INDEX APRIL 1980 

Commission Decisions 

PITT 

Corp,MSHA v. SE 

3-10-80 Sunbeam Coal Corp., MSHA v. 

3-18-80 Burgess Mining & Construction 

3-21-80 The Hel~n Mining Co, MSHA v. 

3-21-80 Kentland-Elkhorn Coal Corp v. MSHA 

3-21-80 MSHA ex rel A. J. Sparks v. Allied 

79-210-214 

79-42-R 

79-11-P 

78-399 

PITT 

& UMW PIKE 

Chemical 

Corporation 

4-14-80 Duval Corp., MSHA v. 

4-14-80 Union Rock & Materials corp, MSHA v. 

4-21-80 Co-op Mining Co, MSHA v. 

4-21-80 Pittsburg & Midway Coal Mining Co, 

MSHA v. 

4-24-80 Ace Drilling Coal Co, MSHA v. 

Administrative Law Judge Decisions 

4-01-80 Hecla Mining Co., MSHA v. 

4-02-80 Consolidation Coal Co., MSHA v. 

4-02-80 Utah International, MSHA v. 

4-04-80 United Castle Coal Co., MSHA v. 

4-07-80 Pacer Corp., MSHA v. 

4-08-80 Medusa Cement Co., MSHA v. 

4-08-80 Oklahoma Cement Co., MSHA v. 

4-08-80 U S Steel Corp. v. MSHA & UMWA 

4-08-80 Heldenfels Brothers, MSHA v. 

4-11-80 Jesse S Morie & Son, MSHA v. 

4-11-80 Consolidation Coal Co., MSHA v. 

4-14-80 Capitol Aggregates, MSHA v. 

4-14-80 Leeco, Inc., MSHA v. 

4-15-80 Riverside Cement Co, MSHA v. 

4-15-80 Johnson Brothers Coal Co.,MSHA v. 

4-15-80 Asarco Inc., MSHA v. 

4-18-80 Quarto Mining Co. v. MSHA & UMWA 

4-18-80 Valley Camp Coal Co., MSHA v. 

4-22-80 Phoenix Redi-Mix Co., Msha V. 

4-22-80 Island Creek Coal Co. v. MSHA & UMWA 

4-22-80 Capitol Aggregates, MSHA v. 

4-24-80 Allied Chemical Corp., MSHA v. 

4-25-80 Luck Quarries Inc., MSHA v. 

4-28-80 Consolidation Coal Co., MSHA v. 

4-28-80 Warner Co., MSHA v. 

4-29-80 Sun Landscaping & Supply Co., MSHA v. 

4-29-80 Ranger Fuel Corp., MSHA v. 

4-29-80 Peabody Coal Co., MSHA V. 

4-29-80 BS K Mining Co., MSHA v. 

4-29-80 Helvetia Coal Co .. v. MSHA 

WEVA 79-148-D 

WEST 79-194-M 

DENV 78-579-PM 

DENV 75-207-P 

BARB 74-666 

PITT 75-1-P 

WEST 79-251-M 

WEVA 80-145 

WEST 79-237 

VA 79-99-D 

DENV 79-94-PM 

SE 79-27-M 

DENV 79-146-PM 

WEVA 80-54-R 

DENV 79-575-PM 

WILK 78-322-PM 

WEVA 79-362 

DENV 79-163-PM 

KENT 79-112 

WEST 79-97-M 

PIKE 79-41-P 

DENV 79-473-PM 

LAKE 80-44-R 

WEVA 79-116-D 

WEST 79-13-M 

WEVA 79-242-R 

DENV 79-163-PM 

WILK 79-109-PM 

VA 79-102-DM 

WEVA 80-183 

PENN 79-161-M 

WEST 79-278-M 

WEVA 80-121 

KENT 80-124 

BARB 79-190-P 

PENN 79-165-R 

Pg. 775 

Pg. 776 

Pg. 778 

Pg. 778 

Pg. 778 

Pg. 781 

Pg. 782 

Pg. 784 

Pg. 787 

Pg. 790 

Pg. 793 

Pg. 796 

Pg. 798 

Pg. 803 

Pg. 811 

Pg. 819 

Pg. 827 

Pg. 832 

Pg. 851 

Pg. 862 

Pg. 866 

Pg. 869 

Pg. 876 

Pg. 895 

Pg. 904 

Pg. 920 

Pg. 925 

Pg. 928 

Pg. 934 

Pg. 942 

Pg. 948 

Pg. 950 

Pg. 954 

Pg. 965 

Pg. 972 

Pg. 975 

Pg. 985 

Pg. 987 

Pg. 998 

Pg. 1011 
COMMISSION DECISIONS 
APRIL 

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

Secretary of Labor, MSHA v. Peabody Coal Co., LAKE 80-25, etc. (Judge 

Kennedy, March 5, 1980) 

Secretary of Labor, MSHA v. Sewell Coal Company, HOPE 79-6-P, etc. 

(Judge Lasher, March 12, 1980) 

Secretary of Labor on behalf of Walter W. Karnstein v. Allis-Chalmers 

Corporation, LAKE 80-242-DM (Judge Broderick, March 28, 1980 Order of 

Temporary Reinstatement) 

Secretary of Labor, MSHA v. United Castle Coal Company, VA 79-141-D 

(Judge Broderick, March 13, 1980; United Castle's PDR) 

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

Secretary of Labor, MSHA v. Union Rock & Materials Corp., DENV 78-579-PM 

(Judge Fauver, March 5, 1980) 

Secretary of Labor, MSHA v. Duval Corporation, WEST 79-194-M (Judge Morris, 

March 4, 1980) 

Princess Susan Coal Company v. Secretary of Labor, MSHA, WEVA 79-423-R 

(Judge Melick, March 7, 1980) 

Windsor Power House Coal Co. v. Secretary of Labor, MSHA, WEVA 79-193-R 

(Judge Melick, March 10, 1980) 

Secretary of Labor, MSHA v. United Castle Coal Company, VA 79-141-D 

(Judge Broderick, March 13, 1980; Secretary's PDR) 

The Commission vacated its Direction for Review in the following cases: 

Secretary of Labor, MSHA v. Pacer Corporation, DENV 79-257-PM. 

Secretary of Labor, MSHA v. Alabama By-Products Corporation, SE 80-41-R. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

1730 K STREET NW, 6TH FLOOR 

__ WASHINGTON, D.C. 20006 

March 10, 1980 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA), Docket No. PITT 79-210 thru 214 

v. 

SUNBEAM COAL CORPORATION 

ORDER 

The petition for discretionary review is dismissed. Section 

113(d)(2)(A)(i) requires that a petition for discretionary review be 

filed and served within 30 days after the issuance of the judge's 

decision. The judge's decision was issued on January 29, 1980. The 

petition for discretionary review was received by the Commission on 

March 3, 1980, more than 30 days after the issuance of tbe-judge's 

decision. Commission Rule 5(d), 29 CFR §2700.S(d), states that "filing 

of a petition for discretionary review is effective only upon receipt." 1/ 

Accordingly, the petition is dismissed as untimely filed. 

):_/ Good cause to waive the statutory period is neither claimed nor 

shown in the petition; the certificate of service states that the petition 

was mailed on February 28, 1980, the 30th day after the issuance of the 

judge's decision. We therefore need not and do not decide whether the 

30-day time period in section 113(d)(2)(A)(i) may be waived for good 

cause. We also do not view the additional 5-day period provided for 

filing responses or other documents when service of a document is by 

mail in 29 CFR §2700.8(b) to apply to the statutory period here. 

80-3-7 

775 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

-- WASHINGTON, D.C. 20006 

March 18, 1980 

RAY MARSHALL, SECRETARY OF LABOR 

UNITED STATES DEPARTMENT OF 

LABOR 

v. 

BURGESS MINING AND CONSTRUCTION 

CORPORATION 

Docket No. SE 79-42-R 

ORDER 

Burgess Mining and Construction Corporation has moved to vacate the 

direction for review. Burgess asserts that the Secretary's failure to 

file his brief within 20 days after our granting of his petition for 

discretionary review is governed by 29 CFR §2700.72. That rule requires 

the petitioner to file its brief within 20 days-of the granti9g of a 

direction for review and provides that if the petitio~er- -fails to do so, 

the direction for review may be vacated. 

The Secretary filed his brief by mail 25 days after our order 

directing review. The Secretary argues that his brief was timely filed 

~nd cites 29 CFR §2700.8(b), which provides: 

when service of a document is by mail, 5 days shall 

be added to the time allowed by these rules for the 

filing of a response or other document. 

While we are concerned with any undue delay in the proceedings before us 

and construe our rules so as to expedite matters wherever possible, we 

also are·bound to interpret our rules so as to secure just determinations. 

29 CFR §2700.l(c). Rule 8(b) was promulgated to en.sure, as far as 

possible, that parties served by mail not be deprived, through the 

vagaries of the post, of time elsewhere allowed in our rules for the 

preparation and filing of responses. 

80-3-16 
The .Secretary was served by mail with our direction for review. 

Under Rul-e-8 (bJ·,-· Saays may properly be added to the 20 days allowed 

under Rule 72 within which to file his brief in response to our direction. 1/ His brief, which was filed by mail on the 25th day, wastheref~re timely. 

Accordingly, the motion to vacate is denied. 

Commissioner 

1./ Rule 8(b) does not, however, apply to the 30 day statutory period 

for filing a PDR after issuance of a judge's decision. See our order 

dismissing the PDR in Sunbeam Coal, PITT 79-210 thru 214 (March 10, 

1980). 

777 
FEDE~L _MJNE-.SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

THE HELEN MINING COMPANY 

KENTLAND-ELKHORN COAL 

CORPORATION 

v. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

March 21, 1980 

Docket No. PITT 79-11-P 

Docket No. PIKE 78-399 

UNITED MINE WORKERS OF AMERICA 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

ARNOLD J. SPARKS, JR., 

v. Docket No. WEVA 79-148-D 

ALLIED CHEMICAL CORPORATION 

ORDER 

The UMWA has moved for an order staying the effect of Collllllission 

decisions in these cases pending judicial review and the matter having 

come before the Commission and the Commission having examined the proofs 

80-3-18 

778 
and the motion papers and having considered the same, it is 

~OM~)® Marian-Pearlman Nease, Commissioner vi 

Backley, Commissioner, concurring: 

While agreeing with my colleagues in denying the motion of the UMWA 

to stay the effect of our decisions in these cases pending judicial 

review, I believe some discussion of the UMWA's motion and my basis for 

denial is in order. The UMWA alleges that there is a strong likelihood 

that it will prevail on the merits on appeal; that its members will be 

irreparably injured unless a stay is granted; that a stay will not 

substantially harm other interested parties; and that it would be in the 

public interest to issue a stay. 

The UMWA's claim of irreparable harm to its members is general in 

nature. The allegations made concern the problems resulting from decreased 

miner participation in inspections on a nation-wide basis. No part of 

the UMWA's argument and none of the motion's supporting affidavits speak 

to the necessity of a stay of the Commission's mandates in the instant 

cases. ·Thus, I conclude that there has been no adequate showing of 

irreparable harm to the UMWA in these cases. 

Aside from the inadequacies discussed above, I have serious concern 

with the nature of the relief that the UMWA has requested. As I read 

the stay motion and its supporting memorandum, the UMWA does not seek a 

stay of the Commission's mandate in these particular cases, but instead 

seeks a stay of the precedential value of the Commission's opinions. 

This I cannot do. To stay the precedential effect of our decisions 

would not merely result in the issuance of final Commission decisions 

contrary to what the Commission has found to be the intent of Congress, 

but it would be inconsistent with the role assigned to the Commission 

under the Act. 1_/ 

l./ Section 113, Federal Mine Safety and Health Act of 1977, 

30 U.S.C.A. § 801 et~ 

779 
This Commission was established to independently decide questions 

of law and pol4.cy.on,a-uniform, national basis. To temporarily overrule 

our precedent pending judicial review of our final orders in these three 

cases would be in derogation of our function. I therefore conclu4e 

that, aside from the inadequate showing of irreparable harm in these 

cases, the UMWA has not established the appropriateness of the relief it 

seeks. 

Richard V. Backley, oner 

780 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

DUVAL CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 14, 1980 

Docket No. WEST 79-194-M 

ORDER 

The petition for discretionary review is dismissed. Section 

113(d)(2)(A)(i) requires that a petition for discretionary review be 

filed and served within 30 days after the issuance of the judge's 

decision. 1/ Commission Rule 5(d), 29 CFR §2700.S(d) (1979), states 

that "fili;-g of a petition for discretionary review is_effective only 

upon receipt." The petition for discretionary review-was received by 

the Commission on April 4, 1980, more than thirty days after. the 

issuance of the judge's decis~on. 

Accordingly, the petition is 

1/ 30 U.S.C. §823(d)(2)(A)(i) (Supp. II 1978). l/ See Sunbeam Coal Corporation, Docket No. PITT 79-210 through 79-214, 

(order dated March 10, 1980). 

80-4-6 

781 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION. (MSHA), 

v. 

UNION ROCK AND MATERIALS 

CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 14, 1980 

Docket No. DENV 78-579-PM 

ORDER 

The petition for discretionary review is dismissed. Section 

113(d)(2)(A)(i) requires that a petition for discreti~~ary review be 

filed and served within 30 days after the issuance of the judge's 

decision. 1/ Commission Rule 5(d), 29 CFR §2700.5(d) (1979), states 

that "fili~g of a petition for discretionary review is effective only 

upon receipt." The petition for discretionary review was received by 

the Commission o.n April 7, 1980, more than thirty days after the 

issuance of the judge's decision. 

Accordingly, the petition is 

"--\\\1\l~_ /..\ \QQ.}.C llW L1 

1

\\0iLlo 

Marian Pearlman Nease, Commissioner 

1/ 30U.S.C. §823(d)(2)(A)(i) (Supp. !!1978). I/ See Sunbeam Coal Corporation, Docket No. PITT 79-210 through 79-214, 

(order dated March 10, 1980). 

80-4-5 

782 
Distribution 

Gary W. Houston, Esq. 

Union Rock and Materials Corporation 

1000 Kiewit Plaza 

Omaha, Nebraska 68131 

Malcolm R. Trifon, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

11071 Federal Building 

450 Golden Gate Avenue 

San Francisco, California 94102 

Honorable William Fauver 

Administrative Law Judge 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

783 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION .(MSHA) 

v. 

CO-OP MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 21, 1980 

Docket Nos. DENV 75-207-P 

DENV 76-6-P 

IBMA 77-30 

DECISION 

This penalty proceeding arises under the Federal Coal M~ne Health 

and Safety Act of 1969, 30 U.S.C. §801 et seq. (1976) (amended 1977), and 

involves 15 alleged violations. On March 31, 1977, after a hearing, the 

administrative law judge issued his decision finding that 14 of the 

alleged violations occurred and assessing penalties in the total amount 

of $2,898. Co-Op Mining Company appealed one finding of violation and 

seven of the penalty assessments. 1./ 

Co-Op contends that the Mining Enforcement and Safety Administration (MESA) did not sustain its burden of proving a violation of 30 CFR 

§75.603, which was cited in Notice No. 1 TLC. We have thoroughly 

reviewed the record, and we conclude that the evidence supports the 

judge's finding of violation. 

1/ On March 8, 1978, this case was pending on appeal before the 

Secretary of Interior's Board of Mine Operations Appeals under the 1969 

Act. This appeal is before the Connnission for disposition under section 

301 of the Federal Mine Safety and Health Amendments Act of 1977, 30 

u.s.c.A. §961 (1978). · 

80-4-10 

784 
As to the remaining notices under appeal, Co-Op concedes that the 

evidence supports-a:· finalng of violation in each instance. However, CoOp argues that the assessment of penalty made by the judge for each 

violation was erroneous and excessive. Co-Op concedes that the judge 

may determine de novo the amount of the civil penalty, but argues that 

the judge is bound by the formulas provided in 30 CFR §100 in assessing 

any civil penalty. We reject this argument. 30 CFR §100 was applicable 

only to MESA's Office of Assessments in initially proposing penalties. 

The authority of an administrative law judge to assess penalties de novo 

in a penalty proceeding under the 1969 Act was not governed by the 

method of computation utilized by MESA's Office of Assessments. 

Finally, Co-Op presents no persuasive arguments why the penalties 

assessed by the judge are excessive. The evidence emphasized by Co-Op 

in support of its argument was before the judge for his consideration. 

After a complete review of the record, we find that the judge gave full 

and fair consideration to all relevant testimony and other evidence of 

record in considering the six statutory criteria required before 

assessing penalties. The record supports his determinations and his 

penalty assessments should not be disturbed. '!:_/ 

Accordingly, the judge's decision is affirmed. 

A. 

Commissioner 

]:../ The Commission has declined to disturb penalty amounts assessed by 

a judge where the record reflects his full consideration of the six 

statutory criteria. See, e.g., Peabody Coal Co., 1 FMSHRC 1494 (1979); 

Pittsburgh Coal Co., 1 FMSHRC 1468 (1979); U.S. Steel Corp., 1 FMSHRC 

1306 (1979); Kaiser Steel Corp., 1 FMSHRC 984 (1979); Shamrock Coal Co., 

1 FMSHRC 799 (1979); Rushton Mining Co., 1 FMSHRC 794 (1979). 

785 
Distribution 

Carl E. Kingston, Esq. 

Attorney for Co-Op Mining Co. 

53 West Angelo Avenue 

Salt Lake City, Utah 84115 

Thomas A. Mascolino; Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Administrative Law Judge Harvey C. Sweitzer 

U.S. Department of Interior 

Office of Hearings & Appeals 

6432 Federal Building 

Salt Lake City, Utah 84138 

786 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION -- .---· - -

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 21, 1980 

PITTSBURG & MIDWAY COAL MINING 

COMPANY 

v. Docket No. BARB 74-666 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

IBMA 76-57 

DECISION 

This case arises under the rederal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. §801 ~ ~· (1976) (amended 1977) ["the 1969 Act"]. 

It involves an imminent danger withdr~wal order that was issued on 

February 28, 1974, by a Mining Enf~ircement and Safety Administratibn 

(MESA) inspector to Pittsburg & Mitfway Coal Mining Company under section 

104(a) of the 1969 Act. 1/ In the withdrawal order the inspector cited 

four conditions that he believed constituted an imminent danger. 2/ The 

cited conditions involved an allegedly damaged trailing cable to ~ roof 

boltinf machine, an allegedly damaged trailing cable to a loading 

machine, alleged accumulations of loose coal and coal dust, and allegedly 

loose overhanging ribs. The order was terminated on March 1, 1974, 

after the cited conditions were abated. 

±./ Section 104(a) provided: . 

If, upon any inspection of a coal mine, an ~uthorized 

representative of the Secretary finds that an imminent 

danger exists, such representative shall determine the area 

throughout which such danger exists, and thereupon shall 

issue forthwith an order requiring the operator of the 

mine or his agent to cause immediately all persons, except 

those referred to in subsection (d) of this section, to be 

withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary 

determines that such imminent danger no longer exists. 

2/ Section 3(j) of the 1969 Act defined the term "imminent danger" as: 

the existence of any condition or 

practice in a coal mine which could 

reasonably be expected to cause death 

or serious physical harm before such 

condition or practice can be abated; 

80-4-9 

787 
Pittsburg & Midway filed an application for review of the withdrawal 

order and a hearing w.:;i.s_hg_ld. On December 16, 1975, the administrative 

law judge held for ·MESA in part and for Pittsburg & Midway in part. The 

judge found that the conditions created by the trailing cable to the 

roof bolting machine and the trailing cable to the loading machine 

constituted imminent dangers, but that the conditions created by the 

accumulations of loose coal and coal dust, and the overhanging ribs did 

not. The judge also modified the withdrawal order by deleting its 

references to the overhanging ribs and to the accumulations of loose 

c·oal and coal dust (but not the references to accumulations relating to 

the trailing cables .to the roof bolting and the loading machines). Both 

parties appealed the portions of the judge's decision that were adverse 

to them, including the judge's modification of the withdrawal order. 

After a careful review of the record, we affirm the judge's 

decision. We conclude that the judge's basic factual findings are 

correct, that the results reached by the judge are correct, and that any 

error he might have committed in applying a test for determining whether 

an imminent danger existed was not prejudicial. In this regard, we note 

that whether the question of imminent danger is decided with the "as 

probable as not" gloss upon the language of section 3(j); or with the 

language of section 3(j) alone, the outcome here would be the same. We 

therefore need not, and do not, adopt or in any way approve the "as 

probable as not" standard that the judge applied. With respect to cases 

that arise under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. §801 et~·· we will examine anew the question of what conditions 

or practices constitute an imminent danger. Finally, we conclude that 

the judge acted correctly in modifying the withdrawal order. Section 

lOS(b) of the 1969 Act specifically permitted the modification of an 

imminent danger withdrawal order after a hearing. l._/ 

Accordingly, the judge's decision 

I \ r':O». 

. ".. ' 

Harian Commissioner 

3/ Section lOS(b) stated: 

Upon receiving the report of such 'in estigation, the 

Secretary shall make findings of fact, \n he shall issue a 

written decision, incorporating therein a order vacating, 

affirming, modifying, or terminating the order, or the 

modification or termination of such order, or the notice, 

complained of and incorporate his findings therein. 

788 
Distribution 

Barry G. McGrath, Esq. 

George M. Paulson, Jr., Esq. 

Pittsburgh & Midway Coal Company 

The Gulf Companies 

1720 South Bellaire St. 

Denver, Colorado 80222 

Thomas A. Mascolino, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

L. Thomas Galloway, Esq. 

Center for Law & Social Policy 

1751 N Street, N.W. 

Washington, D.C. 20036 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 Fifteenth St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge John F. Cook 

FMSHRC 

Skyline Center 2, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

789 
FEDl;RAL 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 

April 24, 1980 

Docket No. PITT 75-1-P 

ACE DRILLING COAL COMPANY, INC. IBMA 76-60 

DECISION 

This is a civil penalty proceeding arising under the Federal Coal 

Mine Health and Safety Act of 1969, 30 U.S.C. §801 ~~· (1976 & Supp. 

I 1977). The administrative law judge found that Ace Drilling Coal 

Company, Inc., violated 30 CFR §77.410 and 30 CFR §77.1605(d) by failing 

to maintain a working backup alarm and a working horn on its front-end 

loader. 1/ He assessed the operator civil penalties of $7,500 and 

$2,500, respectively. The operator appealed. ]:_/ 

The case arose out of a fatal accident which occurred at the operator's No. 2 strip mine. The company's foreman was killed when a frontend loader backed over him. Following &n inYestigation of the accident, 

a Mining Enfor,cement and Safety Administration inspector found that the 

front-end loader lacked both an operable backup alarm and a horn, in 

violation of the subject regulations. On appeal, the company argues 

that it did not commit the violations. 

The operator admits the backup alarm was inoperable, but argues 

that it should be relieved of liability because the deceased foreman 

knew the alarm was not working and nevertheless ordered the loader to 

commence operation: It asserts the foreman, not the company, committed 

the violation. We reject this argument. In determining liability for 

1./ Section 77.410 provides: 

Mobile equipment, such as trucks, forklifts, front-end loaders, 

tractors and graders, shall be equipped with an adequate automatic 

warning device which shall give an audible alarm when- such equipment 

is put in reverse. 

Section 77.1605(d) provides in pertinent part: 

Mobile equipment shall be provided with audible warning devices * * * 

J::/ The appeal was pending before the Board of Mine Operations Appeals 

as of March 8, 1978. Accordingly, it is before the Commission for disposition. Section 301 of the Federal Mine Safety and Health Amendments 

Act of 1977, 30 U.S.C. §961 (1978). 

80-4-20 

790 
conduct regula~ed .b-y-·the-Act, the actions of the foreman cannot be 

separated from those of the operator. The foreman acts for the operator. Cf. Pocahontas Coal Co., 590 F.2d 95 (4th Cir. 1979). The company 

also argues it should not be held liable because it could not have 

foreseen the foreman's irresponsible action and thus could not have 

prevented the violation. We likewise reject this argument. As stated 

above, the acts of the foreman are acts of the operator. In addition, 

the 1969 Coal Act did not condition liability upon fault. See United 

States Steel Corp., 1 FMSHRC 1306, 1307 (1979); Peabody Coal Co., 

1 FMSHRC 1494, 1495 (1979). 

With respect to the violation of 30 CFR §77.1605(d), the operator 

admits the horn did not work at the time the inspector issued the notice 

of violation. However, it asserts that there was no proof the horn was 

inoperable prior to the accident, and therefore that the judge incorrectly 

found the violation. The operator misses the mark. The issue is whether 

the violation existed at the time it was cited by the inspector. It is 

not necessary, as Ace seems to contend, that a condition contribute to 

an accident before the standard is violated. The Act.does not condition 

the existence of a violation upon the occurrence of an event it is 

designed to prevent. 

Finally, the company argues that the penalties assessed were 

excessive. We have carefully reviewed the record and find that the 

penalties assessed by the judge reflect proper consideration of the 

statutory criteria set forth in the Act. They will not be disturbed. 

Accordingly, the decision of the judge is affirmed. 

lman Nease, Commissioner 

791 
Distribution 

John W. Taylor, Esq. 

