Kemp, Smith, White, Duncan & Hammond 

P.O. Drawer 2800 

El Paso, Texas 79952 

Mary Win-O'Brien, Esq. 

United Steelworkers of America 

Five Gateway Center 

Pittsburgh, Pennsylvania 15222 

1262 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 2 9 l 

PRINCESS SUSAN COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

CONTEST OF CITATION 

Docket No. WEVA 79-423-R 

Citation No. 0641203; 

9/4/79 

Campbells Creek Surf ace 

Mine 

ORDER OF DISMISSAL 

Contestant requests approval to withdraw its Contest in 

the captioned case. Under the circurn tances herein, permis~ 

sion to withdraw is granted. ~ CFR §, 2700. lL The case 

U1erefore dismissed. u 

I vl~ rative Law Judg.e 

Distribution~ By certified 

' Leo McGinn, Esq., Office of the S licitor, p.s. Department 

of Labor, 4015 Wilson Boulevard, ~rlington,\ VA 22203 

. l \ \ 

c. Lynch Christian, Esq., Princess' Susan c6.,cil Company I 

Jackson, Kelly, Holt & O'Farrell, P.O. Box 153, Charleston, 

WV 25322 ' , 

\/ 

*U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-638/4378 

2266