Myers, Taylor & Peduzzi 

213 South Center St .• 

Ebensburg, PA 15931 

Thomas A. Mascolino, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Administrative Law Judge William Fauver 

FMSHRC 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

792 
-----

ALMINISTRATIVE I.AW JULGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

·E:it:NVER, COLORADO 80204 

.WR 1 18fl) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND 

HEALTII ADMINISTRATION 

(MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Civil Penalty Proceeding 

Petitioner, 

DOCKET NO. WEST 79-251-M 

A/O NO. 10-00088-05003 

v. Mine: Lucky Friday 

HECLA MINING COMPANY, 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~ 

APPEARANCES: 

Marshall P. Salzman, Esq. 

of San Francisco, California, for petitioner, 

Fred M. Gibler, Esq. 

of Kellogg, Idaho, for respondent. 

DECISION 

Carlson, Judge: 

This cause was heard under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. §801 ~seq. (hereinafter the "Act"), upon the Mine 

Safety and Health Administration's petition for assessment of a civil 

penalty for a violation of the mandatory safety standard published at 30 

C.F.R. §57.19-70. The standard requires that cage doors in shaft hoists be 

closed while men are being hoisted. 

The facts are undisputed. A skiptender employed by respondent opened 

the cage door some 40 feet before the cage stopped, thus risking serious 

injury. He did so in knowing disregard of respondent's strictly enforced 

\~ 

safety policy forbidding that practice. The inspecting officer acknowledged 

that respondent could not have anticipated the employee's action (Tr 5-8). 

793 
The case presents one significant issue: Whether the mine 

operator, despite his lack of negligence, may be found in violation and 

assessed a civil penalty under section llO(a) of the Act. 

The Conunission's jurisdiction is stipulated. Both parties presented 

evidence and filed post-hearing briefs. 

Respondent contends that under MESA v. North American Coal Company 

3 IBMA 93 (1974), a mine operator cannot be found in violation of the Act 

based solely upon an employee's failure to comply with a strictly enforced 

safety policy. Petitioner, on the other hand, contends that the North 

American Coal Company case does not support this proposition, and that other 

decisions establish that an operator can be found in violation of the Act 

even where the operator acted without fault. 

Respondent's reliance on the North American Coal Company case is 

misplaced. Although 'North American Coal appears to allow a "due diligence" 

or "isolated act" defense, its applicability has since been restricted to 

the particular standard involved in that case. See Webster County Coal 

Corporation, 7 IBMA 264 (1977); United_States J>teel Corporation v. Secretary 

of Labor, Mine Safety and Health Administration (MSHA), 1 FMSHRC 1306 

(1979). In United States Steel, the Commission makes clear that under the 

1977 Act an operator is liable for violations of mandatory standards without 

regard to fault; thus, "an operator's safety program and its efforts to 

enforce it are irrelevant to a finding of violation. 11 The present record 

supports a finding of violation. 

An operator's fault, although not relevant to a determination of 

violation, is relevant to a determination of an appropriate penalty.l 

l/See §llO(i) of the Act. 

794 
Because the violation in this case is attributable to an employee's 

deliberate disre_g_arg __ oJ __a _strictly enforced safety policy,2 a low 

penalty is warranted--despite the possibility of serious injury. I conclude 

that $15 is reasonable. 

ORDER 

Accordingly, respondent is ordered to pay a civil penalty of $15 within 

30 days of this decision. 

_ ~udge2/0ther undisputed facts bearing on penalty show that respondent is a large 

- company; that the imposition of a penalty would not impair its ability to 

continue in business; that it had no unfavorable prior history of 

violations; and that it demonstrated good faith in achieving compliance. 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, United States Department 

of Labor, 11071 Federal Building, 450 Golden Gate Avenue, Box 36017,- San 

Francisco, California 94102 

Fred M. Gibler, Esq., Brown, Peacock, Keane & Boyd, P.A., P. 0. Box 659, 

Kellogg, Idaho 83837 

795 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11 /12 

M>R 2 1980 

Civil Penalty Proceeding 

Docket No. WEVA 80-145 

A.O. No. 46-01433-03060 

Loveridge Mine 

DECISION AND ORDER 

Once again the parties' insult our sensibilities and.intelligence 

with a proposal to settle with a wrist slap three extremely serious 

violations that created a hazard of three or more fatalities or 

permanently disabling injuries. The excuse offered is so outrageous 

as to be mind boggling. 

MSHA flouts the law by refusing to prosecute independent contractors. 

As a result, those contractors flout.the law with immunity. OSHA, 

remember, cannot touch them because they are under the "protection" of 

MSHA. 

MSHA then "prosecutes" the operator who pleads the unfairness 

of holding him responsible while the real culprit goes free. This plea 

is appealing to the ears of the assessment office, the solicitor and so 

far the Commission. 

As a result, the operator gets off with a token assessment, the 

policy of non-enforcement proliferates and the death and injury rate 

among miners employed by independent contractors soars. This charade 

has got to stop. 

Based on an independent evaluation and de ~ review of the 

circumstances, I find: 

1. That for the failure to provide safety belts and lines 

to two miners working on a high scaffold the amount o.f the 

penalty warranted for the two violations that occurred is 

$1,000. 

796 
2. That for the failure to provide a handrail on an elevated 

walkway the amount of the penalty warranted is $500. 

3. That fO.r the-· fa-il-ure to provide the hand held grinder with 

an automatic deenergizer the amount of the penalty warranted 

is $250. 

Accordingly, it is ORDERED that the parties motion to approve settlement 

of the three violations charged at the amounts initially assessed, $225, 

$240, and $122 for a total of $587, be, and hereby is, DENIED. 

It is FURTHER ORDERED that for the three violations found the operator 

pay a penalty of $1;750.00 on or before Friday, April 25, 1980 and that, 

subject to payment, the captioned petition DISMISSED. 

Distribution: 

Barbara Kaufmann, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Samuel P. Skeen, Esq., Consolidation Coal Company, Consol Plaza, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

797 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER; COLORADO 80204 

APR,.2 1980 ~~~~~~~~~~~~~~~~~~~) 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

UTAH INTERNATIONAL, INCORPORATED, 

Respondent. 

) 

) 

) Civil Penalty Proceeding 

) 

) DOCKET NO. WEST 79-237 

) MSHA CASE NO. 05-02838-03005 

) 

) Mine: Trapper Strip 

) 

~~~~~~~~~~~~~~~~~~~) 

DECISION 

APPEARANCES: 

Phyllis K. Caldwell, Esq., Office of the Regional 

Solicitor, United States Department of Labor, 

1585 Federal Building, 1961 Stout Street, 

Denver, Colorado 80294 

for the Petitioner, 

Ann Victoria Scott, Esq., Utah International 

Incorporated, 555 California Street, San 

Francisco, California 94104 

for the Respondent. 

BEFORE: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

These proceedings arise pursuant to the Federal Mine Safety and 

Health Act of 1977 (30 U.S.C. §801 et~.). The Petitioner seeks to 

assess a penalty against the Respondent for its alleged violation of 30 

CFR §71.1081 by having failed to collect dust samples for two of its 

employees by the required date. By way of amended answer--the Respondent 

denies it violated the standard in that it did collect the dust sample 

required for one employee, and that no sample was required in the instance 

of the other employee. 

!/" . . the operator shall, during each succeeding 12 month per.iod, 

take one respirable dust sample of the mine atmosphere to which each 

such miner sampled is exposed." fll 

798 
DISPOSITION OF CASE ON STIPULATED FACTS AND BRIEFS 

After the-cas-e--was set for hearing the parties agreed to submit the 

case for decision based upon stipulated facts and briefs. 

FINDINGS OF FACT 

Based upon the stipulation filed by the parties I make the following 

findings of fact: 

1. On January 30, 1979, a respirable dust sample was taken of the 

mine atmosphere to which Respondent's employee, Frank Self, was exposed 

on that day, and Mr. Self acknowledged that such sample was taken by 

signing the sample card. 

2. Mr. Self's social security number is 523-62"':"94-38 ~ whereas the. 

mine data card completed by Respondent for Mr. Self bears the social 

security number 523-69-9438. 

3. The data card containing the results of Mr. Self ,..s respirable 

dust sample taken on January 30, 1979, was mailed to MSHA. 

4. MSHA received the data on or before February 8, 1979. 

5. The dust sample was required to be taken by February 28, 1979. 

6. Mr. Keever was terminated August 15, 1978, as an employee of 

the Respondent. 

7. A change of status card for Mr. Keever was mailed to MSHA on or 

about December 20, 1979, along with approximately 25 other change of 

status cards. 

8. MSHA did not receive Mr. Keever's change of status card, mailed 

on or about December 20, 1979. 

9. Citation number 9944050 was issued to Respondent April 3, 1979. 

10. A second change of status card for Mr. Keever was sent to MSHA 

on or about April 6, 1979. 

799 
11. MSHA received the second change of status card of Mr. Keever on 

April 9,_ 1979. 

12. MSHA r-eeoi:ds-· ref:'tect that the change of status card received on 

April 9, 1979, was the first notification of change of status for Mr. 

Keever. 

ISSUES 

1. In regard to Mr. Self, was there a violation of 30 CFR §71.108 

because of the error in listing the social security number on the data 

card submitted to MSHA? 

2. In regard to Mr. Keever, was there a violation of 30 CFR §71.108 

for failure to take the dust sample even though Mr. Keever no longer 

worked for the Respondent? 

The answer to both questions is no. 

DISCUSSION 

The findings of fact lead to the conclusion that the Petitioner has 

established that its records show that there were no dust samples taken 

as required of the two employees of the Respondent on or before February 

28, 1979; and, the Respondent has established that in the instance of 

one employee, the dust sample was taken timely, and in the other, that 

no sample was taken because the employee was no longer employed by the 

Respondent at the time the sample would have been required. 

The Respondent has met the burden required of it pursuant to 30 CFR 

§71.108. Since that regulation requires, during a succeeding 12 month 

period, the taking of the dust sample of the mine atmosphere to which 

the miner was exposed, the Respondent fulfilled that requirement on 

January 30, 1979, well within the due date of February 28, 1979. 

800 
The Petitioner argues in its brief that inherent within 30 CFR 

§71.108 is a mill~ O£_~r,at9r_~s responsibility to accurately record the 

data by which a miner is identified and sample. However, 30 CFR §71.1112 

and 30 CFR §71.1123 contain requirements concerning the recording of 

data by the operator and transmission and analysis of the dust samples 

by MSHA. At most there may have been a violation of one of these regulations 

for failure to list the correct social security number, however, no 

violation of these sections is alleged. 

The Respondent also did not violate the provisions of 30 CFR §71.108 

by its· failure to take, by the due date of February 28, 1979, a dust 

sample of a miner who no longer was employed by the Respondent. The 

Petitioner states in its brief that "an operator may properly be cited 

if MSHA does not receive either required dust samples or a change of 

status card showing that an employee has been terminated." This conclusion 

may be correct as far as MSHA records are concerned, however, the 

failure of the Respondent to collect the dust sample for someone no 

longer employed by the Respondent does not support a conclusion and 

finding that the Respondent violated 30 CFR §71.108 as alleged. To 

conclude otherwise would suggest an intreperation considerably broader 

than the requirement that is contained within that section. 

'!:__/" •• (b) Each sample shall be accompanied by a completed 3 x 5 inch 

white data card • • • and shall contain the following additional information: 

date of sample, the social security number and occupation of the 

miner whose environment was sampled, tons of coal produced .•• " 

1/"Upon receipt by the Secretary of respirable dust samples taken • 

the following data is recorded: (e) The social security number of the 

individual miner whose atmosphere was sampled." 

801 
I conclude that the Petitioner has shown why, from its records, the 

Respondent was cnarged· wl.tn-the violation for failure to take the two 

dust samples; but the Respondent has shown, conclusively, I believe, 

that there was no violation of the regulation in that one required dust 

sample was, in fact, taken; and in the other instance, no dust sample 

was required to be t~ken. 

CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction 

over the parties and subject matter of this proceeding. 

2. At all times relevant to this proceeding, Respondent was subject 

to the provisions of the Federal Mine Safety and Heal.th Act. of 1977. 

3. Petitioner failed to prove a violation of 30 CFR §71.108 and 

Citation number 9944050 should be vacated. 

ORDER 

Based on the foregoing findings of fact and conclusions of law, 

citation 9944050 and any penalties therefor are vacated. 

Distribution: 

t/'Jon D. Boltz t;:7' 

Administrative Law Judge 

Office of the Regional Solicitor, United States Department of Labor, 

1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294 

Attention: Phyllis K, Caldwell, Esq. 

Utah International Incorporated, 555 California Street, San Francisco, 

California 94104, Attention: Ann Victoria Scott, Esq. 

802 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of: 

ROBERT V. BEVINS, 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

4 APR 1980 

Complaint of Discrimination 

Docket No. VA 79-99-D 

CD 79-128 

Applicant 

UNITED CASTLE COAL COMPANY, 

Respondent 

DECISION 

Appearances: Barbara Krause Kaufmann, Esq., Office of the Solicitor, 

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

Petitioner; 

Michael L. Lowry, Esq., Ford, Harrison, Sullivan, 

Lowry & Sykes, Atlanta, Georgia, for Respondent. 

Before: Judge Edwin S. Bernstein 

Applicant alleges and Respondent denies that in discharging Applicant 

from its employment on April 25, 1979, Respondent unlawfully discriminated 

against Applicant for engaging in actions protected by Section 105(c)(l) 

of the Federal Mine Safety and Health Act of 1977 (the Act). 

A hearing was held on January 22, 1980 in Bristol, -Tennessee. 

Applicant, Roger Jenkins, and Arnold D. Carico testified for Applicant, 

and Michael Forticq testified for Respondent. Upon consideration of the 

evidence, the demeanor of the witnesses, and the parties' posthearing 

briefs, I make the following findings of fact, conclusions of law, and 

order. 

803 
FINDINGS OF FACT 

Applicant, Robert v. Bevins, began his employment with United Castle 

Coal Company in February 1979. He was employed as a section foreman in a 

preparation crew which worked the evening shift, from 3:30 to 11 p.m. 

The preparation crew prepared the mine for the production crew, which worked 

from 7 a.m. to 3 p.m. The preparation crew's duties included such tasks as 

cleaning up loose coal, cleaning and rock dusting the belts, doing extra 

roof bolting, and pumping water. His crew consisted of five men who worked 

inside the mine, and one who worked outside. Carl Fogarty, the mine's 

general foreman, was Applicant's immediate supervisor. Mr. Fogarty in turn 

was supervised by Jack Tiltson, the mine's general superintendent. 

On March 16; 1979, an MSHA inspector issued Citation No. 0679915 to 

Respondent, which described the following alleged violation: 

The approved ventilation system and methane and dust 

control plan was not complied with in that approximately 

20 permanent stoppings erected between intake and belt 

entries or returns and belt entry has substantial openings 

or were constructed partially of wood or both. The approved 

plan requires that the stoppings be constructed of incombustible material and constructed with sufficient strength 

to serve the purpose intended. Approximately 24,000 cubic 

feet of air of the 56,000 cubic feet. The permanent stopping 

lines in question were not repaired in a substantial -or 

incombustible manner in that holes present in the stopping 

lines were covered by such materials as wood, paper and 

plastic line brattice and were then covered by a stopping 

sealant product. The holes were 811 x 18" in size and existed 

in the return stopping line between the portal and a point 

approximately 600 feet inby. 

The MSHA inspector established April 5, 1979, as the date for abatement 

of this condition. This abatement period was subsequently extended to 

April 24, 1979. 

804 
On March 26, 1979, a rock fall occurred in the mine which caused 

production to -stop-·unrti--the condition was corrected. Production resumed 

on April 16, 1979. Applicant testified that he believed that he was 

discharged on April 25, 1979 because he did not work fast enough in cleaning 

up the rock fall. He stated that he could not work any faster without 

jeopardizing the safety of himself and his men. Therefore, he contended 

that he was entitled to the protection of Section 105(c)(l) of the Act. 

Applicant offered no evidence that he ever filed a safety or health complaint with either MSHA or his supervisors. His contention of discriminatory discharge was based upon one conversation between Mr. Tiltson and 

himself and the fact that he was later discharged. 

Applicant testified that in the beginning of April 1979, about one week 

after the rock fall occurred and three weeks before his discharge, 

Mr. Tiltson told him that he was very unhappy with the progress of Applicant 1 s crew in cleaning up the rock fall, and that unless there was better 

progress, Mr. Tiltson would discharge Applicant. Mr. Tiltson told Applicant 

that as far as Applicant's crew was concerned, "the tail is wagging the dog," 

meaning that Applicant was having difficulty supervising the crew and that 

the men were doing as they pleased. Applicant disagreed, and told 

Mr. Tiltson that he could not work faster because of the hazardous conditions 

involved, and that the work had to be performed with extreme caution. Applicant testified that this was the only time that Mr. Tiltson or any one of 

Respondent's officials threatened to fire him. On Thursday, April 12, 1979, 

Applicant sustained an injury on the job. He worked the next day and Monday 

through Thursday, April 19, the following week. On April 19, Applicant was 

805 
directed ~o repair the stoppings which were the subject of the MSHA citation 

quoted above. He~worke<l ~t-the mine's face area with two of his men, and 

left three other men to repair the stoppings in an area about three-quarters 

of a mile from the face. He was told that the three men repaired the 

stoppings, but he did not examine their work. At the end of the shift, he 

filed a written daily report with his supervisor which stated in part: 

"Worked on repairing stoppings from portal with 3 men. Repaired stoppings 

from portal down to where last rock fall was. Took 2 men and went to section. 

Scooped sump hole in No. 1. * * *" 

On April 20, 1979, Applicant visited a doctor concerning his injury and, 

on orders of the doctor, did not return to work that month. 

On April 25, 1979, Applicant met with Mr. Tiltson. The superintendent 

told Applicant, "I decided yesterday that I would just let you go." 

Applicant did not ask Mr. Tiltson why he was being discharged and 

Mr. Tiltson did not elaborate. 

Roger Jenkins, a United Cas·tle Coal Company employee testified that at 

the request of Mr. Tiltson, he observed Applicant cleaning up the roof fall 

in March 1979 and felt that the crew was working fast enough. He stated 

that this work had to be performed slowly because the miners work under 

unsupported roof at all times. 

Arnold D. Carico, an MSHA inspector, stated that although he did not 

issue the original citation in connection with Respondent's defective 

stoppings, he visited Respondent's mine on April 24, 1979 because remedial 

806 
action w~s supposed to be completed by that date. He stated that MSHA had 

found 20 of a to~al -~f,4-0 or 50 stoppings in Respondent's mine to be 

deficient. On April 24, Mr. Carico was told by Respondent that the 

condition had been abated but when he inspected three of the first 10 or 12 

stoppings going down into the mine from the portal or entrance, he found 

that the condition had not been abated, and therefore he issued a withdrawal 

order pursuant to Section 104(b) of the Act. The Order was terminated 

two days later, on April 26. 

Respondent's president, Michael Forticq, stated that he visited the 

mine on April 24, 1979, and met with Mr. Carico after the MSHA inspector had 

completed his inspection. Mr. Carico told Mr. Forticq that the repair work 

on the stoppings was so poorly done as not to constitute a good faith effort 

to abate the violation. Upon inspecting the stoppings himself the following 

day, Mr. Forticq found pieces of cardboard, wood, and other combustible 

materials st~ffed into the stoppings. He agreed with the inspector that the 

corrective work was so carelessly perfomed that the issuance of the withdrawal order was appropriate. He also stated that he was very upset about 

this. Mr. Forticq testified that he had attempted to build a good relationship with MSHA, and that he was very hurt that this situation had 

arisen. After speaking with the MSHA inspector on April 24, Mr. Forticq 

told Mr. Tiltson, the mine superintendent, that this was serious enough to 

warrant the discharge of the person responsible. It should be noted that 

at the time, Mr. Tiltson's job was in serious jeopardy, and he knew that he 

was also under consideration for possible discharge. Hr. Forticq testified 

that following their conversation, Mr. Tiltson determined that Applicant 

807 
was responsible for doing the work on the stoppings, and Mr. Tiltson 

discharged Applicant-the-next day. Mr. Forticq further testified that 

Mr. Tiltson was discharged in the end of May or early June after having been 

given a few weeks prior notice. Carl Fogarty, the mine's general foreman 

and Applicant's immediate supervisor, was also discharged because of "his 

apparent lack of con~ern for regulations and lack of diligence in seeing 

that they were properly adhered to." 

CONCLUDING FINDINGS AND CONCLUSIONS OF LAW 

For Applicant to prevail in this action, he must show that his safetyrelated actions constituted "protected activity." Th,is concept has received 

considerable attention from the courts under both the 1969 and 1977 Mine 

Acts. The leading case is Phillips v. Interior Board of Mine Operations 

Appeals, 500 F.2d 772 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975). 

There, the Court held that the plaintiff's notification to his foreman of 

possible dangers was an "essential preliminary stage" of those actions which 

bring the protection of the Act into play. Id. at 779. This view, in the 

Court's opinion, represented a compromise between two extremes which the 

parties had urged upon it: 

We do not think that merely because a discharge 

originates in a disagreement between a foreman and miner 

that the Mine Safety Act is automatically brought into play. 

Nor do we adopt the other extreme, take the bare words of the 

statute with their most limited interpretation, and hold 

that before a miner's safety complaint is accorded the protection of the Safety Act the coal miner must have instituted 

a formal proceeding with the Secretary of Interior or his 

representative. Rather, we look to: the overall remedial 

purpose of the statute * * *; the practicalities of the 

situation in which government, management, and miner operate; 

and particularly to the procedure implementing the statute 

actually in effect at the * * * mine. 

808 

I 
The issue to be determined is whether Applicant's action in any of 

the incidents crossed the line from a "disagreement" to "notification * * * 

of possible dangers * * * " 

Applicant's claim that he was discriminated against pursuant to Section 

105(c)(l) of the Act rests upon a conversation with Mr. Tiltson in which the 

superintendent complained that Applicant was not proceeding quickly enough in 

cleaning up a roof fall. Applicant contends that Mr. Tiltson's complaint 

was an attempt to pressure him to proceed in a manner which he considered to 

be hazardous. There is no evidence that Applicant made any safety complaint 

to MSHA or to any other official. Applicant merely justif}ed his slow 

progress in terms of his proceeding safely. 

On the other hand, Respondent contends that Applicant was discharged 

because his crew repaired defective stoppings which were the subject of an 

MSHA citation in such a careless and faulty manner as to cause MSHA to 

issue a withdrawal order at the mine. Respondent thus asserts that it 

discharged Applicant because Applicant failed to do his job properly, and 

that this had nothing to do with a safety or health complaint. The testiimony of Mr. Forticq, Mr. Carico, and of Applicant himself support 

Respondent's interpretation. Applicant was responsible for correcting 

defective stoppings. The men on his crew did a poor job, apparently unknown 

to Applicant since he did not examine the work. Applicant nevertheless 

reported that the work was done properly. As a result, Mr. Carico was told 

that the work had been done properly, and was surprised to find that the 

work was totally unsatisfactory. Mr. Carico's testimony substantiates the 

fact that the work was done poorly. I believe Mr. Forticq's testimony that 

809 
he was furious about the incident and that he directed Mr. Tiltson to discharge the perS.On respoRsible. Mr. Tiltson, whose job was also in jeopardy 

and who was subsequently discharged himself, needed to find a responsible 

person and discharge him. Since Applicant's crew had performed the work, 

Applicant was held responsible for an incident which had resulted in a 

closure of the mine for two days. It seems clear to me that this incident 

was the cause of Applicant's discharge. 

ORDER 

The complaint of discrimination DISMISSED. The Solicitor's motion 

to assess a civil penalty is DENIED. 

Distribution: 

Edwin s. Bernstein 

Administrative Law Judge 

Barbara Krause Kaufmann, Esq., Office of the Solicitor, U.S. Department 

of Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Michael L. Lowry, Esq., Ford, Harrison, Sullivan, Lowry & Sykes, 

1400 Harris Tower, 233 Peachtree Street, N.E., Atlanta, GA 30303 

(Certified Mail) 

810 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES. 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

PACER CORPORATION, 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

p.§) 7~9:923.Q. 

7 APR 1990 

Petitioner 

Respondent 

Civil Penalty Proceedings 

Docket No. DENV 79-94-PM 

A.O. No. 39-01141-05001 

White Elephant Mine 

Docket No. DENV 79-95-PM 

A.O. No. 39-00509-05001 

Virginia Mine 

.---· 

DECISION 

Appearances: Steven P. Kramer, Esq., Trial Attorney, Office of the 

Solicitor, Mine Safety and Health Administration, U.S. 

Department of Labor, Arlington, Virginia, for Petitioner; 

Mike Treloar, Safety Director, Pacer Corporation, Custer, 

South Dakota, for Respondent. 

Before: Judge William Fauver 

These cases were brought by the Secretary of Labor under section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., 

for assessment of civil penalties for alleged violations of mandatory safety 

standards. The cases were heard at Rapid City, South Dakota, on August 16, 

1979. The Secretary was represented by counsel. Respondent was represented 

by its safety director. Oral arguments were heard at the conclusion of the 

evidence. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probatlve, and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent, Pacer Corporation, operated two 

pegmatite mines known as the White Elephant Mine and the Virginia Mine, in 

Custer County, South Dakota, which produced pegmatite ore for sales in or 

affecting interstate commerce. 

811 
2. Mining operations at Respondent's mines involved drilling a series 

of small holes near pegmatite deposits in preparation for "shooting" or 

blasting the rock-to-recover the ore. The drilling crew consisted of two 

drillers, a loader operator and a truck driver. Normally, the crew would 

work several mines at a time. 

3. The White Elephant Mine's northwest wall consisted of two highwalls, 

one about 75 feet high with a 20-foot overhang, and another, to the left, 

about 25 feet high. A service road provided access to the mine and was 

a safe distance from the overhang. When they were working at this mine, 

the crew would position the drilling machinery 60 to 70 feet from the 

overhang. 

Order No. 328209 

4. On April 20, 1978, Kenneth Westphal, a federal mine inspector, 

accompanied by an inspector-trainee, Howard Aspindall, inspected Respondent's 

White Elephant Mine to investigate a complaint that men were working under 

an overhang and near loose, unconsolidated ground. 

5. Two employees had complained to Inspector Westphal that they had 

been drilling under what they considered a dangerous overhang and near loose 

hanging rock. They drilled until about 10 a.m. when the air compressor broke 

down. They completed their shift at Respondent's Virginia Mine but expected 

to resume drilling at the White Elephant Mine once the compressor was 

repaired. They moved the air compressor to the Virginia Mine in the 

meantime. 

6. Inspectors Westphal and Aspindall drove to the White Elephant Mine 

following the miners' complaint. No one else was there when they arrived. 

They inspected the northwest wall of the mine (Exh. P-lC) and observed loose 

rock and boulders near the overhang and on top of the taller highwall. They 

also observed the other highwall covered with loose rock and one large crack 

near the overhang. 

7. On the day of the inspection, the area was neither barricaded nor 

posted. They observed about four freshly drilled holes underneath the overhang near the loose rock that indicated that men had been working there 

recently. The drilling machine was about 10-15 feet from, and slightly to 

the left of, the overhang. The surface between the drilling machine and the 

area beneath the overhang was fairly level. The machine's controls were on 

the side closer to the overhang so that a man operating the machine would 

have to stand between the machine and the overhang. 

8. The hazard associated with this condition was that the vibrations 

from the drilling activity could cause the loose rock, and possibly the 

boulders and other material on top of the highwall, to roll down and crush 

men standing between the drilling machine and the highwall. 

812 
9. Following the inspection, they returned to Respondent's office, and 

phoned Respondent's safety director, Mike Treloar, to notify him of the condition. When Mr~-Tre--loar-arrived, they made a second trip to the mine. When 

they arrived, the air track machine was still there but the air compressor 

had been moved to the base of the Virginia Mine. At 11 a.m., Inspector 

Westphal issued an order of withdrawal to Respondent, reading in part: "Men 

shall not work near or under dangerous banks. Overhanging banks shall be 

taken down immediately and other unstable ground conditions shall be corrected promptly, or the area shall be barricaded and posted." The cited 

condition was abated on May 4, 1978, by closing down the mine and 

barricading off the area. 

Citation No. 328208 

10. On April 20, 1978, Inspector Westphal also inspected Respondent's 

Virginia Mine and observed that the audible backup alarm on Respondent's 

front-end loader was inoperable or missing. Respondent was renting the 

loader and did not have a spare alarm. A request for a replacement had 

been placed before the inspector arrived. 

11. The absence of a backup alarm created the dan_ger that men working 

in the area (who would be outside the operator's view) would not know when 

the loader was backing up and would be unable to get out of its path. 

Normally, the only men who would be working around the loader were the operator and a truck driver. 

12. At 9 a.m., Inspector Westphal issued a citation to Respondent 

reading in part: "The front-end loader No. 175B was not provided with an· 

audible back-up alarm system." The cited condition was abated on May 4, 

1978, by installing an audible backup alarm. 

Order No. 328452 

13. On July 5, 1978, Guy Carsten, ·a federal mine inspector, inspected 

Respondent's Virginia Mine to investigate an accident. He traveled to the 

area of the highwall on the northeast-to-southeast wall. It was about 

400 feet wide with several benches or layers extending across its face. 

Fifty to seventy-five feet from the top of the highwall was a 10- to 12 foot 

wide bench. From there down to the service road was anotheT 50 to 70 feet. 

The service road was 15 to 18 feet wide at its widest part and was about 

9 feet wide where it passed by an overhang that extended over the inside 

track of the road. From the service road down to the next bench was about 

30 feet. 

14. The inspector observed loose hanging rock on the wall and boulders 

all along the 10- to 12-foot wide bench. There were no danger or warning 

signs in the area. He observed no one traveling the road, but there was 

evidence that it had been traveled recently. Both the track drill and the 

air compressor were also there. 

813 
15. -The inspector's notes read in part: 

Southeast -corner-of highwall was broken up and has an 

overhang, road runs under or alongside the overhang. This 

was on the crusher feed level. Vehicles travel once a day 

to fuel the air compressor for drill. Drill crew have a 

truck to drive to drill, which also uses this road. 

16. The hazard associated with this condition was that the vibrations 

from the drilling activity could cause the loose rock to come down off the 

highwall and hit people traveling the road. There was also a possibility 

that the overhang could fall. 

17. Inspector Carsten issued an order of withdrawal to Respondent, 

-reading in part: 

Loose rocks were observed on the highwall, northeast to 

southeast wall. An overhang was observed on the southeast 

corner of the highwall. Service road runs along this highwall. Fuel truck and drill crew truck traveled this road 

at least once a day when drilling operations are _performed. 

A notice was issued under the old law and abated by barricades and signs. Barricades and signs are missing. 

On July 6, 1978, his order was modified to change: "A notice was issued 

under the old law" to read: "An order was issued under the old law." On 

July 10, 1978, the order was further modified to change the section violation from section 56.3-5 to section 55.3-5. A final modification was made 

on July 12, 1978, to allow travel on the service road under the direct 

supervision of the mine superintendent or the safety director. This would 

enable Respondent to dress down the face and remove the track drill and air 

compressor from the area found to be dangerous. 

18. On July 19, 1973, a notice of violation had been issued to Respondent under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 

§ 801 et seq., for a violation of section 55.3-5 (presence of loose rock on 

south bank of quarry). On April 4, 1974, an order of withdrawal was issued 

for failure to comply with the notice of violation requiring removal of the 

loose rock. On November 17, 1976, the order issued on April 4 was abated 

by posting the southeast bank of the quarry with a "Keep Out" sign and 

barricading the bank with rocks. 

19. On the day of the inspection, July 5, 1978, the inspector observed 

that the barricade had been removed and that the loose rock was still 

present. He determined that loose rock was still present without climbing 

the bank to observe the top bench. 

20. Management should have been aware of this condition because of the 

earlier noncompliance order and because the foreman and safety director 

traveled the area frequently. 

814 
DISCUSSION 

Order No. 328209 

On April 20, 1979, Inspector Westphal charged Respondent with a violation of 30 C.F.R. § 55.3-5, which provides: "Mandatory. Men shall not work 

near or under dangerous banks. Overhanging banks shall be taken down immediately and other unsafe ground conditions shall be corrected promptly, or 

the areas shall be barricaded and posted." The basic issue as to this order 

of withdrawal is whether men were working near or under a dangerous bank. 

The Secretary argues that the testimony of the two inspectors established that the Respondent was still drilling and in the process of mining 

operations at the White Elephant Mine at the time of the inspection. The 

Secretary asserts that the small pocket of ore to the left of the overhang 

that Respondent was going to mine was included in the order as being near 

or under a dangerous area. The Secretary contends that 1ts case was not 

confined solely to the area under the overhang, which also posed a danger, 

because there was loose material in the entire area. 

Respondent contends that several weeks before the -ins-pection, management 

had decided to cease mining operations at the White Elephant Mine after a 

test blast showed the amount of recoverable ore to be minimal. The last 

mining activity occurred about 2 weeks before the inspection and the only 

activity in the cited area on the day of the inspection would have been the 

movement of trucks. The safety director stated that all mining equipment had 

been removed from the area. 

Respondent states that four or five holes had been drilled in an area 

to the left of the overhang in preparation for blasting a small pocket of 

ore. This area is depicted in Exhibit P-lA and in the lefthand portion of 

Exhibit P-lC. Respondent states that the blast would have formed a natural 

barrier to prevent anyone from traveling near the overhang. Respondent 

denies that holes had been drilled recently under the overhang and also 

states that it has never received complaints from employees about dangerous 

banks. 

I find that the Secretary failed to show by a preponde~ance of the evidence that Respondent had recently drilled holes in, and would soon be 

blasting, the rock immediately adjacent to the overhang. The Secretary 

states that besides the four to five holes described by Respondent, there 

were about five holes underneath the highwall that appeared to be freshly 

drilled. There was evidence, however, that blasting had already occurred 

in the cited area, leaving open the possibility that the overhang was 

created by the earlier blast. The inspector-trainee stated he observed burn 

marks on the wall. With the track drill located to the left of the overhang, 

between the two highwalls, the inspector-trainee stated that he was unable 

to determine if work was being performed on the rock underneath the overhang 

or considerably to the left. 

815 
I do find that Respondent's employees had recently drilled holes 

farther to the left and would be returning to blast that area after the 

compressor was repair-ed·. - Because the whole area, including the area farther 

to the left, was included in the order and was near loose overhanging rocks, 

I conclude that Respondent violated section 55.3-5 as alleged in the order. 

Although the Secretary was unable to prove men were working under the overhang, I find that men working in the other area could have wandered near the 

overhang without a barricade in place. I find no merit in Respondent's 

argument that the subsequent blast would have created a natural barrier. 

Citation No. 328208 

On April 20, 1978, Inspector Westphal charged Respondent with a violation of 30 C.F.R. § 55.9-87, which provides: 

Mandatory. Heavy duty mobile equipment shall be provided with audible warning devices. When the operator of 

such equipment has an obstructed view to the rear, the 

equipment shall have either an automatic reverse signal 

alarm which is audible above the surrounding noise level 

or an observer to signal when it is safe to back up •. 

The basic issue as to this citation is whether Respondent's front-end loader 

had an audible backup alarm in operable condition. 

I find that the Secretary proved by a preponderance of the evidence 

that Respondent's front-end loader did not have an operable audible backup 

alarm. 

Order No. 328452 

On July 5, 1978, Inspector Carsten charged Respondent with a violation 

of 30 C.F.R. § 55.3-5, which provides: "Mandatory. Men shall not work near 

or under dangerous banks. Overhanging bank.s shall be taken down immediately 

and other unsafe ground conditions shall be corrected promptly, or the areas 

shall be barricaded and posted." The basic issue as to this order of withdrawal is whether men were working near or under dangerous banks. 

The Secretary contends that the cited area had already been the subject 

of an order of withdrawal and had in fact been barricaded and roped off by 

Respondent. Subsequently, however, Respondent had removed the barrier and 

resumed travel through the cited area. The Secretary argues that an inference can be drawn that Respondent never actually abated the condition that 

was the subject of the prior order. 

The Respondent argues that the prior order of withdrawal covered a different area from the one cited in the subject order and that at the time 

of the prior order it was performing mining operations. Respondent contends 

that on the day of the inspection it was not mining the highwall that was 

the subject of the prior order of withdrawal. 

816 
The Respondent also argues that its superintendent, Dwayne Jones, had 

been in the pegmatite mining business for over 20 years and based on this 

experience, he felt ther.e-. was- no hazard involved in using the service road 

since mining operations in the cited area had ceased. Respondent contends 

that any loose rock that might have created a danger to people traveling 

below had been scaled. 

Respondent also argues that the overhang in the cited area had been 

present for many years and observed on several occasions by inspectors without a violation being cited. · 

I find that the area of the subject order covering the northeast-to-southeast 

wall of the Virginia mine was the same area cited in the order of withdrawal issued 

on July 19, 1973, and in the order of abatement issued on April 4, 1974. I 

find that on the day of the subject inspection, the barricades were not in 

place and the service road was subject to travel near or under banks with 

loose rock and a dangerous overhang. 

CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the par~ies and subject - ---- matter of the above proceedings. 

2. Respondent violated 30 C.F.R. § 55.3-5 by allowing men to 'work near 

or under dangerous banks as alleged in Order No. 328209. Based upon the 

statutory criteria for assessing a civil penalty for a violation of a mandatory safety standard, Respondent is assessed a penalty of $275 for this 

violation. 

3. Respondent violated 30 C.F.R. § 55.9-87 by failing to provide a 

front-end loader with an audible backup alarm as alleged in Citation 

No. 328208. Based upon the statutory criteria for assessing a civil penalty for a violation of a safety standard, Respondent is assessed a penalty 

of $106 for this violation. 

4. Respondent violated 30 C.F.R. § 55.3-5 by allowing men to work near 

or under dangerous banks as alleged in Order No. 328452. Based upon the 

statutory criteria for assessing a civil penalty for a violation of a mandatory safety standard, Respondent is assessed a penalty of $325- for this 

violation. 

ORDER 

WHEREFORE IT IS ORDERED that Pacer Corporation shall pay the Secretary 

of Labor the above-assessed civil penalties, in the total amount of $706, 

within 30 days from the date of this decision. 

-W~~v~ WILLIAM FAUVER, JUDGE 

817 
Distribution: 

Steven P. K-t:amel"-,-- E-sq-;' Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Mike Treloar, Safety Director, Pacer Corporation, Box 912, Custer, 

SD 57730 (Certified Mail) 

818 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

_9Ff1_9E OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

MEDUSA CEMENT COMPANY, 

FALLS CHURCH, VIRGINIA 22041 

8 ~PR 1990 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. SE 79-27-M 

A.lo No. 09-00053-05002 

Clinchfield Mine & Mill 

DECISION 

Appearances: Kens. Welsch, Esq., Office of the Solicitor, U.S. Department 

of Labor, Atlanta, Georgia, for. Petitioner;-·- --

Tom w. Daniel, Esq., Hulbert, Daniel & Lawson, Perry, Georgia, 

for Respondent. 

Before: Judge Cook 

I. Procedural Background 

On April 30, 1979, the Mine Safety and Health Administration (Petitioner) 

filed a petition for assessment of civil penalty against Medusa Cement Company 

(Respondent) in the above-captioned proceeding. The petition was filed pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801.et ~· (1978) (1977 Mine Act), and alleged a violation 

of one provision of the Code of Federal Regulations. 1./ An answer was filed 

on May 17, 1979. 

A notice of hearing was issued on November 7, 1979, scheduling the case 

for hearing on the merits on November 29, 1979, in Macon, Georgia. The hearing was held as scheduled with representatives of both parties present and 

participating. 

A schedule for the submission of posthearing briefs was agreed upon 

following the presentation of the evidence. The Respondent's brief was filed 

1/ The alleged violation is set.forth in a combined citation and withdrawal 

order issued under sections 104(a) and 107(a) of the 1977 Mine Act. This 

document will he referred to as a citation throughout this decision. 

819 
on January 18, 1980. The Petitioner did not file a formal brief, but filed 

a letter on January 25, 1980, containing representations in the nature of 

proposed findings -Of f-ae·t -and- conclusions of law. On February 4, 1980, the 

Respondent filed a letter in response to the Petitioner's representations. 

II. Violation Charged 

Citation No. Date 30 C.F.R. Standard 

96893 11/7 /78 56. 9-3 

III. Witnesses and Exhibits 

A. Witnesses 

The Petitioner called as its witness Thomas w. Hubbard, an MSHA 

inspector. 

The Respondent called as its witnesses Billy R. Berrett, an administrative assistant; John Fowler, the general quarry supervisor; and Richard P. 

Kistler, the plant manager. - --·-

B. Exhibits 

1. The Petitioner introduced the following exhibits into evidence: 

M-1 is a copy of the first page of the proposed assessment compiled 

by the Office of Assessments. 

M-2 is a copy of the second page of the proposed assessment compiled by the Office of Assessments. 

M-3 is a copy of Citation No. 96893, November 7, 1978, 30 C.F.R. 

§ 56.9-3. 

M-4 is a copy of a portion of a miner's complaint. 

M-5 is a copy of a document styled "Inspection of Off the Highway 

Haulage Trucks." 

2. The Respondent introduced the following exhibits into evidence: 

0-1 is a copy of a letter. 

0-2 is a copy of "Minimum Performance Criteria for Brake Systems 

for Off-Highway Trucks and Wagons - SAE Jl66." 

0-3 is a three-page document containing copies of three daily operator's reports for the Euclid No. 2 haul truck. 

0-4 is a three-page document containing copies of three daily operator's reports for various other vehicles. 

820 
IV. Issues 

Two basic ii;sues--a.re-rnvolved in the assessment of a civil penalty: (1) 

did a violation of the 1977 Mine Act occur, and (2) what amount should be 

assessed as a penalty if a violation is found to have occurred? In determining the amount of civil penalty that should be assessed for a violation, the 

law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of the penalty to the size of the operator's 

business; (3) whether the operator was negligent; (4) effect of the penalty 

on the operator's ability to continue in business; (5) gravity of the violation; and (6) the operator's good faith in attempting rapid abatement of the 

violation. 

v. Opinion and Findings of Fact 

A. Stipulations 

1. The Federal Mine Safety and Health Review Commission has jurisdiction over this proceeding (Tr. 4, 5, 11). 

2. The Respondent operates a mine, the products -~J which enter commerce 

or the operations of which affect commerce within the meaning of the 1977 

Mine Act (Tr. 4, 5, 11). 

3. The Respondent's size is set forth in the notification of propose~ 

penalty in that the mine operates 200,000 to 300,000 annual hours of work and 

the controlling company operates 3 to 6 million annual hours of work (Tr. 4, 

5' 11). 

4. The Respondent had no history of previous violations prior to the 

subject citation (Tr. 4, 5, 11). 

5. Assessment of the $345 civil penalty proposed by the Office of 

Assessments will not affect the Respondent's ability to remain in business 

(Tr • 4 , 5 , 11 ) • 

B. Occurrence of Violation 

On November 7, 1978, MSHA inspector Thomas w. Hubbard conducted a complaint investigation at the Respondent's Clinchfield Mine & Mill. He arrived 

at the mine at approximately mid-morning, accompanied by Mr. Bruce Dial, a 

training inspector (Tr. 19-21). 

The complaint had been filed with the Occupational Safety and Health 

Administration and subsequently turned over to Inspector Hubbard (Tr. 23). 

The complaint (Exh. M-4) states, in pertinent part, as follows: "There is 

a large dump truck used to carry limestone from the pit to the crusher. 

The truck has no brakes. This is an off-road truck, used only on plant 

property." 

821 
While on the property, the inspector determined that the R-50 Euclid 

haul truck No. 2 was the t:i;]!<j<_ referred to in the complaint. He made this 

determination on the basis of a telephone call to the complainant and a 

conversation with the union people involved (Tr. 62). 

Billy R. Berrett, the Respondent's administrative assistant; Peter 

Shipes, the representative of the local union; and Mr. Dial. were present 

when the inspector observed the truck (Tr. 25). The inspector testified 

that while walking toward the truck, he observed it running into both an 

earthen berm, described as a mound of dirt located approximately 40-50 feet 

in front of the primary. crusher dump, and the bumper block at the primary 

crusher in order to stop (Tr. 25-26). Not only had the inspector noticed 

this, but it was also pointed out by the union official (Tr. 25). According 

to the inspector, the truck was loaded and coming from the pit at the time 

of this observation, but was not traveling very fast (Tr. 26-27). 

Upon reaching the truck, the inspector asked the driver];_/ how he was 

"fixed for brakes" (Tr. 27). The inspector testified that the driver replied 

"not very well" or "not very good" or words to that effect (Tr. 27). 

A test of the vehicle's braking system was thereupon-conducted at the 

inspector's request. The test was conducted with the truck stationary, and 

the testing method employed was specified by the inspector. The driver 

placed the vehicle in third gear, placed his foot on the brake and depressed 

it to the lower limit of travel, and applied acceleration. The inspector 

testified that he noted the truck starting to "creep" when the driver started 

to accelerate. The inspector testified that "[i]mmediately when [the driver] 

started to accelerate, I asked [the driver] to try fourth gear; and the same 

thing happened. I asked him to apply his hand service brake and try it again. 

In all tests, the machine began to creep at the beginning of acceleration" 

(Tr. 27-28). · The inspector initially requested the driver to "rev" the 

engine to 1,000 rpms during the test, but when the truck began to "creep" 

determined that such was unnecessary (Tr. 27, 37). 

The subject citation (Exh. M-3) was thereupon issued alleging a violation of mandatory safety standard 30 C.F.R. § 56.9-3 as follows: "Neither 

of the service brakes would hold in 3rd or 4th gear on the R-50 Euclid haul 

truck Co. No. 2 being used to haul." The cited mandatory safety standard 

states as follows: "Powered mobile equipment shall be provided with 

adequate brakes." 

The sole question presented in this case is whether the brakes were 

adequate within the meaning of the regulation. According to the inspector, 

MSHA defines "adequate" as "capable of stopping and holding a loaded haul 

unit on any grade on the mine property" (Tr. 33-34). This interpretation 

!:_/ According to Mr. Fowler, Mr. Richard Thorpe was the operator of the 

truck on the day in question (Tr. 84). 

822 
reflects a concise and accurate interpretation of 30 C.F.R. § 56.9-3. The 

inspector testified as an expert that the brakes on R-50 Euclid haul trucks 

will satisfy the_r~quir.emen.ts of the standard if they will hold the truck 

at 1,000 rpms while in third gear (Tr. 53). The test conducted by the 

inspector and his interpretation of the results obtained during the test 

are thus sufficient to establish a prima facie case for inadequate brakes. 

Once this prima facie showing had been made, it was incumbent on the 

Respondent to produce probative evidence establishing the adequacy of the 

brakes in order to rebut the Petitioner's case. The Respondent failed to 

do this. None of the Respondent's witnesses had firsthand knowledge as 

relates to the condition of the brakes. 

The Respondent attacks the testing method employed for two reasons: 

First, the Respondent notes that the inspector did not test the truck in a 

loaded position for·stopping and holding on a grade, and argues that the 

Petitioner failed to establish a valid correlation between the test actually 

performed and the requirement that a loaded truck should stop and hold on 

any grade over which it had to travel at the mine (Respondent's Posthearing 

Brief, pp. 3-5). I disagree. The inspector's expert testimony is sufficient 

to establish a valid correlation between the test actually performed and 

the requirements of the standard. - __ ... --

Second, the Respondent argues that both the test taught to the inspector by MSHA (Exh. M-5) 3/ and the test actually performed are not true tests 

of the braking system in that they test merely the "weakest link in the 

chain," and, additionally, that the tests could result in damage to-the 

equipment. According to the Respondent, Exhibit 0-2 sets forth the proper 

method for testing brakes (Respondent's Posthearing Brief, pp. 5-7). 

The evidence to which the Respondent points in support of its argument 

fails to establish that the test actually performed by the inspector yielded 

an inaccurate result. At most, it establishes a disagreement amongst experts 

as relates to the proper method of testing brakes. 4/ 

3/ The inspector was instructed at the Mine Safety and Health Academy in 

Beckley, West Virginia, to employ the following technique for inspecting 

brakes on off-the-highway haulage trucks: 

"With engine at low idle ask the operator to make three (3) full foot 

brake applications. Observe the brake pressure gauge, note if pressure drops 

to -0- or in the caution area. (Air is straight air - air over hydraulic). 

This will indicate to the inspector (if) need for further check. Ask the 

operator to make and hold full foot brake application, release park and or 

dump brakes, engage the transmission in 1st. gear, accelerate slowly. If 

machine creeps, note at what speed, low idle, 1/2 - 3/4 or full throttle. 

This will indicate additional check is needed" (Exh. M-5). 

4/ If the Respondent questions the propriety of MSHA approved testing methods or alleges unauthorized testing methods used by MSHA inspectors, then 

the Respondent should bring its concerns to the attention of responsible 

MSHA officials. Neither MSHA nor its inspectors are authorized to inflict 

damage on a mine operator's equipment. 

823 
Accordingly, I conclude that a violation of 30 C.F.R. § 56.9-3 has been 

established by a.preponderance of the evidence. 

C. Negligence of the Operator 

It cannot be determined precisely how long the condition had existed 

based on the information contained in the record. The inspector testified 

that the complainant had alleged that the Euclid haul truck No. 2 had been 

involved in an accident some days or weeks prior to November 7, 1978 (Tr. 

31). However, Mr. John Fowler, the general quarry supervisor, successfully 

rebutted this testimony by establishing that the subject truck had not been 

involved in an accident (Tr. 81). However, the fact that the condition had 

existed long enough to process a miner's complaint indicates that the Respondent should have known of the condition. 

The fact that the defective brakes were not mentioned on the daily 

operator's reports for the 3 days preceding the i~spection (Exh. 0-3) is 

not controlling. The absence of entries in these reports cannot be deemed 

probative evidence of the condition of the brakes. In this regard it is 

significant to note that the truck's inoperative tachometer was not noted 

in the reports (Tr. 88-89) even though a space was provided for reporting 

defective instruments, an omission fatal to acceptance of the reports as 

accurate. 

Accordingly, it is found that the Respondent demonstrated ordinary 

negligence. 

D. Gravity of the Violation 

The truck was in use and contained one occupant (Tr. 32) when it was 

first observed by the inspector. Other haul vehicles, service trucks, and 

graders used the roadway (Tr. 31). The driver of the cited truck and the 

drivers of the other vehicles were exposed to serious injury. 

Accordingly, it is found that the violation was serious. 

E. Good Faith in Attempting Rapid Abatement 

The truck was immediately taken to the repair shop for a brake adjustment (Tr. 69-70). The citation was terminated 3 hours and 5 minutes after 

issuance (Exh. M-3). 

Accordingly, it is found that the Respondent demonstrated good faith in 

attempting rapid abatement. 

F. History of Previous Violations 

The parties stipulated that the Respondent has no history of previous 

violations (Tr. 4, 5, 11). 

824 
G. -Size of the Operator's Business 

The size of-the-Medusa Cement Company is rated at 3,728,274 manhours 

per year. The size of the Clinchfield Mine & Mill is rated at 222,120 manhours per year (Exh. M-1). 

H. Effect of a Civil Penalty on the Operator's Ability to Continue 

in Business 

The parties stipulated that assessment of the $345 civil penalty proposed by the Office .of Assessments will not affect the Respondent's ability 

to remain in business (Tr. 4, 5, 11). Therefore, I find that a penalty otherwise properly assessed in this proceeding will not impair the operator's 

ability to continue in business. 

VI. Conclusions of Law 

1. Medusa Cement Company and its Clinchfield Mine & Mill have been 

subject to the provisions of the 1977 Mine Act at all times relevant to this 

proceeding. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. MSHA inspector Thomas W. Hubbard was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the 

citation which is the subject matter of this proceeding. 

4. The violation charged in Citation No. 96893, November 7, 1978, 

30 C.F.R. § 56.9-3, is found to have occurred as alleged. 

5. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

The parties filed posthearing submissions as set forth in Part I, supra. 

Such submissions, insofar as they can be considered to have contained proposed findings and conclusions, have been considered fully, and except to the 

extent that such findings and conclusions have been expressly or impliedly 

affirmed in this decision, they are rejected on the ground that they are, in 

whole or in part, contrary to the facts and law or because they are immaterial 

to the decision in this case. 

VIII. Penalty Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of a penalty is warranted as follows: 

825 
Citation No. Date 30 C.F.R. Standard Penalty 

96893 56.9-3 $300 

ORDER 

Respondent is ORDERED to pay the civil penalty in the amount of $300 

assessed in this proceeding within 30 days of the date of this decision. 

nF. £f4 

Distribution: 

Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department of Labor, 

1371 Peachtree Street, NE., Room 339, Atlanta, GA 30309 (Certified 

Mail) 

Tom W. Daniel, Esq., Hulbert, Daniel & Lawson, 912 Main Street, P.O. 

Box 89, Perry, GA 31069 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Standard Distribution 

826 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

-OFACE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA), 

v. 

OKLAHOMA CEMENT COMPANY, 

FALLS CHURCH, VIRGINIA 22041 

8 APR 1980 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-146-PM 

A/O No. 34-00028-05001 

No. 2 Quarry & Mill 

DECISION APPROVING SETTLEMENT 

At the hearing set for 10 a.m. on Wednesday, February 27, 1980, in 

Dallas, Texas, counsel for Petitioner appeared and announced that a settlement had been reached. Although the settlement agreement had not been 

signed, Petitioner stated that counsel for Respondent had agreed to the 

settlement and that the settlement agreement was to be read into the 

record with Respondent's acquiescence. The transcript of the settlement 

agreement is, in pertinent part, as follows: 

The matter is styled Ray Marshall, Secretary of Labor, 

u. s. Department of Labor v. Oklahoma Cement Company. 

Come now the parties through their respective representatives and submit the following agreement pursuant to 

Section llO(k) of the Federal Mine Safety and Health Act 

of 1977, 83 STAT 722, 30 USC 801 (et seq.) hereinafter referred 

to as the Act. 

The alleged violations in this case and the settlement 

are identified as follows: 

No. 00166802 dated 4-11-78 alleging a violation of 

30 CFR 56.12-30. The assessed penalty is $84. The settlement disposition is the Respondent withdraws his notice 

of contest thereto. 

Item number 00166803 dated 4-11-78, an alleged violation of 30 CFR 56.12-34 in the assessed value of $78. The 

Respondent withdraws his notice of contest. 

Item number 00166804 dated 4-11-78, an alleged violation of 30 CFR 56.14-1, an assessed penalty of $140. The 

Petitioner withdraws the citation therein. 

827 
Item number 00166085 dated 4-11-78, an alleged violation of. 30 CFR 56.14-1, an assessed penalty of $140. The 

Petitioner ·withdraws the citation therein. 

Paragraph two: Petitioner has reconsidered and reviewed 

the size of the operator, previous history of violations, 

the gravity of the violatons and the good faith and the 

negligence of the operator, all of which factors are set 

forth in the proposed assessment issued to Respondent, which 

citation and proposed assessment will be attached to the 

settlement ~greement and have already been attached to the 

Petitioner's petition. 

Upon such review and consideration, the Petitioner and 

Respondent have agreed to settle this case for a total of 

$162, and to pay in full, withdraw or reduce the citations 

as hereinabove set forth. 

Paragraph three: Respondent has paid the agreed proposed penalty of $162 sought by the Petitioner and, .. therefore, Respondent hereby withdraws the notice. of-contest 

filed in this case. 

Paragraph four: Respondent's consent to an entry of a 

final order of the Commission pursuant to this agreement 

shall not constitute an admission by Respondent of violation 

of the Act or the facts underlying the citation proceeding. 

The Respondent agrees not to assert this settlement as 

a defense in any governmental proceeding brought directly 

under the provisions of the Mine Safety and Health Act. 

Paragraph five: Respondent states that Defendant will 

comply with the Federal Mine Safety and Health Act of 1977, 

30 USC 801 et ~· 

Paragraph six: Respondent certifies that a copy of any 

documents or pleadings required by the Federal Mine Safety 

and Health Review Commission to be posted have been and will 

be posted. 

Paragraph seven: Wherefore, premises considered, the 

parties respectfully request that this settlement agreement 

be approved and that this action be dismissed. 

That, Your Honor, constitutes the entire text of the 

settlement agreement. 

* * * * * * * 

828 

* 
Your Honor, with regard to the settlement agreement, 

perhaps.an allocation of the penalty amounts would be in 

order and w-6-Uld-Oeoeneficial to you as you consider that 

settlement agreement. 

The allocation of the $162 penalty is as follows: 

for Citation No. 00166082, to which citation the Respondent has withdrawn his notice of contest, there is assigned 

a penalty of $84. 

To Citation 00166083, to which Respondent has withdrawn 

his notice of contest, there is an assessed penalty of $78. 

Those two figures together will total the $162 figure. 

To Citation No. 00166084, there was an asserted penalty 

of $140. To that violation the Petitioner has withdrawn 

his citation and, hence, withdrawn the penalty assessment as 

well. 7 

* * * * * * -* * 

When we sat down and discussed settlement, after considering all of our evidence, it was my determination that 

the Secretary of Labor could not prove the violations that 

we have sought to withdraw at this time. 

The other $140 penalty was assessed in Citation 

00166085; inasmuch as the Petitioner also withdrew his 

notice of contest to that--or withdrew the citation in 

that matter, then the penalty also was withdrawn. 

Your Honor, actually what happened was the Respondent 

agreed to pay the full penalty for those items that he was 

withdrawing his notice of contest to, and we agreed to completely withdraw the penalty to those items that we were 

withdrawing. 

Furthermore, the Respondent has asserted and it has 

been confirmed that the violation asserted, not only the 

one that he has withdrawn the notice of contest to, but 

also the ones that we have withdrawn, that all of those 

situations which might have been violations were immediately corrected and abated at the plant site, which we 

believe evidences extreme good faith on the part of that 

operator. 

I might further add in that regard that the two citations that the Petitioner has withdrawn were matters that 

had previously been the subject of an Occupational Safety 

and Health inspection at an earlier time. 

829 
The Occupational Safety and Health people have advised 

the Respondent in this case that the particular situations 

in question were_lla_f~ situations and did not constitute 

a violation Of ·the Occupational Safety and Health Act. 

It was at a time subsequent to that that this plant 

became subject to the Mine Safety and Health Act as opposed 

to OSHA. And at that time they mistakenly believed that the 

same standards would apply. 

We believe again that exhibits their good faith and 

their willingness to immediately correct those situations. 

It suggests that they're very much interested in the safety 

and the health of their employees. 

We further determined that this company is a relatively 

small operator. It's based upon those facts that the settlement has been entered. 

As further support of that settlement, Your Honor, I do 

have certain notes from the mine inspector that I would be 

more than happy to submit for the Court's consideration 

(Exhs. 1 and 2). 

* * * * * * * * 

Your Honor, the records that I have before me reflect 

that there are no prior violations under the Mine Safety 

and Health Act in this matter. 

Now, again, I would remind you--the Commission, that 

this case arose shortly after this particular plant came 

within the jurisdiction of Mine Safety as opposed to 

Occupational Safety and Health. 

* * * * * * * 

The negotiated settlement was approved at the hearing. 

ORDER 

* 

The approval of the negotiated settlement at the hearing is AFFIRMED. 

Respondent is ORDERED to pay the sum of $162 to MSHA within 20 days of the 

date of this decision. 

Forrest E. Stewart 

Administrative Law Judge 

830 
Distribution: 

Thomas M. TomP-kinsr Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Phillip w. Gilbert, Esq., c/o OKC Corporation, P.O. Box 34190, Dallas, 

TX 75234 (Certified Mail) 

831 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUD~ES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

8 APR 1980 

U.S. STEEL CORPORATION, Contests of Citation and Order 

Contestant 

v. Docket No. WEVA 80-54-R 

SECRETARY OF LABOR, Citation No. 657116 

MINE SAFETY AND HEALTH October 3, 1979 

ADMINISTRATION (MSHA), 

Docket No. WEVA 80-55-R 

UNITED MINE WORKERS OF AMERICA, 

Respondents Order No. 657117 

October 4, 1979 

Appearances: 

Before: 

No. 50 Mine 

DECISIONS 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for the 

contestant; 

John H. O'Donnell, Trial Attorney, U.S. Department of Labor, 

Arlington, Virginia, for the respondent. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern contests filed by United States 

Steel Corpora·tion (contestant) challenging the propriety and legality of a 

section 104{a) citation and a 104(b) withdrawal order issued by MSHA Mine 

inspector David L. Pack pursuant to the Federal Mine Safety and Health Act 

of 1977. Respondent filed timely answers in the proceedings, and pursuant 

to notice, a hearing was held in Charleston, West Virginia, on January 8, 

1980, and the parties appeared and participated therein. Posthearing proposed findings and conclusions, with supporting arguments, were filed by the 

parties and I have considered the arguments presented in the course of these 

decisions. 

Issues Presented 

1. Whether the conditions cited in the citation constitute a violation 

of cited standard 30 C.F.R. § 75.400, and if so, is the violation significant 

and substantial as alleged by the inspector? 

832 
2. ··Was the time fixed for abatement of the conditions cited reasonable, 

and if so, was the issuance of the order proper? 

Additional issues raised by the parties are discussed in the course 

of these decisions. 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

effective March 9, 1978, 30 U.S.C. § 801 ~seq. 

2. Section 104(a) of the Act provides as follows: 

If, upon inspection or investigation, the Secretary or 

his authorized representative believes that an operator of a 

coal or other mine subject to this Act has violated this Act, 

or any mandatory health or safety standard, rule, order~ or 

regulation promulgated pursu~nt to this Act, he shall, with 

reasonable promptness, issue a citation to the operator. 

Each citation shall be in writing and shall describe with 

particularity the nature of the violation, including a reference to the provision of the Azt, standard, rule, regulation, 

or order alleged to have been violated. In add;ition,-the 

citation shall fix a reasonable time for the abatement of the 

violation. The requirement for the issuance of a violation 

with reasonable promptness shall not be a jurisdictional 

prerequisite to the enforcement of any provision of this Act. 

3. Section 104(b) of the Act provides as follows: 

If, upon any follow-up inspection of a coal or other 

mine, an authorized representative of the Secretary finds 

(1) that a violation described in a citation issue pursuant 

to subsection (a) has not been totally abated within the 

period of time as originally fixed therein or as subsequently 

extended, and (2) that the period of time for the abatement 

should not be further extended, he shall determine the extent 

of the area affected by the violation and shall promptly 

issue an order requiring the operator of such mine or his 

agent to immediately cause all persons, 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. 

4. Section 104(d) provides in pertinent part as follows: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created 

833 
by such violation do not cause imminent danger, such violation -is of such nature as could significantly and substantially contr-ibut.e- tcrt-he cause and effect of a coal or other 

mine safety or health hazard, and if he finds such violation 

to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he 

shall include such finding in any citation given to the 

operator under this Act. * * * 

Discussion 

Section 104(a) Citation No. 0657116, issued October 3, 1979, citing a 

violation of 30 C.F.R. § 75.400, states as follows: "Float coal dust was 

permitted to accumulate along the South Mains mother belt and crosscuts left 

and right starting at the belt conveyor drive and extending inby the stopping 

No. 69, a distance of approximately 2800 lineal feet." 

The inspector fixed the abatement time as 8 a.m., October 4, 1979. 

Section 104(b) Withdrawal Order No. 0657117, issued at 10 a.m., 

October 4, 1979, states as follows: 

It is the opinion of the writer that not enough effort 

and attention has been given to inerting the float coal dust 

which was permitted to accumulate along the South Mains 

mother belt in that no attention or work had been done (rock 

dusting) from the belt conveyor drive to No. 40 stopping. 

The inspector ordered withdrawal from the South Mains mother belt from 

the belt conveyor drive inby. 

Testimony and Evidence Adduced by *=he Parties 

Respondent's Testimony 

MSHA inspector David L. Pack testified as to his mining background and 

experience, and he described the mine in question as a large bituminous coal 

mine which liberates a great amount of methane gas. The mine employs approximately 650 to 700 miners, has five shafts and 11 sections,-~nd the mining 

height ranges from 42 to 60 inches (Tr. 4-10). He confirmed that he issued 

Citation No. 657116 on October 3, 1979, citing a violation of 30 C.F.R. 

§ 75.400 after walking the area described in the citation and observing that 

90 percent of it was blanketed with float coal dust. He looked into every 

crosscut, and while he did not measure the accumulations, he estimated the 

depth as between a 32nd to a 64th of an inch, and he described the float 

coal as a "thin sheet." He believed the accumulations of float coal came 

from the belt dumping points on the section, and indicated that the float 

coal is put in suspension at these points as the coal is moved and dumped 

from feeder belt to feeder belt. The extent of the accumulations is indicated on the citation as 2,800 lineal feet, and he computed this distance 

834 
by refer_ence to a mine map kept on the surface, and he used a scale of 

100 feet to an .inch and did not actually measure the distance underground. 

The width of th~-ac~umuTations extended from rib to rib in the crosscuts, 

and in.the crosscuts where there were stoppings, the accumulations extended 

from stopping to stopping and rib to rib in the 20-foot entries. The accumulations of float coal dust he observed were black in color, but he did 

observe some rock dust, and he considered the accumulations to be combustible 

material because float coal dust is combustible and highly explosive when 

it is deposited over a large area (Tr. 10-14). 

Inspector Pack testified that he considered the conditions cited to be 

a significant and substantial violation and that he considered all of the 

circumstances which were present in making that finding. He considered the 

area involved, possible ignition sources, the thickness of the accumulations, 

the time that they were left unattended, and the time required for abatement. 

Some of the area within the 2,800 feet was damp in about three locations and 

if the accumulations were confined to those areas the gravity would not be as 

great as the accumulations in dry areas. However, in this case, the accumulations were deposited on all surface areas, such as belt ropes and structures. The equipment in use was nonpermissible, and permissible equipment is 

not required. The belt conveyor motors, transformers, and various electrical 

and power cables would "interrelate" with the float coal dust. Miners pass 

through the area, and one individual walks the belt daily while others may be 

stationed at the belt discharge points. The mine operates three shifts 

a day, 5 days a week, and one shift is a maintenance shift. The area in 

question is not preshifted (Tr. 14-17). 

Inspector Pack stated that he issued the citation at 12:15 p.m., on 

October 3, 1979, and fixed the abatement time as 8 a.m., the next morning. 

In fixing the abatement time, he took into consideration the area involved, 

the availability of rock-dusting materials, the work involved, and the available manpower required to do the job. The respondent has the option of rock 

dusting by hand or machine, and while the mine has a "fantastic rock dust 

machine," the respondent chose to rock dust by hand (Tr. 18) •. 

Inspector Pack testified that float coal dust does not present an ignition problem unless it is suspended in the upper atmosphere from the mine 

floor. He determined that the accumulations did not present an imminent 

danger and he did so on the basis of the fact that the mine is very well kept 

and there is good ventilation which adequately takes care of the liberated 

methane. The area where he found the accumulations in.question is by no 

means typical of the No. 50 Mine. He believed that 20 hours was adequate 

time within which to hand-rock dust the area cited (Tr. 35). Regarding any 

"interrelation" between methane and float coal dust, he indicated that a 

"potentialrr for an explosion existed, but also stated that "[t]his is not to 

say that this is the case here, which it was not." He explained that the 

ventilation was adequate and would reduce any methane present down to "the 

tenths of percent." If an ignition were to occur, it would pick up the 

deposited float coal dust from the surface areas in the entry, and the mine 

has experienced prior ignitions (Tr. 18-21). 

835 
Inspector Pack confirmed that he issued Withdrawal Order No. 657117 on 

October 4, 1979, and that he first issued it verbally to safety inspector 

Grover Roland at "-l-0 a-.m. ,--and later reduced it to writing. He decided to 

issue the order after finding that the rock dusting had not been completed, 

and he was informed by the belt foreman that five men were used to rock dust 

on one shift, and the prior second shift worked four men. The foreman 

advised him that enough men were not available because he had to send some 

of his crew to other mine areas where coal production was taking place. 

Mr. Pack indicated that had the 10 or 12 men who were inby the area on the 

section producing coal been utilized to rock dust to abate the conditions 

cited, he would not have issued the withdrawal order. No explanation was 

offered as to why the men had to be sent to another mine area and he did not 

ask. Approximately half of the cited area had been rock dusted at the time 

he issued the order, and he observed four men working on abatement. There 

was no doubt in his mind that the area cited could have been rock dusted and 

abatement achieved within the time fixed (Tr. 22-25). Abatement was finally 

achieved by 1:30 p.m., and he remained on the scene while abatement was going 

on (Tr. 26). Although the men were sent to another mine area to produce 

coal, when the general mine foreman heard about the withdrawal order, he 

promptly sent them back to work on abating the cited conditions, and 

10 to 12 men were put to work on the abatement (Tr. 27_)_~ 

Inspector Pack described the procedures used for hand-dusting the mine. 

Bags of rock dust are unloaded at the mandoor stoppings adjacent to the belt 

entry, hand-carried into the belt entry, and then transported on the belt to 

the areas where needed and off-loaded at those points (Tr. 28). He did not 

believe that using nine men over two shifts to achieve abatement was an 

adequate effort to abate the accumulations, particularly when coal was being 

mined-at the time the order issued. Mine management offered no explanation 

as to why abatement had not been achieved earlier and no one protested the 

time fixed for abatement (Tr. 29-30). The area cited was not an active 

working section, but it was an "active workings" (Tr. 31). 

On cross-examination, Inspector Pack confirmed that mine management is 

usually very cooperative in abating citations. He observed that rock dusting had been accomplished in the areas in the past and that in all probability this had been done many times. However, he had no idea when it was 

last rock dusted prior to his inspection. The cited area was clean of any 

loose coal and all that was required was the rock dusting ~n order to cover 

the blanket of float coal dust. He confirmed that he used a map located 

on the surface and a scale on the map to determine the extent of the area 

cited, but he had no idea how many stoppings or crosscuts were involved, 

but he did walk the area from the drive pulley to the other end. He indicated that there were approximately·60 to 70 crosscuts in the area cited, 

and that when he fixed the abatement time he took into consideration these 

crosscut areas (Tr. 31-35). 

Inspector Pack indicated that while the area cited was not a "high 

risk" area, he nonetheless considered the violation to be "significant and 

substantial" because the layer of float coal dust presented a potential for 

836 
it to become suspended and ignition sources were present. In addition, he 

considered the 4:act--tha-t the accumulations were there for some time because 

they were black, but he had no way of determining precisely how long the 

accumulations were present. Regarding the prior ignition, it was not in the 

area which he cited., but rather, in the face area and no one was hurt. 

Further, he was not aware of any of the details of other mine ignitions, and 

indicated there were "not many." In addition to the citation in question, 

he also issued another float coal dust citation covering another area inby 

the South Mains section belt conveyor drive (Tr. 36-40). 

Inspector Pack-stated that 50-pound bags of rock dust are stored in a 

surface supply area and transported into the mine on flat cars, and he 

described the procedures for making it available on the section. At the 

time the citation issued, he did not go to all 11 sections of the mine, had 

no idea of any operational problems, did not know whether the rock-dusting 

machine was operative, and he did not ask. He contemplated that rock dusting 

would be achieved by hand rather than by the machine (Tr. 40-43). He walked 

to the point where rock dusting had begun from the No. 69 stopping before 

issuing his order and a closure sign was hung at the belt conveyor drive. 

He did not walk the entire belt length from the drive to-the tailpiece before 

issuing the closure order (Tr. 46-47). Less than half of the belt had been 

dusted, and he spoke with Belt Foreman Bishop and Mr. Roland about the situation. Mr. Pack did not know whether coal had been produced on the second 

shift, but speculated that it was. The third shift was a maintenance shift, 

and his concern was over the fact that the first shift at 8 a.m., on 

October 4, was used for production rather than rock dusting (Tr. 50-51). 

On redirect, Inspector Pack testified that the belts in the areas cited 

were equipped with water sprays and that the sprays are intended to keep the 

dust down. The float coal dust was present on the surface areas of the belt 

components, and the normal procedure in the mine to take care of the problem 

is to rock dust. He estimated it would take four persons 15 to 16 hours to 

rock dust 2,800 feet (Tr. 53). 

In response to bench questions, Inspector Pack testified that while he 

could have cited the same belt for insufficient rock dusting, he did not do 

so because he could not accurately sample float coal dust. He determined the 

existence of float coal dust by picking it up and observing the air currents 

carrying it away, and when he brushed it, it was placed in suspension. He 

indicated that he walked the entire 2,800 feet of belt before issuing the 

citation and his observations concerning the existence of float coal dust 

indicated a consistent black area along the entire 2,800 feet. Mr. Roland 

was with him and expressed no disagreement with his observations. Mr. Pack 

made one methane check at the belt conveyor drive and it was less than 

one-tenth of 1 percent. Under the mine cleanup plan, the areas in question 

are cleaned on an "as needed" basis, but the belt must be walked every shift 

by a belt examiner who must record his observations, including violations, 

in a book kept on the surface. He did not review the books before citing 

the conditions on October 3. Although Mr. Roland expressed surprise at the 

extent of the accumulations of float coal dust, he offered no explanation. 

837 
Mr. Pack did not know for a fact that coal had been produced for the two production shifts subsequent to the issuance of the citation, and since 

Mr. Roland expressed-no-d~sagreement with the time that he fixed for abatement, he assumed that the time was sufficient. Prior to issuing the order, 

he was told that some of the men were doing other work and he concluded 

that management was not putting enough effort into abating the conditions, 

but once the order issued they did, and the order "increased the movement" 

in this regard. None of the float coal dust was heavy enough to sample with 

a sieve, and he speculated that the accumulations were caused by an inoperative belt spray system which may have been down for some time. However, he 

checked the water sprays and since he found them working properly, he could 

only speculate that they were down and th~n repaired. He confirmed that the 

accumulations he found were unusual and that the mine does not normally have 

float coal dust problems (Tr. 54-73). 

Contestant's Testimony 

Grover C. Roland, health and safety engineer, U.S. Steel Corporation, 

testified that he accompanied Inspector Pack during his inspection on 

October 3, and he identified a mine map and indicated thereon the area 

inspected on that day (Exh. A-1). He indicated that he walked the entire 

area, which included the mother belt at the South Mains section, and the 

South Mains section belt. The distance between the mother belt drive at the 

No. 7 stopping and the tail pulley at the No. 72 stopping, as shown on the 

map is 5,800 feet. At the time the citation issued on October 3, the belt 

was not running because the belt conveyor mother belt bull gear was being 

repaired. After the citation issued, the section crew began dusting on the 

South Mains section belt, and the fact that the belt was down for repairs 

affected the transportation of rock dust since it would have to be handcarried down the belt from the No. 7 stopping, but if it were brought in at 

the No. 72 stopping, it could be transported by the belt. The first shift 

after the citation issued rock dusted about 550 feet of the South Mains belt 

and nothing was done to bring rock dust to the area during that shift. On 

the second shift, it took 5 hours to repair the bull gear, and after the 

belt was able to run, eight men were assigned to the belt; four for rock 

dusting, two carrying rock dust, and two were delivering the rock dust to 

the section or the belt. Four flats of rock dust, or approximately 

1,920 bags of rock dust, were delivered to the section (Tr. 75-80). 

On voir dire, Mr. Roland indicated that he was not present during the 

abatement efforts on the first two shifts after the citation issued, but that 

the belt foreman advised him of these efforts and he is required to document 

those efforts in the belt book. He did, however, go back to the area with 

Inspector Pack after he returned and before he issued his order on October 4, 

and he observed the area which had been rock dusted (Tr. 80-82). 

Mr. Roland indicated that the citation was issued halfway into the 

first shift on October 3, and since men were working on the belt it would not 

have been practical to reassign them to abatement work since not very much 

could be done before the rock dust was actually delivered to the area. The 

838 
second shift had rock dusted from the No. 73 stopping to the No. 59 stopping. 

The third shift had_~ey~n. men-working, and three additional men were sent 

in to help distribute some of the rock dust. One of them got sick and left 

the section, and the other two were called out to repair another belt. The 

third shift dusted from stopping No. 59 to stopping No. 40. During the 

first shift on October 4, four men were in the general area rock dusting, 

and two more were reportedly coming to the section. He confirmed the fact 

that Inspector Pack had spoken with Shift Foreman Rose about the situation 

at the South Mains mother belt on October 4. Mr. Pack subsequently informed 

him that he was shutting the belt down because not enough work had been done 

to abate the conditions cited, and Mr. Pack discussed the matter underground 

with the belt foreman and the mine superintendent (Tr. 83-86). 

Mr. Roland reiterated that the belt distance from the conveyor to the 

junction point is 5,800 feet, but that Mr. Pack did not mention the fact 

that he had underestimated the belt distance. Mr. Roland testified further 

that he went back to the area on October 4 and took three dust samples from 

the mine floor, and the samples were taken before the area was rock dusted. 

He sent them to the laboratory for analysis and the results indicated the 

incombustible amount of rock dust materials present and the_:moisture content. 

The test results indicated 80 percent incombustibility berore the area was 

re-rock dusted (Exh. A-2; Tr. 89-90). At the time the citation issued, 

Mr. Roland did not believe the conditions cited presented a high probability 

of serious injuries, and he did not recall that the inspector made any 

inquiry as to what method would be used to rock dust. The rock-dusting 

machine could not have been used on October 3 or 4, because it was down for 

maintenance (Tr. 91). In addition to the 5,800 feet of belt line required 

to be rock dusted, an additional 3,780 feet of crosscuts had to be covered, 

and this made a total of 9,580 feet of area that required to be rock dusted 

in order to achieve abatement (Tr. 92). 

On cross-examination, Mr. Roland testified that on previous occasions 

when citations were issued to him by Mr. Pack, they discussed the amount of 

time required to achieved abatement. Although he knew at the time the citation in question was issued that the belt bull gear was .down for maintenance 

and needed to be replaced, he did not discuss that fact with Mr. Pack, even 

after Mr. Pack fixed the abatement time as 8 a.m., the next morning. 

Mr. Roland indicated further that he believed the abatement ~ime initially 

fixed by Mr. Pack was adequate and that abatement could have been achieved 

within that time frame. In explanation as to why only 50 percent of the 

area had been rock dusted when Mr. Pack returned on October 4, when it only 

took 3-1/2 hours to complete the remaining 50 percent, Mr. Roland stated that 

it took some time to deliver the rock dust during the second and third shifts, 

and additional help was obtained from the day shift to complete the rock 

dusting (Tr. 94). 

Mr. Roland testified that he observed the area described by Inspector 

Pack as "black," could offer no explanation as to why it was black, and indicated that this was not a common occurrence. He indicated further that he 

made no inquiries as to what caused the black conditions on the belt, and 

839 
he did not know when the area had been previously rock dusted (Tr. 94, 97). 

He was not aware of any written rock-dusting program for the cited belt 

areas, and the replacement-of a belt bull gear is not a common occurrence 

(Tr. 98). He indicated that rock dust is transported to the belt areas in 

question by track-mounted flatcars and then hand-carried to the belt itself 

for a distance of some 90 feet through the stoppings. Scoops cannot be used 

to transport the rock dust because the area is confined and the belts are 

isolated, and he is not aware of any other equipment which could be used 

to transport the rock dust to the area (Tr. 99-100). Although there is 

methane in the mine, the ventilation is maintained so that there is no 

methane problem (Tr . .100). 

Mr. Roland stated that it was his opinion that Inspector Pack should not 

have issued a withdrawal order because men were working to achieve abatement 

during the second and third shifts subsequent to the issuance of the citation, and during the first shift the next day. He confirmed the fact that he 

said nothing to Mr. Pack about the belt being down on October 3, nor did he 

discuss the matter with him when he verbally advised him that he was issuing 

the order. Mr. Roland admitted that he was surprised that more work had not 

been done to achieve abatement prior to the issuance of the order (Tr. 101-

102). 

In response to bench questions, Mr. Roland stated that he could not 

explain why the inspector indicated on the citation that the distance 

required to be rock dusted was 2,800, when in fact it was 5,800 feet, and 

he did not ask the inspector about it. He also testified that he and the 

inspector walked the entire distance described in the citation, from the belt 

conveyor drive inby to stopping No. 69, and he did not dispute the inspector's findings with respect to the existence of the float coal dust as 

described in the citation (Tr. 108-109). At the time the citation issued, 

the belt was down, and it was down during the subsequent shift (Tr. 110). 

The other dust citation for the section belt was issued during the same 

inspection, and work was begun to abate that citation first, and then continued to abate the citation at issue here (Tr. 112). He could offer no 

explanation as to how such an extensive area could accumulate so much float 

coal dust without being detected earlier (Tr. 114). 

John Bodner, general mine foreman, testified that he first learned about 

the order being issued by Mr. Pack while conducting a safety meeting on the 

mine surface on October 4. He left the meeting, and accompanied by the mine 

superintendent and the belt foreman, they proceeded to the area underground. 

While walking the area, he stirred up the mine dust on the floor and observed 

rock dust as well as the "blackness." He did not consider the area to be a 

"high probability of serious injury." He observed mine personnel rock dusting, met Mr. Pack at the No. 73 stopping, and discussed the situation with 

him, and the belt did not move while he was there (Tr. 115-119). 

On cross-examination, Mr. Bodner stated that he discussed the fact that 

there was dampness in the area, including a water hole along the belt line, 

and that he advised Mr. Pack that he did not believe the conditions were 

840 
"that bad," but that Mr. Pack had already made up his mind to issue the order 

(Tr. 120). Although conceding that there were quite a few black spots, 

Mr. Bodner stated t-her-e--wa~r at so "a lot of white showing" (Tr. 121). 

In response to bench questions, Mr. Bodner stated that the conversation 

with Mr. Pack underground took place after he had closed the belt down, and 

that he (Bodner) was aware of the fact that Mr. Pack had issued the citation 

the day before, but did not discuss the citation with him (Tr. 124-125). 

Mr. Bodner indicated further that he was not aware of the belt bull gear 

problem until the day the order issued, and he conceded that on prior 

occasions Inspector Pack has extended the time for abatement of citations 

he has issued (Tr. 126). 

Inspector Pack was called in rebuttal, and he explained the circumstances surrounding the calculations he made to determine the belt distances 

described in his citation. He indicated that he calculated the distances 

from a mine map on file in the mine safety department and apparently used a 

scale of 1 inch-to-100 feet when in fact the scale is 1 inch-to-200 feet, 

and he conceded that he had made a mistake when he described the affected 

area as 2,800 feet (Tr. 128). In view of the fact that mine management was 

aware of the belt area in question and had walked the distances with him, he 

believed that the increased actual distance of 5,800 made no difference in 

terms of the time fixed by him for abatement of the conditions cited. He 

would still have fixed the time for abatement as 8 a.m., the next morning 

since he believed that was ample time to abate, and on previous occasions, 

mine management always abated conditions cited by him within the time fixed 

(Tr. 129). He first learned that the belt was down by observation at the 

time the closure sign was hung on the belt line. At that time, he did 

observe two or three people working on it, and the fact that the belt was 

down would not influence him in giving additional time to abate because he 

believed that the rock dust could be dropped off at places parallel to the 

mandoors and carried through to the belt entry. There was no doubt in his 

mind that abatement could have been achieved within the time fixed if enough 

men had been assigned to the abatement work (Tr. 129-131). He confirmed the 

conversation with Mr. Bodner and refused to rewalk the area with him as 

requested by Mr. Bodner because he had already walked it once or twice (Tr. 

132). 

On cross-examination, Mr. Pack confirmed that using the belt would make 

it easier to distribute the rock-dust bags and affect the time required to 

finish the abatement job, but he had no idea how much longer it would take 

to hand-carry the rock dust to the belt areas. He believed that mine management did it the best and easiest way available (Tr. 134). 

In response to bench questions, Mr. Pack stated that he believed 12 men 

working on the belts could have achieved abatement within the time fixed by 

him, and this was true even if the belt were down during the entire abatement 

process. He indicated further that he was very familiar with the area in 

question and had traveled it many times, and in his judgment abatement could 

have been achieved within the time given if the men who were assigned at the 

841 
face producing coal had been assigned to abate the conditions (Tr. 139, 141). 

Similar mine areas have been cited by him for float coal dust violations and 

the same amount o-f- time' was-given for abatement, and abatement was achieved 

within that time (Tr. 143). However, these prior incidents did not influence 

him in fixing the abatement time in question and he fixed the time after considering all of the circumstances presented (Tr. 143). In the final analysis, 

he issued the order because he did not feel that enough people were assigned 

to abate the conditions cited (Tr. 145). 

Findings and Conclusions 

Fact of Violation--104(a) Citation No. 0657116, October 3, 1979, 30 C.F.R. 

§ 75.400 

Cit~tion No. 0657116 charges the contestant with a violation of the 

provisions of 30 C.F.R. § 75.400, for an accumulation of float coal dust 

along the underground South Mains mother belt. The extent of the accumulations is described on the face of the citation and the inspector testified 

as to the conditions he found at the time the citation issued. Although the 

inspector miscalculated the distances involved when he apparently used the 

wrong map scale, the fact remains that both he and conte?St-ant' s Safety 

Engineer Roland both walked the entire area in questio~ and contestant had 

fair notice as to the area which concerned the inspector. Under the circumstances, I conclude that the fact that the inspector misstated the extent of 

the accumulations in terms of distances on the face of the citation, does not 

render the citation void. 

With regard to the existence of the float coal dust as cited and 

described by the inspector, I find that the evidence and testimony adduced in 

these proceedings establishes the existence of the float coal dust as found 

by the inspector, and contestant's evidence does not rebut this fact. As a 

matter of fact, Mr. Roland conceded the presence of the float coal dust and 

could offer no explanation for it. Mine Foreman Bodner also confirmed the 

observations of the inspector with respect to the "blackness" of the area 

cited, and his observation that it "was not that bad," is in itself to some 

extent an admission of the existence of the conditions cited. The fact that 

Mr. Bodner may have observed some patches of rock dust showing through the 

black, thin layer of float coal dust deposited on top of the rock dust, and 

the fact that he may have observed some wet areas, does not in my view rebut 

the overwhelming evidence as to the existence of the float coal dust as 

described by the inspector. I find that the inspector adequately described 

the accumulations of black, "thin sheet" of combustible float coal dust 

deposited in the areas described by him in the citation and during his testimony, that the accumulations were present in active workings, and I conclude 

that MSHA has established a violation of section 75.400 as charged. The 

citation is AFFIRMED. 

Significant and Substantial 

On January 29, 1980, I decided five cases in which I made findings and 

conclusions concerning the application of the "significant and substantial" 

842 
violation prov1s1on found in section 104(d) of the 1977 Act, and I refer the 

parties to those prior decisions for my interpretation of that section, 

Sunbeam Coal Corporation v. ~SHA, Dockets PITT 79-210 through 79-214, decided 

January 29, 1980. Further, I incorporate by reference my prior conclusions 

as to the meaning and application of the term "significant and substantial" 

as my conclusions in the instant proceedings, and attached hereto and incorporated by reference herein are copies of pages 21-24 of my decision in 

Sunbeam, wherein I discuss my conclusion as to the construction and application of that term. 

In the instant proceedings, the parties have not submitted any detailed 

arguments concerning the statutory application and interpretation of the term 

"significant and substantial," but merely cite the testimony by the inspector 

to support his conclusion that the violation was in fact a significant and 

substantial one. Contestant merely sets out proposed findings of fact based 

on references to the transcript of the testimony presented, and MSHA does 

elaborate somewhat in its discussion of the possible ignition sources, the 

extent of the float coal accumulations found by the inspector, the length of 

time the accumulations had been unattended, and the time required for abatement (pp. 6-8, MSHA posthearing brief, filed February 21, 1980). Based on 

these factors, MSHA concludes that the violation was signi-ficant and substanial. After careful review and consideration of the arguments presented, 

I agree with MSHA's proposed findings and conclusions on this issue and find 

that the violation cited was significant and substantial, and my reasons for 

reaching this conclusion follow. 

Following the court decision in International Union, United Mine Workers 

of America (UMWA) v. Kleppe, 532 F.2d 1403 (1976), ~·denied, sub~· 

Bituminous Coal Operators' Association, Inc. v. Kleppe, 429 U.S. 858 (1976), 

and the decision in Alabama By-Products Corporation, 7 IBMA 85 (1976), I 

conclude and find that practically all or most violations occurring at a 

mine are of a "nature as could significantly and substantially contribute 

to the cause and effect of a mine safety or health hazard," except in the 

following two categories: 

1. Those violations which pose no risk of injury at 

all, such as the so-called "purely technical violations"; 

and 

2. Those violations which pose a source of injury which 

has only a remote or speculative change of happening. 

For the reasons set out at pages 6 through 8 of MSHA's posthearing 

brief, which I accept and adopt as my findings and conclusions, I find that 

the violation in question was not technical. To the contrary, I find that 

the extent of the accumulations of float coal dust in the active workings 

of the mine where production is going on and along a belt line where coal 

is being transported and men are present, presents a serious hazard to the 

safety and health of the miners in the area cited. I am not persuaded by 

843 
the fact tbat the belt may have been down for repairs at the time the citation issued. On the facts presented in these proceedings, coal production 

was going on in the face ar~~s, and apparently resumed once the repairs to 

the belt bull gear were completed. However, abatement had not been totally 

achieved at that point in time, and potential ignition sources were present 

in the areas where the float coal dust was deposited on the belt structure 

itself, as well as in the other areas described. 

Citation No. 0657117, 104(b) Withdrawal Order, Issued October 4, 1979 

Upon issuance of the citation at approximately 12 p.m., on October 3, 

1979, the inspector fixed the abatement time as 8 a.m., the following morning. Upon his return to the mine on October 4, at approximately 10 a.m., 

he found that only approximately half the area cited by him had been rock 

dusted. Since he·believed that abatement could have been achieved within 

the 20-hour period initial fixed for this, he issued his withdrawal order. 

Once issued, mine management assigned additional men to the abatement, and 

the remaining area initially cited was rock dusted, and complete abatement 

was finally achieved by approximately 1:30 p.m., on October 4. In short, 

it seems obvious to me that the inspector believed that mine management 

could have abated the citation within the 20-hour period _initially fixed 

for this task, but mine management apparently decided b)- utilize part of 

the work crew for other chores. However, once the closure order issued, 

mine management reassigned the crew to abatement duties and the area cited 

was ultimately rock dusted and the order abated. 

Contestant takes the position that the extent of the area cited by the 

inspector, coupled with the fact that the crew on duty were either needed 

elsewhere to perform routine maintenance chores, precluded the completion 

of the abatement, and that since abatement was in progress when the inspector arrived on the .scene on the morning of October 4, it was arbitrary for 

him to issue a closure order. This defense is rejected. I find that in 

the circumstances presented, the inspector acted reasonably in finding that 

mine management was less than diligent in achieving abatement. Taking into 

consideration the logistical problems involved in transporting the rock dust 

to the area cited, I believe that the record supports a finding that abatement could have been achieved within the 20-hour period fixed by the inspector. Once the order issued, the crew which was present on the section was 

taken off its assigned other duties and concentrated on abatement. Within 

3 hours or so, the remaining area was rock dusted to the inspector's satisfaction and the order was terminated. Had these people been initially 

assigned to abatement duties, rather than to routine additional duties, I 

am convinced that abatement would have been accomplished in a timely fashion 

and the order probably would not have been issued. Further, after listening 

to the testimony of Mr. Roland ·and viewing him on the stand, I was impres.sed 

with his candor and honesty, particularly with respect to his candid admission that he too was surprised that more work was not done to complete the 

rock dusting at the time the inspector returned to the area the day after 

the citation issued. Coupled with his opinion that abatement could have 

been achieved within the time frame initially fixed by the inspector, I can 

844 
only conclude that the inspector acted reasonably in the circumstances when 

he issued the clqsure order. 

With regard to the question of whether the inspector acted unreasonably 

or arbitrarily by not extending the abatement time further, as correctly 

pointed out by MSHA's counsel at pages 17-20 of his posthearing brief, this 

issue was never raised by the contestant, and its posthearing arguments do 

not specifically address this question. However, on the basis of the record 

adduced in these proceedings, and considering the fact that I have concluded 

that the inspector fixed a reasonable time for abatement of the cited conditions, I find and conclude further that his failure to further extend the 

abatement time was not arbitrary or unreasonable. Under the circumstances, 

I conclude and find that the issuance of the order was proper and reasonable 

and it is AFFIRMED. 

ORDER 

In view of the foregoing findings and conclusions, Citation No. 067116, 

issued on October 3, 1979, and Citation No. 067117, issued on October 4, 

1979, are AFFIRMED, and contestant's request for any relief with respect 

to the citation and order are DENIED, and the contests are DISMISSED. 

Attachment 

Distribution: 

~c~ George A. Koutras 

Administrative Law Judge 

Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant Street, 

Pittsburgh, PA 15230 (Certified Mail) 

John O'Donnell, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Standard Distribution 

845 
ATTACHMENT TO WEVA 80-54-R/WEVA 80-55-R DECISIONS DATED 4/8/80 

FEDERAL-Ml,NE- SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Cl'.3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

January 29, 1980 

SUNBEAM COAL CORPORATION, 

Contestant 

Contests of Citations 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. PITT 79-210 

Citation No. 229432 

February 22, 1979 

Docket No. PITT 79~211 

Citation No. 2294J3 

February 22, 1979 

Docket No. PITT 79-212 

Citation No. 229434 

February 22, 1979 

Docket No. PITT 79-213 

Citation No. 229362 

February 22, 1979 

Docket No. PITT 79-214 

Citation No. 229363 

February 22, 1979 

Sunbeam Mine 

DECISIONS 

Appearances: Bruno A. Muscatello, Esquire, Butler, Pennsylvania, 

for the contestant; 

Eddie Jenkins, Esquire, Arlington, Virginia, for the 

respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern notices of contests filed by the contestant 

(Sunbeam) on March 21, 1979, pursuant to section 105 of the Federal Mine 

846 
Significant and Substantial 

Tue "signifi-eant--ancr-s-ubstantial" provision found in section 104(d) of 

the 1977 Act is identical to that found in section 104(c) of the 1969 Act. 

In interpreting the meaning of this provision under the 1969 Act, the former 

Interior Board of Mine Operations Appeals in Eastern Associated Coal Corporation, 3 IBHA 331 (1974), took a rather restrictive view of the test of "significant and substantial" when it held that a violation could significantly 

and substantially contribute to the cause and effect of a mine safety or 

health hazard if the evidence shows that the condition or practice cited 

as a violation posed a probable risk of serious bodily harm or death, 

3 IBMA 355. The Board noted that "if we thought that the hazard in question had only a speculative possibility of occurring, we would of course 

conclude otherwise." (Emphasis added.) 

In Zeigler Coal Company, 4 IB.MA 139 (1975), the Board reexamined its 

prior interpretation of the term "significant and substantial" and characterized it as a "phrase of art," 4 IBMA 154; and at 4 IBMA 156 stated as 

fol lows: 

If we were to give each of the words of that_ ~1ause an 

ordinary meaning, it would become a superfluous truism; by 

definition, the violation of any mandatory standard could 

significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. However, since it 

is plain that the Congress intended by these words to enact 

one of several discriminating criteria designed to separate 

those violations that merit 104(c) treatment from those that 

do not, such a literal interpretation would be squarely at 

odds with the apparent congressional intent. Such interpretation would render the phrase nugatory when the Board is 

obliged under the usual norms of statutory construction to 

give meaning to all the terms of a statute. Sutherland, 

Statutes and Statutory Construction, § 46.06 (4th ed. 1973). 

Commenting on its prior Eastern Associated Coal Corporation decision, 

the Board stated further at 4 IBMA 160, 161: 

Against this background and in order to give effect to 

all the statutory terms, we held and still believe that the 

clause "* * * could significantly and substantially contribute to the cause and effect of a mine safety or health 

hazard * * *" is a phrase of art. The key word of that 

clause is "hazard" which in our view refers not to just any 

violation, but rather to violations posing a risk of serious 

bodily harm or death. The part of the clause which reads 

"* * * could significantly and substantially contribute to 

the cause and effect * * *" states a probability requirement, 

designed in our opinion, to prevent application of section 

104(c) to largely speculative "hazards." 

847 
In Alabama By-Products Corporation, 6 IBMA 168 (1976), the Board 

affirmed a judge's decision vacating two section 104(c)(l) withdrawal orders 

issued pursuant r-o tlfe 19"61r Act. The judge held that the underlying notice 

was improperly issued because the violation cited did not pose a "probable 

risk of serious bodily harm or death" and therefore did not meet the "significant and substantial" test previously laid down in Eastern and Zeigler. 

In affirming the judge's decision, the Board rejected the UMWA arguments 

that the definition of "significantly and substantially" should be given 

its ordinary meaning which ne·eds no definition and that the Board's construction of the term only deters the violation of a few of the mandatory 

health and safety standards while the UMWA's "ordinary meaning" construction of the term would deter violations of many more mandatory standards. 

In Alabama By-Products Corporation, 7 IBMA 85, November 23, 1976, the 

Board reconsidered its prior determinations and construction of the term 

"significant and substantial," and it did so on the basis of the D.C. 

Circuit Court of Appeals' decision in International Union, United Mine 

Workers of America (UMWA) v. Kleppe, 532 F.2d 1403 (1976), cert. denied, 

sub nom. Bituminous Coal Operators' Association, Inc. v. Kl~, 429 U.S. 

858 (1976), reversing Zeigler Coal Company, supra, and holding that there 

was no implied gravity prerequisite for the issuance of a section 104(c)(l) 

withdrawal order. Noting the asserted narrowness of the court's holding 

and its silence on the Board's construction of "significant and substantial," the Board nevertheless held that the court's opinion had broader 

implications and compelled a change in the Board's prior construction, and 

it stated as follows at 7 IBMA 92: 

The reason that the appellate court's holding and supporting reasoning is important here is quite simply that our 

construction of the "significant and substantial" language 

in section 104(c)(l) was the product of virtually the same 

reasoning that the Court rejected in reversing Zeigler. When 

we construed that language to mean "probable risk of serious 

bodily harm or death," we disregarded the plain semantical 

meaning of that phrase in favor of a more restrictive reading 

of the statutory words which fitted in with our overall concept of the enforceme~t scheme. The emphasis of the D.C. 

Circuit on literalism which promotes wider operator liability 

and its rejection of our holding and the underlying reasoning 

in support thereof have undermined the "probable risk" test 

completely. An honest reading of the Court's opinion thus 

compels us to overrule Eastern Associated Coal Corp. * * *, 

and Zeigler Coal Company, * * * insofar as they validate 

the "probable risk" test. [Footnote omitted.] 

The Board's reconstructed interpretation of the term "significant and 

substantial," as enunciated in its second Alabama By-Products' decision, is 

set forth at 7 IBMA 94 as follows: 

Section 104(c)(l), it should be recalled, mandates the 

issuance of a notice when an inspector finds that "* * * a 

848 
violat-ion is of such nature as could significantly and substantially contribute_t~_the cause and effect of a mine 

safety or health-ha~ard * * *·" Our position now is that 

these words, when applied with due regard to their literal 

meanings, appear to bar issuance of notices under section 

104(c)(l) in two categories of violations, namely, violations posing no risk of injury at all, that is to say, 

purely technical violations, and violations posing a source 

of any injury which has only a remote or speculative chance 

of coming to fruition. A corollary of this proposition is 

that a notice of violation may be issued under section 

104(c)(l) without regard for the seriousness or gravity of 

the injury likely _to result from the hazard posed by the 

violation, that is, an inspector need not find a risk of 

serious bodily harm, let alone of death. [Emphasis in 

original.] 

Commenting on the enforcement ramifications of its new interpretation, 

the Board stated as follows at 7 IBMA 95: 

The inspector's judgment as to whether a given--violation 

is "* * * of such nature as could significantly and substantially contribute to the cause and effect of a mine safety 

or health hazard * * *" must be reasonable. The reasonableness of such a judgment is dependent upon the peculiar facts 

and circumstances of each case, and it is up to an Administrative Law Judge initially. and the Board ultimately, to 

determl.ne whether an inspector was reasonable in so finding 

in any given case. 

We recognize that our interpretation today means that 

federal coal mine inspectors have a very wide area of discretion to issue section 104(c) notices with all the attendant 

liability to summary withdrawal orders which necessarily 

follows upon even the most trivial of violations after issuance of such a notice. However, with the present controversy 

is viewed in the reflected light cast by the D.C. Circuit on 

section 104(c) in UMWA v. Kleppe, supra, no other conc1usion 

can sensibly be drawn. 

Con~Jdering_the foregoing judicial evolution of the construction of the 

term "significant and substantial," I conclude and find that practically all 

or most violations occurring at a mine are of a "nature as could significantly and substantially contribute to the cause and effect of a mine 

safety or health hazard," except in two categories: 

1. Those violations which pose no risk of injury at all, such as the 

so-called "purely technical violations"; and 

2. Those violations which pose a source of injury which has only a 

remote or speculative chance of happening. 

849 
Further, it also seems clear that the term can apply to a violation 

without regard to the s~i._~usness ,or gravity of any injury for which the 

violation poses a r1sk of occurrence' that is' there need not be a finding 

that the violation poses a risk o~ serious bodily injury or death for the 

term to apply. 

The present construction of the term "significant and substantial" as 

it evolved in the aforementioned cases is favorably reflected in the legislative history of the 1977 Act as follows: 

The Interior Board of Mine Operations Appeals has until 

recently taken an unnecessarily and improperly strict view 

of the "gravity test" and has required that the violation be 

so serious as to very closely approach a situation of "imminent danger", Eastern Associated Coal Corporation, j IBMA 

331 (1974). 

The Committee notes with approval that the Board of 

Mine Operations Appeals has. reinterpreted the "significant 

and substantial" language in Alabama By-Products Corp._, 

7 IBMA 85, and ruled that only notices for purely-technical 

violations could not be issued under Sec. 104(c)(l). 

The Board there held that "an inspector need not find a 

risk of serious bodily harm, let alone death" in order to 

issue a notice under Section 104(c)(l). 

The Board's holding in Alabama By-Products Corporation 

is consistent with the Committee's intention that the unwarranted failure citation is appropriately used for all violations, whether or not they create a hazard which poses a 

danger to miners as long as they are not of a purely technical nature. The Committee assumes, however, that whe·n 

"technical" violations do pose a health or safety danger to 

miners, and are the result of an "unwarranted failure" the 

unwarranted failure notice will be issued. 

S. Rep. No. 181, 95th Cong., 1st Sess., 31 (1977). 

Docket No. PITT 79-210 

Citation No. 229432, 30 CFR 77.1607(cc) 

30 CFR 77.1607(cc) states as follows: "Unguarded conveyors with walkways shall be equipped with emergency stop devices or cords along their full 

length." 

The citation issued in this case charges that the No. 1 wash belt was 

not provided with emergency stop-devices or cords along the belt walkway. 

The inspector testified that he issued the citation because the cqnveyor 

850 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

-orncE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

J 8 APR 1980 

SECRETARY OF LABOR, · 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Civil Penalty Proceedings 

Docket No. DENV 79-575-PM 

Petitioner A.O. No. 41-02733-05003 F 

v. 

HELDENFELS BROTHERS, INC., 

Respondent 

Docket No. DENV 79-576-PM 

A.O. No. 41-02733-05004 

Appearances: 

Before: 

Felder Uranium Operation 

DECISION 

Robert A. Fitz, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for Petitioner; 

H. C. Heldenfels, Jr., Esq., Corpus Christi, Texas, 

fqr Respondent. 

Judge Stewart 

Procedural Background 

The above-captioned cases are civil penalty proceedings brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 820(a), hereinafter referred to as the Act. 

On July 2, 1979, Petitioner filed with the Mine Safety and Health 

Review Commission petitions for assessment of civil penalty in these cases. 

Respondent filed its answers to these petitions on July 26, 1979. The 

hearing in these matters was held on September 14 and 15, 1979, in 

Corpus Christi, Texas. 

Before the conclusion of the hearing, the parties were informed of their 

right to submit proposed findings of fact and conclusions of law. A timetable for submission of these briefs was also established. Petitioner was 

given 30 days after receipt of the transcript to file its brief. Respondent 

was given 20 days after receipt of Petitioner's brief to file a rebuttal 

brief. Petitioner was then to have 15 days from receipt of Respondent '·s 

rebuttal to file its rebuttal brief. A letter was filed by Petitioner on 

October 22, 1979, explaining why it was felt that MSHA should prevail. This 

letter was intended to be Petitioner's posthearing brief, although it did not 

bear a heading or label to specifically designate it as such. Counsel for 

Respondent filed a letter in reply on October 26, 1979. 

851 
On December 13, 1979, Respondent filed a motion to dismiss the abovecaptioned proceedings on the grounds that Petitioner had failed to comply 

with an order of the Judge--to file posthearing briefs. The motion was denied 

since lt was evident at that time that Petitioner either chose not to submit 

a posthearing brief or intended for the letter of October 22, 1979, to serve 

as such a brief. The briefing schedule set forth time periods within which 

briefs must be filed if the parties desired to file briefs. The setting of 

these time periods was in the nature of an agreement between the parties 

rather than an order of the Judge. The failure of Petitioner to submit a 

brief or file a document specifically designated as a brief within the 

aforementioned time period was, therefore, insufficient grounds for dismissal 

of the above-captioned proceedings. However, in view of the confusion which 

may have arisen on the part of Respondent, the parties were afforded additional time to file concurrent posthearing briefs if they desired to do so. 

It was ordered that if a party desired to submit a posthearing brief, it must 

be filed within 20 days of the date of the order which was issued on 

January 7, 1980. 

On January 21, 1980, Petitioner asserted that "the Secretary of Labor 

does not desire to supplement his letter brief dated October 19, 1979." 

Respondent has not filed an additional posthearing brief-. 

Findings of Fact and Conclusions of Law 

The parties entered into the following stipulations at the hearing: 

(1) that the Felder Uranium Operation is covered by the Act of 1977, (2) 

that Joseph Allen Blair was fatally inju.red on July 25, 1978, while employed 

·as a mobile equipment operator by Heldenfels Brothers, Inc., at the Felder 

Uranium Operation, (3) Citation Nos. 169501, 169213, and 170074 and the 

modifications thereto were served upon Heldenfels Brothers, Inc., by MSHA 

and may be received into evidence with the purpose of establishing their 

issuance but not for the truthfulness of any statements therein, and not 

for showing that citations were issued within a reasonable time after the 

alleged violations occurred, (4) if a civil penalty is assessed in these 

proceedings it will not affect the ability of Heldenfels Brothers, Inc., to 

continue in business, (5) employees of Heldenfels Brothers, Inc., worked 

approximately 9,386 hours at the Felder Uranium Operation in 1978, (6) 

employees of Heldenfels worked approximately 218,983 hours at all of the 

operations in 1978, and (7) prior to July 25, 1978, Heldenfels did not have 

a history of previous violations at the Felder Uranium Operation. 

Citation No. 169501 

Citation No. 169501 was issued by inspector Robert W. White on 

September 20, 1979, pursuant to section 104(a) of the Act. The inspector 

cited a violation of 30 C.F.R. § 5.6.9-24 (which was timely amended to read 

30 C.F.R. § 55.9-24) and described the pertinent condition or practice as 

follows: "According to the witness interviewed, the 631D fatally injured 

scraper operator did not have full control of the equipment while in 

motion." 

852 
Joseph Allen Blair, the operator of a 631D scraper, was killed when his 

vehicle collided. with a second scraper on July 25, 1978. The collision 

occurred on Respondent·• s-haiil road, 20 to 30 feet beyond a "Y" intersection. 

The haul road was curved at the point of impact and its surface was on a 

slight incline to Mr. Blair's right. The road was composed of hard-packed 

sand. It was sprayed with water on a regular basis to keep the road surface 

hard and to minimize dust problems. The area in which the accident had 

occurred had been properly sprayed with water a short time before the 

accident. 

Mr. Blair was hauling material from one of Respondent's pits to a stockpiling site. Mr. Young, the operator of the second scraper, was returning 

to the pit after having deposited his load at the stockpile. In failing 

to negotiate the curve to his right, Mr. Blair's vehicle crossed onto 

Mr. Young's side of the road and collided there with Mr. Young's scraper. 

The cab in which Mr. Blair sat was completely severed from the body of 

the scraper. The scraper thereafter caught fire. 

Section 55.9-24 requires that the operators of mobile equipment shall 

have full control of the equipment while it is in motion. In failing to 

negotiate a turn to his right, it is clear that Mr. Bl.air did not maintain 

the control over his vehicle that this section requires. The haul road was 

wide--approximately 250 feet--and there is no indication that Mr. Blair 

tried to turn, brake, or drop the pan. Dropping the pan would have stopped 

the scraper immediately. Both Maria Cortez and Domingo Rodriquez, operators 

of other equipment at the mine who witnessed the accident, testified that 

Mr. Blair's vehicle skidded "a little bit" as it failed to negotiate the turn 

prior to the impact. Although physical evidence which might have substantiated these observations was obliterated by the use of a great amount of water 

to extinguish the scraper fire, the record clearly establishes that the 

vehicle skidded slightly prior to impact. The testimony of these time witnesses who are bilingual is clear as to all relevant matters about which 

they testified. It was obvious that they understood the pertinent questions 

in English and that they were capable of answering accurately in English. 

Their testimony that a skid occurred was not rebutted. Mr. Rodriquez added 

that he believed Mr. Blair had been traveling too fast but he did not state 

the speed of the vehicle in miles per hour. Respondent's superintendent, 

Mr. Marvin Holcombe, who did not see the collision occur, testified that on 

that particular haul road a normal speed for a loader scraper was between 

18 and 20 miles an hour and that Mr. Blair's speed "had to be 11 somewhere 

between 18 and 20 miles an hour. 

Mr. Holcombe based his conclusions as to the speed of Mr. Blair's 

scraper on his post-accident wreckage and information later obtained during 

an investigation rather than on direct observation. The.accident happened 

8 or 9 minutes after Mr. Holcombe drove up the hill to the dump area. 

Mr. Blair had been pulling onto the haul road from a ramp as Mr. Holcombe 

passed by and Mr. Blair came in behind Mr. Holcombe's truck. Mr. Holcombe, 

who went to the scene immediately after the accident, was about 300 yards 

away and his head was turned when he heard the impact. 

853 
Although four marijuana cigarettes were found in the pocket of the 

scraper operator· after _tl:!_e _r_emoval of his body from the mine area, it was 

not established that--he had been smoking them or that he was under the 

influence of any substance that might have caused him to collide with the 

other scraper. 

No plausible cause for the accident exists other than the failure of 

Mr. Blair to control his vehicle. The scraper was disassembled and examined 

after the accident. No mechanical defects which might have contributed to 

the accident were discovered. Moreover, there is no evidence that road conditions contributed to the accident. Shortly before the accident, the road 

had been wet down to minimize dust and keep the surface hard. The road had 

been sprayed properly with no puddles of water left standing and it had been 

cleaned. The record does not support a finding that the surface was slick 

in the area where the scraper skidded or where the collision occurred. A 

number of the witnesses noted that there were some spots of blue clay in 

the roadway that became slippery when wet but it was not established that 

these spots were in the roadway at the site of the accident. Mr. Holcombe, 

who sometimes drove the haul road 15 to 20 times a day, testified more specifically that the blue clay near the accident site was located to the right 

of the roadway. He noted that some clay could be foun·d-in the roadway at a 

location beyond that site. This clay fell from haulage vehicles at times, 

but it was cleaned from the roadway. The blade used to clean the haul road 

followed the water truck which had sprayed the roadway and it had cleaned 

the road prior to the accident. Mr. Blair failed to maintain control of 

his vehicle as required in violation of section 55.9-24. 

Although the record clearly establishes a violation by Heldenfels, 

Inc., the accident was solely the result of fault on the part of the operator of the scraper. As acknowledged by Petitioner's assessment officer prior 

to the filing of the Petition for Assessment of a Civil Penalty "* * * 

absolute control of this equipment is only governed by the operator himself 

* * *·" Although it is the responsibility of management to instruct and 

enforce safe working practices and procedures that will ensure .the safety of 

all of the employees, there must be adequate proof that Respondent failed in 

its responsibility in order to support a finding of negligence on the part of 

Respondent. 

The record does not establish that Respondent knew or should have known 

of any condition that might have caused the scraper operator to fail to maintain control of his equipment or that Respondent failed to exercise reasonable care to correct any condition or practice which might have caused the 

violation. Since Respondent could not reasonably have known of any condition 

or practice which might have caused the violation and had taken reasonable 

precautions to prevent such violations the record does not support a finding 

of negligence on the part of Respondent. Mr. Blair was an experienced 

scraper operator with a good record. Mr. Holcombe's testimony that Respondent disciplined those operators who did not operate the scrapers properly 

was unrebutted. Respondent instructed its operators, including Mr. Blair, on 

the use of the scraper. The operators were apprised of speed limits, speed 

control, traffic control and traffic patterns every morning. Finally, the 

854 
investigation of the accident revealed no equipment defects or dangerous road 

conditions attributable to the negligence of Respondent. 

Citation No. 169213 

Citation No. 169213 was issued by inspector Alex Baca on July 25, 1978, 

pursuant to section 104(a) of the Act. He cited 30 C.F.R. § 55.9-22 and 

described the condition or practice as follows: "The outer berm on the 

roadway on east and south side of Felder No. 3 was not high enough to contain 

the equipment using the travel road." The inspector estimated that additional 

berms were necessary along 50 yards of roadway adjacent to Respondent's 

Felder No. 3 pit. The pit was at least 75 feet deep in this area. The 

distance between the roadway and the pit wall was from 10 to 15 feet. The 

berm in question was comprised of a sandstone-like material and clay, and had 

a width of 3 feet at its base. Its height ranged to a maximum of just over 

2 feet. The berm was entirely absent for a distance of 3 or 4 yards where a 

ramp proceeded into the Felder No. 3 pit. 

Section 55.9-22 requires that berms or guards shall be provided on the 

outer bank of elevated roadways. The regulations do not provide criteria by 

which the minimum height of these berms might be determined •. ·Inspector Baca 

testified that he applied a "rule of thumb" to the effect-that a berm must 

be as high as the axle of the largest vehicle using the road. The largest 

vehicles using this section of roadway were Respondent's scrapers. These 

scrapers had a wheel height of approximately 6 feet and, therefore, an axle 

height of approximately 3 feet. Although the height of the berm varied, it 

was generally 2 feet high--1 foot lower than the height which would be 

required if the rule of thumb applied. 

The inspector, in relating experiences with scrapers similar to those 

used by Respondent and with ridge rows of different heights, stated that the 

scrapers would go over "a two foot deal all the time." Although the ridge 

rows were not of exactly the same material, consistency, and size of the 

berms, the inspector obviously was knowledgeable concerning the type of berm 

that would contain equipment used at the mine. 

The conclusion of the inspector is accepted. The maintenance of the 

berm at heights generally of 2 feet was in violation of section 55.9-22 as 

alleged. 

The Respondent was negligent in that the condition was visually obvious 

but steps were not taken to correct it prior to the issuance of the citation. 

An accident was probable •. The berms were located alongside a regularly 

used roadway and they were not high enough to restrain the scrapers. If an 

accident were to occur, fatal or serious injury would be anticipated. 

The condition was abated with a normal degree of good faith. 

855 
Citation No. 170074 

Inspector Rohert-Whit-e-issued Citation No. 170074 on July 25, 1978, 

pursuant to section 104(a) of the Act. He cited 30 c.F.R. § 55.9-71 and 

described the pertinent condition or practice as follows: "Traffic rules 

including speed and warning signs had not been posted in the pit area where 

the mining equipment is being operated." 

The inspector testified that the citation referred to an area extending 

from the shop to the pit, a distance of approximately one-half mile. No 

speed limit or traffic warning signs were posted in this area. Although 

there was a speed limit sign at the gate, there was none posted in the 

mine area proper. Section 55.9-71 requires that traffic rules, including 

speed signals, and warning signs shall be posted. The failure on the part 

of Respondent to post speed and traffic control signs in this area was in 

violation of the mandatory standard, as alleged. 

Respondent was negligent in its failure to comply with section 55.9-71. 

The absence of the required signs was obvious, yet Respondent failed to 

correct the situation prior to the issuance of the citation. 

Although an accident in the area could cause a fat~l or serious injury, 

it was improbable that an accident or injury would o~cur because of the violation. Mine personnel who operated vehicles were instructed every morning 

where to haul and which haul road to take. It is unlikely that they would 

be unaware of the traffic rules in effect. There was also little likelihood 

that non-mine personnel would travel beyond the shop area and onto the length 

of roadway affected by the citation. 

This condition was abated with a normal degree of good faith. 

Respondent's Motion to Dismiss 

On July 26, 1979, Respondent filed a motion to dismiss these proceedings. As grounds for this motion, it was asserted that an unreasonable 

length of time was taken by MSHA to propose a civil penalty. Respondent 

cited section 105(a) of the Act which reads in pertinent part as follows: 

If, after an inspection or investigation, the Secretary 

issues a citation or order under section 104, he shall, within a reasonable time after the termination of such inspection 

or investigation, notify the operator by certified mail of the 

civil penalty proposed to be assessed under section llO(a) for 

the violation cited * * *· 

This motion to dismiss was denied on August 15, 1979, subject to reconsideration upon the presentation of additional evidence at the hearing. The 

motion was renewed by Respondent at the hearing and again denied. 

At the hearing, Petitioner introduced into evidence two documents 

entitled "Results of Initial Review." These documents were dqted March 2, 

856 
1979, and had been prepared by MSHA pursuant to 30 C.F.R. § 100.5. By the 

terms of these documents, Respondent was given an opportunity either to pay 

the suggested peualties,-t~-submit additional evidence for consideration or 

to request a conference with MSHA's Office of Assessments. 

Two hundred twenty days had elapsed from the date of issuance of Citations No. 169213 and 170074, and the date of issuance of the Results of 

Initial Review. Approximately 165 days had elapsed from the date of issuance 

of Citation No. 169501 to the date of issuance of the corresponding Results 

of Initial Review. 

Each of the three citations alleged violations relating to events which 

occurred and conditions which existed on July 25, 1978. Citation No. 169213 

(berms) and Citation No. 170074 (traffic signs) were issued by the inspector 

on July 25, 1978, the same date as the alleged violations. These citations 

alleged violations by Heldenfels Brothers (an independent contractor). In 

subsequent actions on July 27, 1978, and July 28, 1978, citations were issued 

modifying the original citations to allege violations by Exxon Minerals 

Company, USA (the operator). In subsequent actions on October 6, 1978, citations were issued to correct the modification and again allege that the violations were by Heldenfels Brothers. 

Citation No. 169501 (failure to have full control of equipment on 

July 25, 1978), was not issued until September 20, 1978. This citation 

which alleged a violation by Exxon Minerals Company, USA, was modified by 

subsequent action in the form of an additional citation, issued on October 8, 

1978. The operator's name was changed on this citation to read Heldenfels 

Brothers. The initial citation alleged a violation of Part 56.9-24. A subsequent action citation issued on November 15, 1978, corrected the part 

number to allege a violation of Part 55.9-24. 

At the hearing, Petitioner also introduced a document entitled "Results 

of Initial Review" on Form 1000-178 (MSHA) which listed a penalty of $56 for 

Citation No. 169213 and a penalty of $48 for Citation No. 170074. The date of 

.this document (Exh. P-6) was October 3, 1978. !/ The company name listed on 

the form was Exxon Minerals Company, USA. The mine name listed was Felder 

Uranium Operation. A handwritten notation dated October 6, 1978, on this 

document indicated that a request had been made to recall the violations 

listed for reassessment because they were "fatal related • .'' In its motion to 

dismiss, filed July 26, 1979, counsel for Respondent stated that he had 

received this document but had been informed upon inquiry that it had been 

]} Respondent stated that in its memorandum submitted on August 17, 1979, 

that it would have filed a motion to dismiss had the Original Results of 

Initial.Review and Citation not been withdrawn, on the basis that the 

period of time that elapsed since July 25, 1978, was not a reasonable 

time under section 105 of the Federal Mine Safety and Health Act of 1977 

(30 u.s.c. § 815). 

857 
withdrawn and would be reissued at a later time. 2/ The record shows that 

the penalties in subsequently issued "Results of Initial Review" and in the 

"Proposed Assessril_~nt'.'.._ were -increased slightly, from $56 to $78 for one violation and from $48 to $56 for the other. 

In its "Memorandum in Opposition to Respondent's Motion to Dismiss" 

filed on August 8, 1979, Petitioner argued that its inspection and investigation did not end with the issuance of the citations. Petitioner's 

rationale was that "such inspection and investigation continued through the 

consideration of additional evidence submitted in response to the notification of the Results of Initial Review which was dated March 2, 1979." 

Respondent in its "Memorandum in Opposition to Petitioner's Memorandum" 

filed on August 17, 1979, replied that there was no further investigation 

or inspection by MSHA after the original Results of Initial Review and the 

citations were issued on September 20, 1978. 

The record indicates that Respondent's investigation, which included 

dismantling and inspection of the scraper, continued until the month of 

September, 1979. There is no indication that any actual investigation or 

inspection by either Petitioner or Respondent occurred after that time. 

Although the record does not support a finding that MSHA performed any actual 

investigation or inspection after September 20, 1978, MSHA regulations prescribe procedural steps in the assessment process that must be taken after 

the issuance of citations. These assessment procedures which normally 

require considerable time set forth each procedural step, set time limits 

for some of the steps, and authorize the submission of additional evidence 

for consideration as well as a conference with the Office of Assessments 

to provide information relating to the violations. 

The reasonableness of the alleged delays about which Respondent complains must be determined in light of the provisions of 30 C.F.R. § 100, as 

2/ Heldenfels Brothers, Inc.'s Original Motion to Dismiss filed in Docket 

No. DENV 79-576-PM on July 26, 1979, contained the following statement: 

"The investigation made on the basis of the above styled and numbered 

cause, occurred on Tuesday, July 25, 1978, as shown by the copy of the 

citation which was attached to the original RESULTS OF INITIAL REVIEW which 

was originally issued on September 20, 1978, copies of whi~h are attached 

hereto as exhibits." 

Contrary to Respondent's statement in its motion, no Results of Initial 

review, issued on September 20, 1978, were attached to the motion filed and 

none with that date were offered in evidence at the hearing. The only 

attachment to the motion was a "Proposed Assessment" issued on Form 1000-179 

(MSHA) on March 15, 1979, listing a penalty of $78 for.Citation No. 169213 

and a penalty of $56 for.Citation No. 170074. This "proposed assessment" 

(dated March 15, 1979), was the same as that attached to the Secretary of 

Labor's Petition for Assessment of Civil Penalties filed on July 2, 1979, 

in Docket No. DENV 79-576-PM. 

858 
well as the unusual factual aspects of this case. Part 100 sets forth the 

criteria and procedures for the proposed assesment of civil penalties under 

sections 105 and 110_of. the-Federal Mine Safety and Health Act of 1977. It 

is the purpose of those rules to provide for the prompt and efficient proposal and collection of penalties in order to insure maximum compliance by 

the coal and metal/nonmetal mining industries with the requirements of the 

Act and the standards and regulations promulgated pursuant to the Act. 

The guidelines given in Part 100 provide some indication of the normal 

timetable for notifying operators of a proposed penalty. These provisions 

set forth a formula for determining the proposed penalty, prescribe circumstances under which the formula need not be used, and state in detail the 

steps that may be taken in the assessment procedure. 

Some of these procedural steps prescribed by Part 100 are in general, 

as follows: Referral by MSHA to the Office of Assessments, initial review 

of citation (including formula computations), service of results of initial 

review on party and miners, request for conference or submission of additional 

evidence for consideration, conference, determination of proposed penalty, 

service of notice of proposed penalty, payment of uncontested proposed penalty by party charged, notification of contest of proposed assessment, 

referral of case to solicitor and notification of commi·ssion. 

As to the first step listed, subpart 100.5(a) provides that "All citations which have been abated and all closure orders, regardless of termination or abatement, will be promptly referred by MSHA to the Office of 

Assessments for a determination of the fact of the violation and the amount, 

if any, of the penalty to be proposed." The time for abatement of a citation allowed by the inspector must be reasonable and it is dependent upon 

what must be done to correct the condition found. 

Some of the steps listed must be taken immediately, or immediately by 

regular mail. For others, no time limit is specifically prescribed. 

Examples of the lengths of time specifically prescribed for some steps are 

10 days, 33 days, 20 days, and 30 days. The 33-day limit is that prescribed 

for the conference. Additional time is allowed for this step under certain 

conditions. After completion of the assessment procedures under Part 100, 

the Secretary must file a proposal for a penalty with the Commission within 

45 days of receipt of a timely notice of contest of a noti£ication of proposed assessment of penalty. 29 C.F.R. § 2700.27. 

The procedures prescribed by Part 100 are consistent with the provisions 

of the Administration Procedural Act which state that "The agency shall 

give all interested parties opportunity for (1) the submission and considera~ 

tion of facts, ·arguments, offers of settlement, or proposals of adjustment 

when time, the nature of the proceeding, and the public interest permit; 

and (2) to the extent that the parties are unable to determine a controversy 

by consent, hearing and decision on notice and in accordance with sections 

556 and_ 557 of this title." 5 U.S.C. § 554(c). 

859 
There is no indication in the record that time, the nature of the proceeding,- or the public interest did not permit the exercise of the orderly 

assessment proc~c:Iu1'.~s.p.r.eacribed by Part 100. 

While the procedures prescribed by those rules may delay the date of a 

hearing, they provide additional due process to operators, especially small 

operators without in-house counsel. They may also result in a saving of time 

in the long run by resolving issues prior to a hearing. In many instances, 

the need for taking testimony and conducting a hearing is eliminated. 

The fact that Respondent did not submit additional evidence for consideration by the assessment officer or request a conference saved little time. 

A conference in this particular case might have actually shortened the prehearing process or eliminated the need for a hearing. The fact that no 

mechanical defects were found when the scraper was dismantled by Respondent 

was relevant information that did not become available until some time after 

the accident and may not have been considered by the assessment officer. 

It also appears from the narrative statement attached to the Results of 

Initial Review, March 2, 1979, that the assessment officer was unaware of 

Respondent's efforts to instruct and enforce safe working practices and procedures. Specifically, Respondent's practice of instructing drivers on the 

use of particular vehicles, of disciplining drivers for improper operation 

of their vehicles and of notifying drivers, of the traffic rules on a daily 

basis may not have been considered. Information of this type which might 

have been furnished at a conference would undoubtedly have been useful to 

the Assessment Office:r in expediting .the case in the. event that it had not 

been obtained from other sources. 

The state of law in regard to whether the operator or the independent 

contractor should be cited was somewhat unsettled during the relevant times. 

The law on this subject was not clarified until October 29, 1979, when the 

Federal Mine Safety and Health Review Commission issued its decision in 

Secretary of Labor, Mine Safety and Health v. Old Ben Coal Company, Docket 

No. VINC 79-119. MSHA's vacillation and apparent indecision in modifying 

and remodifying the citations and Results of Initial Review in the case-athand are more understandable in view of the confused state of the law prevailing at that time. Had MSHA proceeded with the issuance of a notice of 

proposed penalty to the wrong party and.caused a hearing to be held before 

the Old Ben decision in October of 1979, that action might have resulted in 

appeals, remands, and additional hearings, and in gr.eater delays. 

It has not been shown that the time complained of was unreasonable, 

that Respondent was misled, or that Respondent suffered any actual harm as 

a result of Petititioner'~ alleged delay. If there had been a need for 

review of the citations prior to completion of the assessment procedures, 

Respondent was not without a remedy. It could have. file·d a Notice of Contest of those citations under the provisions of .29 C .• F .R. § 2700 .20 (Rules 

of Procedure) at any time within 30 day's after the issuance of the citations. 

If Respondent was able to establish exigent circumstances warranting expedition, an expedited hear.ing could have been held within a few days after 

860 
the citation was issued. 29 C.F.R. § 2700.S2. The only apparent consequence of the delay established by the record is that Respondent was, in 

effect, given that-mtiCh.add[tional time before it was required to pay penalties for the violations. 

Respondent did not demonstrate that MSHA failed to provide notification 

of the proposed asssessment within a reasonable time as required by Section 

lOS(a) of the Act or that Heldenfels Brothers, Inc., was adversely affected 

because of the time taken by MSHA to do so. The denial at the hearing of 

Respondent's motion is hereby affirmed. 

Proposed findings of fact and conclusions of law inconsistent with 

this decision are rejected. 

Assessments 

In consideration of the findings of fact and conclusions of law contained in this decision, the following assessments are appropriate under 

the criteria of section 110 of the Act. 

Citation No. 

169S01 

169213 

170074 

ORDER 

Penalt:I_ 

$100 

78 

S6 

It is hereby ORDERED that Respondent pay the sum of $234 within 30 days 

of the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative La~ Judge 

·Robert A. Fitz, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Suite SOl, SSS Griffin Square Building, Griffin and Young 

Streets, Dallas, TX 7S202 (Certified Mail) 

H. C. He.ldenfels, Jr., Attorney for Respondent, P.O. Box 49S7, 

Corpus Christi, TX 78408.(Certified Mail) 

861 
FEDERAL MINI SAFITY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5201 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

l 1 APR 1990 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

JESSE S. MORIE & SON, INC., 

Respondent 

Docket No. WILK 78-322-PM 

A.O. No. 28-00526-05001 

Docket No. WILK 78-323-PM 

A.O. No. 28-00526-05002 

Morie Division 

DECISIONS 

Appearances: David E. Street, Esquire, Office of the Solicitor, 

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

for the petitioner; 

Before: 

Edward C. Laird, Esquire, Haddonfield, New Jersey, for 

the respondent. 

Judge Koutras 

Statement of the Proceedings 

These consolidated civil penalty proceedings were initiated by the petitioner on September 21, 1978, through the filing of civil penalty proposals 

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 civil penalty assessments 

for 29 violations of certain mandatory safety standards promulgated pursuant 

to the Act. All of the citations were issued pursuant to section 104(a) 

of the Act, and copies are included as part of the pleadings filed in the 

proceedings. 

Respondent filed answers contesting the citations on October 24, 1978, 

and the cases were assigned to Judge Moore who issued prehearfng orders concerning the scheduling of hearings, possible settlements, and the scheduling 

of a prehearing conference. MSHA's Arlington, Virginia, Solicitor's Office 

advised Judge Moore that the parties were unable to settle the cases and 

that they should be scheduled for hearings. 

The cases were subsequently reassigned to me, and by notice of hearing 

issued on December 20, 1979, they were scheduled for hearing in Philadelphia, 

862 
Pennsylvania, on February 13, 1980. MSHA's Philadelphia regionalcounsel 

entered his appearance in the cases on January 18, 1980, and the parties 

appeared at the hearing'p~rs~ant to notice. However, upon calling the 

dockets, the parties informed me for the first time that they proposed to 

settle the citations and requested an opportunity to present their proposals 

for my approval. Counsel were permitted to state their positions (Tr. 1-12), 

including an explanation as to why the proposed settlements were not communicated to me in advance of the hearing, and after due consideration they were 

permitted to present their settlement proposals on the record. 

Discussion 

The citations in question, the initial assessments, and the proposed 

settlement amounts are as follows: 

Docket No. WILK 78-322-PM 

30 C.F.R. 

Citation No. Date Section 

204502 3/22/78 56.14-1 

204503 3/22/78 56.11-2 

204504 3/22/78 56.11-27 

204505 3/22/78 56.14-1 

204506 3/22/78 56.12-20 

204507 3/22/78 56.16-6 

204508 3/22/78 56.4-2 

204509 3/23/78 56.11-1 

204510 3/23/78 56.14-1 

204511 3/23/78 56.9-2 

204512 3/23/78 56.9-54 

204513 3/23/78 56.11-1 

204514 3/23/78 56.14-1 

204515 3/23/78 56.14-1 

204516 3/23/78 56.20-3 

204517 3/23/78 56.14-1 

204518 3/23/78 56.11-27 

204519 3/23/78 56.11-27 

204520 3/23/78 56.14-1 

204521 3/23/78 56.11-1 

Docket No. WILK 78-323-PM 

30 C.F.R. 

Citation No. Date Section 

204522 3/23/78 56.14-1 

204523 3/23/78 56.11-27 

204524 3/23/78 56.11-1 

863 

Assessment 

$ 72 

72 

60 

106 

78 

60 

48 

84 

84 

84 

78 

90 

106 

122 

78 

90 

90 

90 

90 

90 

$1,672 

Assessment 

$ 90 

90 

98 

Settlement 

$ 38 

38 

34 

106 

40 

36 

34 

48 

40 

48 

40 

48 

60 

60 

44 

52 

48 

44 

56 

44 

$958 

Settlement 

$ 50 

44 

44 
204525 3/23/78 56.11-12 90 44 

204526 3/23/78 56.11-27 90 44 

204528 3-/ 2 3 /-7 8--- 56.4-9 72 40 

204529 3/23/78 56.4-2 40 30 

204530 3/23/78 56.12-25 72 38 

$642 $334 

On motion by the petitioner made on the record, petitioner's proposal 

for assessment of a civil penalty for Citation No. 204527, March 23, 1978, 

citing 30 C.F.R. § 56.12-18, in Docket No. WILK 78-323-PM, is DISMISSED 

(Tr. 14, 28). 

Stipulations 

The parties stipulated that the respondent is a medium-sized sand and 

gravel mine operator; that respondent has no prior history of violations; 

and that the penalties assessed in these proceedings will not adversely 

affect respondent's ability to remain in business (Tr. 16). 

With regard to the factors of gravity, negligence, and good faith compliance, the parties presented information and arguments on the record with 

respect to each of the citations in issue, and a summary of this information 

follows below. 

Negligence 

Although MSHA's counsel asserted that some of the citations resulted 

from "low negligence," the parties were in agreement with my conclusions 

that they all resulted from ordinary negligence, that is, they all resulted 

from the failure by the respondent to exercise reasonable care to prevent 

the conditions or practices which caused the violations and which the 

respondent knew or should have known existed (Tr. 24-28). 

Gravity 

The parties agreed that with the exception of those citations characterized by MSHA's counsel on the record as nonserious, that the remaining 

citations were serious (Tr. 23). 

With respect to Citation Nos. 204502, 204504, 204508, 204510 (Docket 

No. WILK 78-322-PM), and Citation Nos. 204528, 204529, and 204530 (Docket 

No. WILK 78-323-PM), MSHA's counsel asserted that the inspector, who was 

present in the courtroom, does not now believe that they were "significant 

and substantial" and that the inspector would modify his citations to 

reflect this fact (Tr. 14). 

Good Faith Compliance 

The parties are in agreement that all of the citations were timely 

abated in good faith, and with regard to Citation Nos. 204502, 204503, 

864 
204507, 704509, 204510, 204512, 204515, 204519, 204520, and 204523, petitioner's counsel asserted that respondent exhibited exceptional good faith 

compliance by acltie-v-ing-rapid compliance (Tr. 15-22; 29-31). 

Conclusion 

After careful consideration of the arguments presented by the parties in 

support of the proposed settlement, and taking into account the six statutory 

criteria set forth in section llO(i) of the Act, including the fact that the 

respondent has no prior history of violations, and that all of the citations 

were issued a week or two after the effective date of the 1977 Act, I conclude and find that ·the proposed -settlement should be approved. 

ORDER 

Pursuant to 29 C.F.R. § 2700.JO, the proposed settlement of these 

dockets is APPROVED, and respondent IS ORDERED to pay civil penalties 

totaling $1,292 in satisfaction of the citations noted above, payment to 

be made to MSHA within thirty (30) d~ys of the date of these decisions. 

Distribution: 

David E. Street, Esquire, Office of the Solicitor, u.s. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Edward c. Laird, Esquire, Archer, Greiner & Read, One Centennial 

Square,. East Euclid Avenue, Haddonfield, NJ 08033 (Certified Mail) 

865 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL CO., 

Respondent 

2 SKYLINE, 10th FLOOR 

· 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) i56-6210/11 /12 

1 1 APR 1990 

Civil Penalty Proceeding 

Docket No. WEVA 79-362 

A.O. No. 46-01436-03048I 

Shoemaker Mine 

DECISION AND ORDER 

Appearances: Barbara K. Kaufmann, Esq., U.S. Department of Labor, 

Office of the Regional Solicitor, Philadelphia, Pennsylvania, 

for Petitioner; 

Michel Nardi, Esq., Consolidation Coal Company, Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Kennedy 

The captioned proposal for the assessment of a civil penalty for an 

alleged violation of the mandatory safety standard that requires troubleshooting of electric power circuits and electric equipment with the power 

off except where necessary to correct the trouble encountered (30 C.F.R. 

75.509) came on for an evidentiary hearing in Pittsburgh, Pennsylvania 

on April 9, 1980. After hearing the parties at length and carefully 

considering the evidence and testimony adduced, the trial judge made the 

following bench decision: 

Based on a preponderance of the reliable, probative and 

substantial evidence, and after observing the demeanor -~f the 

witnesses, I find: 

1. The violation charged did not, in fact, occur because 

Mr. Harrigan and Mr. Shaw were properly engaged in 

troubleshooting the circuit breaker in question at the 

time it exploded for reasons not disclosed by the record. 

2. The opinion testimony of Inspector Kinser as to the limited 

meaning assigned by him, and presumably MSHA, to the term 

troubleshooting is not in accord with the common understanding of the term or any persuasive evidence as to a 

more limited trade usage. 

866 
3. Furthermore, the more limited meaning is contrary to 

the exception which permits troubleshooting with the 

power on where the evidence shows, as it does here, that 

without the-power on the trouble found was not reasonably 

susceptible of correction. 

4. As presently written, the standard prohibits troubleshooting 

with the power on only where it can be shown that the 

trouble encountered is reasonably susceptible of a fix 

or repair without the power on. 

5. That the exception largely swallows what appears to be 

a salutary rule is the reason why the Act provides for 

the issuance of improved safety standards. ±_/ 

6. The rule of liberal interpretation cannot be expanded 

beyond the limits of its logic, especially where the 

result may impose a stigma on miners and the operator for 

conduct not clearly prohibited. 

7. Most significant to my determination was Mr. Kinser's 

statement that he did not believe that what Mr-.- Harrigan 

did was a deliberate by-pass of a safety device (the 

undervoltage regulator) but merely an effort to make 

the electromagnetic coil resume its normal function 

without the necessity for extensive repairs. 

8. Nothing said here is to be taken as a condonation or 

approval of Mr. Harrigan's "short-cut" or of the obvious 

and serious hazard it created. 

9. I urge the parties, and especially MSHA, to take immediate 

action to preclude this type of accident by clarifying the 

conduct prohibited under the guise of troubleshooting with 

the power on. 

The premises considered, it is ORDERED that the petition for 

assessment of a civil penalty be, and hereby is, DISMISSED. 

±_/ Over two years ago, Judge Lasher dismissed a stronger case for 

enforcement on the ground that the standard in question is too vague and 

ambiguous to be enforceable. Secretary v. Peabody Coal Company, Dkt. No. 

DENV 77-67-P, Nov. 13, 1978. Despite the fact that neither the Secretary nor 

the Commission questioned the correctness of Judge Lasher's analysis of the 

infirmities of the standard from the standpoint of due process, his suggestion 

for clarifying amendments under the rulemaking process was ignored. The policy 

of attempting to achieve amendment of defective standards through endless and 

fruitless litigation while miners continue to be killed or seriously injured 

because the standards in effect do not guarantee the level of protection 

contemplated is not in accord with the fundamental purposes and policy of 

the Act. 

867 
With the addition of the footnote, which merely summarizes a 

discussion in the record, the foregoing is a true and correct copy of the 

bench decision ent~red ~n-this matter. Accordingly, it is ORDERED that 

the same be, and hereby is, ADOPTED AND CONFIR.."f>.fED as the trial judge's 

final decision in this matter. 

Judge 

Distribution: 

Barbara K. Kaufmann, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Michel Nardi, Esq., Consolidation Coal Company, ConsolPlaza, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

868 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

-OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52C:l LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

l ~ APR 1980 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. DENV 79-163-PM 

Petitioner A/O No. 41-00010-05001 

v. 

CAPITOL AGGREGATES, INC., 

Respondent 

Capitol Cement Quarry & Plant 

Docket No. DENV 79-240-PM 

A/O No. 41-01792-05001 

Pit & Plant No. 4 

DECISION 

Appearances: Sandra D. Henderson, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Robert w. Wachsmuth, Richard L. Reed, Esqs., San Antonio, 

Texas, for Respondent. 

Before: Judge Charles c. Moore, Jr. 

The above cases came on for trial in San Antonio, Texas, on January 8, 

1980. In both cases, as soon as the Government had rested its case, Respondent moved for dismissal on the grounds that no showing of an effect on 

interstate commerce had been made. Both motions were denied principally on 

the rationale of Wickard v. Filburn, 317 U.S. 111 (1942). That case involved 

home grown wheat which was used for the grower's own consumption, and the 

court said at page 91 "but if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by 

purchases in the open market. Home grown wheat in this sense competes with 

wheat in commerce." Subsequent cases have held that Respondent's activities 

need not be considered alone in order to measure their effect on commerce but 

may be combined with others engaged in similar activities. 

Even activity that is purely intrastate in character may 

be regulated by Congress, where the activity, combined with 

like conduct by others similarly situated, affects commerce 

among the States or with foreign nations. See Heart of 

Atlanta Motel, Inc. v. U.S. 379 U.S. 241, 2SS--(1964); Wickard v. 

Filburn, 317 U.S. 111, 127-128 (1942). [Fry v. U.S., 421 

U.S. 542 at 547 (1974).] -

Thus, Respondent can be regulated by Congress, i.e., subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977 ("the Act") if its 

869 
activities, though purely intrastate, have a substantial affect on interstate 

commerce when combined with those of the entire industry. That this is true 

here is beyond di·~pu~~~. 

Turning to the record, Mr. Wesley Bonifay, vice president of Respondent, 

testified that Respondent's products were shipped chiefly by truck (Tr. 

II-239). The commerce power extends to instrumentalities of commerce, Hammer 

v •. Dagenhart, 247 U.S. 251 (1917); ICC v. Ill. C.R. Co., 215 U.S. 452 (1909); 

ICC v. Chi. A.R. Co., 215 U.S. 479 (1909); Welton v. Missouri, 91 U.S. 275 

(1875); Sherlock v. Alling, 93 U.S. 99 (1876); Simpson v. Shepard, 230 U.S. 

352 (1912); and Carter v. Carter Coal Co., 298 U.S. 238 (1935), so that 

Respondent becomes subject to Congressional regulation as soon as its products enter the stream of commerce. 

The Act applies to "[e]ach coal or other mine, the products of which 

enter commerce, or the operations or products of which affect commerce * * *" 

[30 U.S.C.A. § 803], and defines commerce as, "trade, traffic, commerce, 

transportation, or communication among the several States, or between a place 

in a State and any place outside thereof * * * or between points in the same 

State but through a point outside thereof***" [30 u.s.c.A. § 802]. 

Respondent's activities in using the telephone, in shipping its product, or 

as a member of the cement industry have the effect of bringing Respondent 

into the mainstream of commerce and subject Respondent to Congressional regulation. Also, in its answers, Respondent admits that it does sell its products in the State of Texas. In my opinion, that alone would be sufficient. 

DENV 79-163-PH 

The first case involved Respondent's cement operation wherein it mines 

limestone and makes it into cement. Respondent employs about 140 men in 

this operation, but is still the smallest cement company in the United 

States. It has no prior history of violation and I find that all citations 

were abated promptly and in good faith. 

Citation No. 169703. The allegation is that the Respondent violated 

30 C.F.R. § 56.9-24 in that the 930 Caterpillar front-end loader operator did 

not have full control of his loader when idling. The standard in question 

requires that an operator have full control of his vehicle when it is moving. 

In this type of front-end loader, steering is accomplished __ by hydraulically 

articulating the machine. If the hydraulic pressure is too low an excessive 

number of turns of the steering wheel is required in order to make the 

machine articulate. There was testimony by the inspector that at low idle 

the machine stopped articulating even while the wheel was being turned, but 

the same inspector also testified that when the articulation had gone far 

enough to reach the stops the s.teering wheel would still turn. I cannot. see 

how both statements could be accurate. At higher rpms than low idle however, 

(low idle was around 500 rpms) the steering was normal according to the 

operator of the equipment. The equipment operator, Mr. Aiken, said that he 

had no trouble steering the machine until the inspector had him stop the 

equipment and attempt to articulate it at the low idle speed. Mr. Aiken did 

admit that when the test was being made at low idle an excessive number of 

870 
turns were required to articulate the machine from one stop to the other. 

The front-end loader---was-derective in that there was some wear on a small 

cartridge (part of a hydraulic pump) but the mechanic who has worked on many 

of this type of tractor said that it is perfectly normal for the wheel to 

continue to turn after the stop has been reached. He said the effect of this 

worn cartridge would be loss of some steering at idle power. In view of the 

fact that the inspector's test was made while the equipment was not moving, 

and the testimony of the machine operator that he had no trouble steering the 

machine, I cannot find as a fact that the machine operator did not have full 

control of the equipment while it was in motion. I therefore vacate the 

citation. 

Citation No. 169261. The allegation is that the elevated walkway at the 

Nos. 3 and 4 belt conveyors had excess material accumulated on it which prevented safe access for employees and thus violated 30 C.F.R. § 56.11-1. The 

inspector stated that the material on the belt was marl, a combination of 

limestone and clay, and that at one point it was 1-1/2 feet deep. The 

inspector could not remember whether he had walked on the walkway, but he did 

state that marl is slippery if on an angle and while some spillage is normal, 

this was excessive in his opinion. Respondent's Exhibi-t- 4- fs a sketch of the 

two walkways involved and the black areas marked thereon show where the 

spillage occurred. The Nos. 2 and 3 conveyors were not running at the time 

of the inspection, and when they are not running there is no reason for anyone to be on the walkways. When they are running, however, the walkways are 

used to inspect the belt and every morning and every afternoon all of the 

larger chunks of marl on the walkway are removed and thrown on the belt. 

Smaller material is cleaned up by the labor crew whenever cleaning is needed 

or whenever a crew is idle. The pieces on the walkway at the time of the 

inspection were less than 5 inches in diameter, were scattered and there 

was no problem in stepping in between the pieces. The transfer point where 

the spillage occurred is 30 feet in the air but the spilled material was 

caught in the metal grating floor and would not roll or move when stepped 

on. After hearing the testimony, I am not convinced that such spillage as 

existed constituted a hazard to the extent that Respondent failed to provide 

safe access to a working place. Convincing me of that fact was the Petitioner's burden in this case, and in the absence of the satisfaction of that 

burden, the citation is vacated. 

Citation Nos. 169262 and 169263 alleged that the elevated walkway next 

to the C-24 clinker conveyor and the platform at the top of that walkway 

contained accumulations of material which prevented safe access to the area 

and thus violated 30 C.F.R. § 56.11-1. The material accumulated on both the 

walkway and the platform was clinker which is a product that is created during the process of converting limestone into cement. On the walkway, the 

clinker had become powdery after having been walked on and had then become 

moist due to the fact that it was exposed to the rain. Thereafter, it became 

hard like cement or mortar and could be walked on without a slipping hazard. 

When in powdery form and not wet, the clinker will fall through the gratings 

of the walkway. Again, I am unconvinced that this created a hazard amounting 

to the failure to provide safe access. A picture might have convinced me 

otherwise, but the oral testimony that I heard was not sufficient to sustain 

871 
the Secretary's burden of proof regarding the walkway. Citation No. 169262 

is vacated. As to the a~~t!_~ulation on the platform, inasmuch as the platform was coveredl:>y ·so~e type of canopy, the clinker had not hardened into a 

cement-like mass. The pile of clinker on the platform was 3 feet high but 

covered only about 12 square feet out of a platform area of 60 square feet. 

The pile was readily visible. There was plenty of room to walk around it 

since it constituted only one-fifth of the platform area and while I think 

it would have been better mining practice to clean it up, I do not see how 

it could be any more hazardous than a tool box or some piece of equipment 

bolted down in the same area. I find that the Secretary has not carried his 

burden of establishing that respondent failed to provide safe access to a 

working area. The citation is vacated. 

Citation No. 169698. The citation alleges a violation of 30 C.F.R. 

§ 56.14-1 in that a pinch point on the conveyor belt feeder drive pulley was 

not guarded. There is no question but that the drive pulley for the conveyor 

belt alongside the walkway was unguarded. But the standard requires that 

only such pulleys be guarded that "may be contacted by persons, and which may 

cause injury to persons * * *•" Because of the direction of the drive pulley 

in question, the pinch point was at the bottom of the pulley and that pinch 

point was 3 feet from the middle of the walkway. The frame of the feeder is 

channel iron and extends along the walkway between that walkway and the conveyor and is 4 inches above the walkway. The belt moves at about 4 to 5 feet 

per minute which is slower than the movement of the outer edge of the second 

hand on a standard issue 13-inch diameter Government electric clock. Anybody 

could reach down under this conveyor and try to remove something and perhaps 

get caught in the pinch point. If a person wanted to do that, however, he 

would have to first remove any guard that was installed; so a guard would not 

prevent that type of injury. Respondent's Exhibits 7, 8 and 9 are photographs of the area and the pinch point is not even visible in those photographs. I th.ink it highly unlikely that anyone could accidentally get caught 

in the pinch point of this slow-moving drive pulley. The citation is vacated. 

Citation No. 169699. This citation alleges a violation of 30 C.F.R. 

§ 56.11-1 (safe access) in that a slipping hazard was created on the floor 

on the ball mill side of the ring drive because a portion of the floor was 

covered with crater gear lube. Respondent produced a small bottle of crater 

gear lube that had been labeled as Respondent's Exhibit 10. Crater gear lube 

has a thinning agent when it is first taken out of the can so that it can be 

spread on the gears. After a short bit of use, this thinning agent is disbursed and the gear lube becomes thick and sticky like tar. Respondent's 

Exhibit 10 was thick and sticky at the time of the trial 1/ and could not in 

my opinion have created a slipping hazard. The citation is vacated. 

1/ The exhibit was given to the reporter and it was returned to me with the 

transcript. It was wrapped in plastic when I received it and the texture 

appears to have been altered by virtue of its having been wrapped in the 

plastic. Also, I cannot find in the transcript any notation that it was 

received in evidence. It was treated as an exhibit, however, and I am 

relying on its texture in reaching a decision. 

872 
Citation No. 169700. The charge here is that the 25-foot high coke 

stockpile was bec<unin_g__undel'lllined at one point in violation of 30 C.F.R. 

§ 56.9-61. The mandatory standard states "stock pile-and muck pile faces 

shall be trimmed to prevent hazards to personnel." I interpret this to mean 

that a stockpile shall not be undermined.or kept at any angle which would 

present a falling or landslide type hazard. While Respondent's witness 

stated coke was not subject to sliding and was stable, it was nevertheless 

the inspector's opinion that the angle which he saw on the face did present 

a material slide hazard. The front-end loader was equipped with a cab and 

although the stockpile was 25 feet in height, there was no evidence as to 

the height of the top ·of the cab on the front-end loader. I find a violation 

existed but I find very little hazard and only slight negligence. A 

penalty of $25 is assessed. 

Citation No. 169705. The citation alleges a violation of 30 C.F.R. 

§ 56.17-1 in that lights over the coke storage bin and the walkways were not 

burning which prevented sufficient light for safe working conditions. The 

inspector did not testify that he used a light meter and in the absence of 

such testimony, I will presume that he did not. He was not questioned either 

on direct or cross-examination concerning the extent of li_ght- that was in the 

area. The mere fact that some lights are not burning does not establish a 

violation but when the inspector testified that in his judgment there was 

insufficient light, it was then the duty of Respondent, if it thought that 

there was sufficient light, to come forward with evidence to that effect. 

The lights failed because of the failure of a photo-electric cell but there 

is no evidence as to just when that cell failed. If the photo-electric cell 

failed immediately before the. inspector noticed the lights, I would say that 

no violation was established. On the other hand, if it had failed several 

weeks before I would say there was not only a violation but that the negligence was high. As the evidence stands, I will find that a violation existed 

but that no negligence was proved. In the absence of any evidence as to how 

dark it really was, I will find that the hazard was not great. A penalty of 

$25 will be assessed. 

Citation No. 169697. The charge here is that the company did not have 

standardized traffic rules including speed and warning signs posted for the 

quarry roadway in violation of 30 C.F.R. § 56.9-71. The only traffic sign 

on the property was at the entrance to the mine. It displayed a 13 mile 

an hour speed limit and had arrows pointing towards the receiving and dumping 

areas. There were no signs in the quarry and it was Respondent's position 

that it could post rules orally by telling the drivers what to do. There 

were only three drivers, they had been with the company for a number of 

years, and had operated safely during that time. The fact remains, however, 

that Respondent did not post signs and standardize its traffic despite the 

clear requirements of the safety standard that it do so. The violation is 

clear, and Respondent's negligence is clear but I cannot find a high degree 

of hazard in view of the experience that these drivers had and the supervision exercised over them by the foreman. A penalty of $40 will be 

assessed. 

873 
Citation No. 169706. This citation alleges a violation of 30 C.F.R. 

§ 56.17-1 in that_~h~~~.were_no lights under the coke impact crusher 

around the tail pulley of the C-58 conveyor belt and the tail section of 

the apron feeder under the coke hopper. The inspector testified that 

there were numerous hazards in walking in such a dark area including the 

chance of a rattle snake bite. Inasmuch as miners might have to travel 

in the area at night, this condition did constitute a violation, but since 

all workers carried flashlights and since all repair work that had to be 

done was done with the benefit of a plug-in type auxiliary lamp, the 

hazard was not high, nor was the negligence, and a penalty of $25 will 

be assessed. 

DENV 79-240-PM 

At the outset of the hearing on this case, the Solicitor vacated 

Citation No. 170011 and the parties agreed on a settlement of $40 for Citation. No. 170009. The original assessment on Citation No. 170009 was $56 

and I accepted the settlement on the record. 

Citation No. 170007. The charge is that a 40-foot long Euclid haulage 

truck was not equipped with an operating backup warning device in violation 

of 30 C.F.R. § 56.9-87. The inspector testified that the truck driver's 

vision to the rear was obscured by the high bed behind the cab and that he 

had observed haulage trucks backing up in the vicinity of the dragline where 

they sometimes had to reposition their trucks in order to receive material 

from the dragline. He thought they might also back up at the hopper but did 

not observe any doing so. Nor did he observe any spotters assisting the 

truck driver when he was backing up near the dragline. There is some possibility that signals between the dragline operator and truck driver might have 

served the same purposes as a spotter, but the evidence was not sufficiently 

persuasive fo.r me to make a finding that there was "an observer to signal 

when it is safe to back up." The backup alarm was therefore required by the 

standard and failure to have that backup alarm operating did constitute a 

violation. The drivers of the trucks are supposed to report any defect such 

as a failure of the backup warning horn, but the driver of this particular 

truck did not realize that his horn had failed. The cause of the failure was 

a broken wire. I cannot find a high degree of negligence and in view of the 

fact that there was no one in the hopper area to be injur~~ and no one in 

the dragline area except the dragline operator sitting in his machine, I 

cannot find that this was a very hazardous operation. A penalty of $30 will 

be assessed. 

Citation No. 170010. This citation alleges that the bull gear on the 

dragline was not guarded in violation of 30 C.F.R. § 56.14-1. The bull gear 

is inside the cab and in order to get to it, the operator has to exit the 

machine on the righthand side, walk around to the lefthand side and enter 

through a pair of double doors. Respondent's Exhibit No. 3 depicts the side 

of the dragline that the operator would have to enter in order to approach 

the bull gear. Respondent's Exhibit No. 4 is a picture of the area of the 

citation after a guard has been attached~ The inspector stated that the 

874 
operator of the machine informed him that there had been a guard which he had 

removed for some·..r..eas..on aad-~ailed to replace. Respondent's witness 

Mr. Hawthorne explained that there is a lockout device near the bull gear and 

when that switch is pulled, none of the parts in that section of the cab move 

even though the engine is running. The witness contradicted himself five 

times when testifying as to whether the bull gear would be moving when the 

machine operator went into the area of the cab through the double doors. 

Whenever I would ask him if there were moving parts in that area, he would 

say no, but whenever the Solicitor's attorney asked the same question, he 

would either say yes or there might be. I am going to have to disregard his 

entire testimony concerning this aspect of the case. I find that this was a 

gear which could be moving and could cause injury in the absence of a guard. 

I find very little negligence on Respondent's part but as any unguarded 

moving gear of this type can be hazardous, a penalty of $30 is assessed. 

ORDER 

It is ORDERED that Respondent, within 30 days, pay to MSHA penalties 

in the total amount of $215. 

Distribution: 

Charles c. Moore, Jr. 

Administrative Law Judge 

Sandra D. Henderson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square Building, Dallas, TX 75202 (Certified 

Mail) 

Robert w. Wachsmuth, Esq., 311 Bank of San Antonio, One Romano Plaza, 

San Antonio, TX 78205 (Certified Mail) 

Richard L. Reed, Esq., 2600 Tower Life Building, San Antonio, TX 78205 

(Certified Mail) 

875 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW. JUDGES 

2 SKYLINE, 10th FLOOR 

·5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

14 APR 1980 

SECRETARY OF LABOR> Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 79-112 

Petitioner A.O. No. 15-06823-03007I 

v. 

.. Mine No. 3 

LEECO, INCORPORATED, 

Appearances: 

Before: 

Respondent 

DECISION 

George Drumming, Jr., Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner; 

Al Douglas Reece, Esquire, Manchester, Kentucky, for the 

respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty 

filed 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), on 

June 22, 1979, charging the respondent with one alleged violation of the 

provisions of 30 C.F.R. § 75.200 •. Respondent filed a timely answer contesting the proposed civil penalty and requested a hearing. A hearing was 

held in London, Kentucky, on December 13, 1979, and the parties appeared 

and were represented by counsel. The parties waived the filing of posthearing proposed findings and conclusions, were afforded an opportunity 

to present oral arguments in support of their respective positions at the 

hearing, and pursuant to notice, respondent was afforded an opportunity to 

take the deposition of a witness in London, Kentucky, on March 13, 1980. 

The deposition has been filed and is a matter of record in this proceeding. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing regulation as alleged in the proposal for assessment of civil penalty filed, and, 

if so, (2) the appropriate civil penalties that should be assessed against 

the respondent for the·alleged violation 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. 

876 
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 or 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. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S.C. § 801 ~seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et~· 

Discussion 

At the hearing, the parties stipulated to the following (Tr. 5-12): 

l. Respondent is subject to the provisions of the Act by virtue of the 

fact that it is the operator of the mine where the alleged violation took 

place. 

2. The mine in question is a small mining operation, employing app_roximately 31 people; and i:ft the time the citation issued it employed approximately 40 miners. 

3. The administrative law judge has jurisdiction of the proceeding, and 

the inspector who issued .the citation is an authorized mine inspector who 

validly issued the citation alleging a violation. 

4. Respondent's ability to remain in business will not be adversely 

affected by any civil penalty assessment made in this proceeding. 

5. Respondent's history of prior violations before A~gust 29, 1978, 

consists of 144 citations. 

6. Annual coal mine production for the No. 3 Mine in 1978 was 

101,720 tons, and in 1979, mine production was 74,825 tons. Annual mine production for Leeco, Incorporated for 1978 was 460,918 tons, and for 1979, the 

annual production was 489,679 tons. 

Section 104(a) Citation No. 127294, issued on August 29, 1978, citing 

a violation of 30 C.F.R. § 75.200, states: "Evidence indicated that the 

approved roof control plan was not being followed in that two employees were 

injured while mining coal inby roof supports in the left break of the No. 1 

room on the 002 working section." 

877 
The inspector fixed the abatement time as 8 a.m., August 30, 1978, and 

he terminated the citation on August 29, 1978, at 10:10 a.m., and the 

termination notiee- gives -the- following explanation for this action: "The 

approved roof control plan was discussed with all the employees by mine 

management concerning the requirements of the plan." 

Testimony and Evidence Adduced by the Parties 

Petitioner 

MSHA inspector Lawrence Spurlock testified as to his background and mining experience, and indicated that he is familiar with respondent's mining 

operations through prior inspections of their mines. He confirmed that he 

conducted a non-fatal roof fall accident investigation at the mine in question in August 1978, and he identified a copy of the accident report (Exh. 

P-2) which he wrote. In compiling his report, he spoke to certain people 

who witnessed the accident and who had information pertaining to it, reduced 

the interviews to notes, and then compiled his report from this data. 

Mr. Spurlock stated that he did not visit the actual scene of the accident 

and began his investigation a day after the accident occurred together with 

the inspector who issued the citation (Tr. 14-21). MSHA inspector Helton 

had previously issued the citation in question, and thetaccident report was 

in part compiled from information supplied by Mr. Helton (Tr. 27). During 

the course of the investigation, section foreman Dewey Brock was interviewed 

and stated that approximately 20 minutes before the roof fall he examined 

the roof visually and by ·the sound and vibration method and that the miners 

were under supported roof when he left the scene. Mr. Brock said nothing 

about any unsupported roof and indicated that he knew nothing about the 

roof-control requirement that the roof had to be supported before sidecuts were made (Tr. 28). 

In compiling his accident report, Mr. Spurlock stated that company management furnished a sketch of an area identical to the accident scene (Exh. 

P-11) and it indicates where the roof fell on the two victims (Tr. 29). In 

addition, the company submitted the required MSHA accident reporting forms, 

7000-1, and he identified copies of the reports filed by the company (Exhs. 

P-12 and P-13; Tr. 30). The accident reporting forms were received before 

he compiled his accident report (Tr. 34), and he also received information 

from the two injured miners, as well as the observations o-f the MSHA inspectors at the scene of the accident. 

On cross-examination, Inspector Spurlock testified that he was not in 

the mine when he conducted his investigation, that Inspector Helton had 

already issued the citation prior to the start of the accident investigation, 

and he did not know what evidence was available to Inspector Helton to support his citation (Tr. 38-41). Mr. Spurlock stated that his review of the 

roof-control plan indicated that persons were not to venture out from under 

the second row of roof supports, and that when side cuts were turned the roof 

area had to be supported. He identified the roof-control plan (Exh. P-3) and 

878 
stated that safety precaution No. 13 at page six of the plan is the provision applicable to the area cited, and he conceded that it is more or less 

a "boiler plate"--prov-ision-rhat appears in most mine roof-control plans. 

Precaution No. 13 provides that "before side cuts are started, the roof in 

the area from which it is turned, shall be supported with permanent supports according to the plan" (Tr. 42). However, he also alluded to another 

specific roof-control provision dealing with the belt section in question. 

He identified this roof-control plan provision as "sketch Nlimber 3, 

entitled -Cut Sequence for Room Panels" (Tr. 44). That provision provides 

that "the miner operator shall remain outby.the second row of support from 

the face during mining," but it does not denominate permanent support or the 

type of support requfred (Tr. 44). He also testified that there is one main 

belt entry for the section in question and that it was his understanding 

that it was bolted all the way up (Tr. 45). 

In response to bench questions, Mr. Spurlock stated that he learned of 

the accident on the day it occurred, that Mr. Helton issued his citation that 

same day, and that the accident investigation took place after the citation 

issued (Tr. 47). In further response to questions from respondent's counsel, 

Mr. Spurlock indicated that the accident occurred off a crosscut of one of 

the rooms of the belt entry and not in the belt entry ~J:self (Tr. 50). 

MSHA inspector Everett R. Helton testified as to his mining experience 

and background, indicated that he has conducted numerous roof fall accident 

inspections, and confirmed that he conducted an inspection at the mine in 

question on August 29, 1978. Prior to going underground that day, he issued 

a section 103(k) order in order to close the section so that the investigation could be conducted. He went directly to the roof fall area and found 

the state inspectors, section foreman Dewey Brock, and respondent's safety 

inspector Steve Adams on the scene. He examined the roof fall area and 

found an offset in the roof line where the rock had "tailed out over about 

halfway of the room." The entire area had been bolted,. but there were 

offsets in the bolts where the rock had fallen, and a board covered the area 

where the rock had fallen. This indicated to him that the roof area which 

fell had not been bolted and the roof bolts in the fall area were higher up 

in the roof than the other area where no rock had fallen. He identified 

Exhibit P-11 as a sketch of the fall area (Tr. 51-57). Respondent's counsel 

stipulated that the roof area which fell was not roof bolted at the time of 

the fall (Tr. 57). The area was bolted after the fall (Tr~ 58). 

Inspector Helton stated that he discussed the roof fall with the section 

foreman and safety inspector and advised them that it was his belief that the 

two men who were injured by the fall were working inby roof supports and that 

the roof had fallen because it was unsupported (Tr. 59). He also discussed 

the roof-control plan, and Mr. Adams assembled the men together and reviewed 

the roof-control plan with them. Neither Mr. Brock nor Mr. Adams objected 

to his conclusions as to how the injuries were caused and they did not discuss the roof fall further. He discussed the citation with Mr. Adams, and. 

since the roof had already been bolted, he followed MSHA policy by informing mine management that the roof-control plan would have to be discussed 

879 
with the employees. He was informed that some of the employees understood 

the plan, while ~thers did not, and he believed that Mr. Brock and Mr. Adams 

understood it (Tr-;-58-63)~ ~-

Inspector Helton testified that he was at the mine for 2 or 3 days after 

the accident gathering information for Mr. Spurlock's accident report and 

meeting with company and state officials for the purpose of upgrading the 

roof-control plan so that it could be made simpler and understandable, and 

it was later modified and changed (Tr. 65). The citation was issued because 

the roof was not supported by permanent roof supports as required by the 

plan and miners worked inby unsupported roof. Had the roof been supported 

by temporary supports on 5-foot centers, he believed the rock would not have 

fallen (Tr. 65). He also believed that mine management should have been 

aware of the potential danger of the unsupported roof, but he did not know 

whether the injured miners had returned to work (Tr. 66). Mine management 

exercised good faith abatement and cooperated with him in taking corrective 

action. Although Leeco, Incorporated operates other mines which he has 

inspected and is a large mine operator, the No. 3 Mine in question is a 

small mining operation (Tr. 67-69). 

Inspector Helton stated that he discussed the fact that respondent did 

not comply with the requirement for permanent roof support at the fall area 

with the safety director and section foreman, and as far as he can recall they 

made no responses (Tr. 69). He did not assist Mr. Spurlock in writing his 

accident report, and the notes that were made during his accident investigation and from which the report was prepared were lost after they were given 

to Mr. Spurlock (Tr. 70). . 

On cross-examination, Inspector Helton testified that while he was in 

the mine after the accident, he observed wooden timbers in place and they 

were being used. Aside from the immediate roof fall area which had been 

bolted after the fall, the remaining area had not been cleaned up or disturbed. He confirmed that he issued the citation because there was no roof 

support of any kind where the rock fell and he is sure that he asked mine 

management about this but received no response (Tr. 72-73). He has in the 

past observed roof falls which had been timbered or bolted, and it is 

possible for a roof to fall even if bolted or supported (Tr. 74). He did 

not interview the two injured miners, but a state inspector advised him 

that he had and that he was told that two timbers had been-installed at 

the fall area but were knocked out by the miner. Mr. Helton indicated that 

he may have observed some timbers lying in the area during his investigation, but he was not sure, and he did not know for a fact that two timbers 

were installed at the time the roof fell (Tr. 75-77). The roof-control 

plan requires permanent supports when a side-cut is made and that timbers 

constitute temporary support (Tr. 78). 

Inspector Helton ~tated that when he arrived at the mine to begin his 

investigation the day after the roof fall, the mining machine had been 

removed, but he could not recall whether the debris had been cleaned up. 

However, in order to remove the miner and the injured men, some of the 

880 
debris had to be removed, but he could not recall whether he observed any 

timbers at-the scene of the fall, and indicated that the roof was approximately 35 or 36 inches above the floor at the place where it fell (Tr. 114-

116). 

Respondent's Testimony 

David Johnson, safety director, Leeco, Incorporated, testified that his 

duties include conducting underground inspections, safety training, complying 

with MSHA's paperwork requirements, and attending MSHA close-out conferences. 

He was the company safety director in August 1978, and while he did not go 

underground to the scene of the accident, he conducted an inquiry of the 

accident of August 28, 1978, in his capacity as safety director, and he did 

so through Mr. Adams, a safety inspector who worked for him, reviewing the 

roof-control plan requirements, interviewing the injured miners, and attending the MSHA assessment conference. All of this was done in an effort to 

determine the cause of the accident (Tr. 120-127). 

Mr. Johnson stated that the roof-control plan at the mine had been 

approved by MSHA on December 3, 1976, and MSHA inspectors had previously 

observed the mining cycle and raised no questions about it. He indicated 

that roof-control provision No. 13 at page 6 of the plan--is- a- 1'stock" 

paragraph approved by MSHA in all plans, but that sketch No. 3, in the 

second paragraph on page 14 is the specific roof-control provision specifically applicable to the mine cutting sequence. That provision provides 

that the "[b]elt room entry shall be bolted before sidecuts are started. 

The miner shall not hole through into an unsupported area." The mine rooms 

have five entries, numbered consecutively from left to right, and the belt 

entry is located in the No. 3 entry. The side-cuts in question are in fact 

the breaks going to either the right or the left off the belt entry, and 

after the breaks are through and the adjacent entries advanced, the entry 

becomes the No. 2 entry and is no longer considered part of the belt entry. 

The accident in question occurred in the No. 1 entry at the break from the 

No. 1 to the No. 2 and it did not occur off the belt entry. The roofcontrol plan only requires that side-cuts off a belt entry be permanently 

supported (Tr. 127-129). 

Referring to the sketch of the accident scene, and relying on interviews 

with one of the injured miners (D. D. Smith), and Se.ction Foreman Brock, 

Mr. Johnson reconstructed the accident and indicated that tne continuous 

miner was operating in the No. 1 entry, and after taking out a 10-foot lift, 

the area was timbered and roof bolted and the miner continued on its cycle 

across the section so as to allow the roof-bolting crew time to come in and 

support the lift area which had been mined. The miner would then come back 

and timbers would be installed at the face of the coal before the miner 

continued mining in that area. Once the area is bolted, the timbers are 

removed so as not to impede the travel of the miner. In this case, timbers 

were installed at the break in question, and once bolted, they are removed, 

and this is why none were observed there after the fall (Tr. 130-133). When 

Mr. D. D. Smith came into the area to continue mining, timbers were erected, 

and he was operating the mining machine by remote control while standing 

881 
under the timbered roof, and while observing the machine in operation, 

the roof ~ell. Mr. Teddy Smith, the miner helper, was standing behind 

Mr. D. D. Smith when the roof fell (Tr. 130-137). -·~ -- _, - --

Mr. Johnson testified that according to roof-plan prov1s1on sketch 

No. 3, page 14, in the first paragraph, it was permissible to use timbers 

as roof support at the location where the rock fell, and this is exactly 

what is done on the right side of the section under the MSHA approved 

roof-control plan. Under the plan, timbers were acceptable as permanent 

roof support on the right side of the section because it was an airway and 

men and equipment did not travel through the area. He conceded that timbers 

are not acceptable as. permanent roof support on the left side of the section where the accident occurred, but they were installed in this case so 

that the operator could operate the miner from in between the timbers. 

After completion of the mining cycle, the miner is removed from the area, 

and the roof is bolted and the timbers are removed (Tr. 137-139). 

On cross-examination, Mr. Johnson stated that roof-control provision 

No. 13 provides for permanent roof supports before side cuts are started. 

Further, the face area of the side-cut must be supported by permanent supports before a side-cut is started. Paragraph No. 2, page 14 of the plan 

(Sketch No. 3), requires that belt room entries be roof bolted before sidecuts are started, and that was done (Tr. 147-151). Under the mining cycle 

in effect at the mine, after the roof bolts were installed, the miner 

returned and commenced mining the area where timbers were set, and once it 

is mined, it too is roof bolted and the timbers are removed. The roof fell 

because the timbers which were installed did not hold the roof draw slate 

(Tr. 161-162). 

In response to bench questions, Mr. Johnson explained that the miners 

who were injured were under timbered or bolted roof when the roof fell. The 

miner operator was manuevering and controlling the mining machine with an 

"umbilical cord" type cable and a "black-box" which controlled the machine. 

The machine itself was cutting virgin coal at the face under unsupported 

roof, and the roof where the cutting was taking place was not required to 

be supported (Tr. 170-174). At the time of the accident, the roof plan 

required the miner operator to be outby the second row of roof supports, 

and in his view the miner operator was in fact outby the second row of 

roof supports because he was under timber supported roof ~s provided by the 

plan provision at page 14. While the plan requires a room to be roof bolted, 

the area where the accident occurred was not a side-cut off the belt entry 

(Tr. 176-180). 

Mine foreman Dewey Brock testified that at the time of the accident on 

August 28, 1978, he was employed at the mine as a section foreman, and he 

recalled the roof fall. He examined the area where the fall occurred about 

20 minutes before the fall, took a gas test, sounded the roof, and he 

observed both Mr. D. D. Smith and Teddy Smith engaged in their mining duties. 

Referring to Exhibit P-11, the sketch of the accident scene, he explained the 

mining sequence which had occurred. Two cuts of coal had been mined, and one 

had been roof bolted and the other timbered. The new cut begun at the break 

882 
was not timbered or bolted where the miner started in. The last time he saw 

the two Mr. Smiths they were behind and under a roof-bolted area installing 

bits in the miner-in _preparation for starting the last cut of coal. Neither 

he nor anyone else suggested that they proceed inby any unsupported roof, 

and he did know_ that they were timbering around the miner because it was 

normal procedure to bolt the left run and timber the right one, and to take 

out enough timbers to permit the miner to go in and take out the last cut. 

He believed that this was permissible under the roof-control plan as he 

understood it. He saw the two men later when he helped remove them from the 

fallen rock. Some of the fall debris was cleaned up and removed after the 

fall in order to rebolt and make the area safe. He observed timbers in the 

area after the fall, and two timbers were still in front of the area after 

the rock fell and timbers were also found under the fallen rock. 

Mr. Brock stated that the mining method used at the time of the fall had 

been used for 2 years in the mine and the roof-control plan was regularly 

reviewed with the two men. Mr. D. D. Smith was an experienced miner and 

was not the type to take risks or venture under unsupported roof. The rock 

which fell was about 4 to 5 inches thick, about 3 feet wide, and about 

6 to 8 feet long. It fell in one piece, and had it not been for the fact 

that timbers were holding most of the rock weight, Teddy Smith would have 

been killed rather than injured. The rock did not burs-tthe timbers, but 

"just creeled 'them over" (Tr. 193-205). 

On cross-examination, Mr. Brock testified that the roof area he examined 

prior to the fall was at the location where the miner was going to start 

mining and it was about 10 feet wide. The spacing between the timbers which 

were installed was 4 feet. Once the miner starts in, timbers are taken· out 

so that it .can maneuver about. The miner is 20 feet long and 10 feet wide and 

the roof area immediately above it is not supported. After it finishes the cut, 

the miner is backed out, and two timbermen go in and timber the area, and the 

miner operator and his helper may also help in the timbering if additional 

timbers are needed. He had supervised Mr. D. D. Smith for 5 years prior to 

the accident in question and he has never known him to take short cuts. 

After installing the miner bits, Mr. Smith and his helper would then have 

proceeded to mine coal by moving forward into the cut taken by the machine 

and the area was timbered. Timbers, bolts, and cribs have been used to 

support the roof and he believed the roof fall was a "freak thing," and the 

timbers supporting the roof 4 feet from the rib "wasn't enough to really hold 

it up" (Tr. 205-215). 

Mike Eslinger testified that he is a member of respondent's safety 

department and indicated that he prepared the accident reports submitted to 

MSHA. He could not recall how he determined that the miners were 12 feet 

inby roof support as stated in the reports (Tr 235-236). In preparing the 

report, he relied on the citation which was issued and did not speak with the 

MSHA inspector, the section foreman, or the injured employees (Tr. 238). 

Inspector Spurlock was recalled and in response to a question as to the 

source of MSHA's Assessment Office finding that "the continuous miner operator and his helper were inby the last row of roof bolts under loose 

883 
unsupported roof and were caught by falling materials," he answered "I would 

say that he got it from that report right there. From reading this accident 

report" (Tr. 240) •. The inspector went on to explain his interpretation of 

the roof-control p1an -Tri. question and explained the mining cycle in use in 

the section at the time of the accident. Referring to sketch No. 3 of the 

roof-control plan, Exhibit P-3, he identified the cut labeled "11" as the 

location of the roof fall in question and described the location as a room 

off the belt entry, and that cut No. 11 was a side-cut into the adjacent 

room. Under the plan, the roof area to the right as shown on the sketch is 

permitted to be supported by timbers while the area to the left is under a 

full roof-bolting plan. In other words, there are two roof support plans in 

use for the same pillar on the same room section. Anytime a side-cut is 

turned off a room neck, whether it be a turn off the belt entry or whether 

it is a side-cut into a room off the belt entry, the roof must be permanently 

supported by roof bolts. 

Inspector Spurlock disagreed with the respondent's interpretation that 

sketch No. 3 only applies to belt entries and indicated that MSHA does not 

take that position insofar as the plan is concerned (Tr. 241-251). He indicated, however; that the use of timbers as temporary roof support is 

permitted in the area where the roof fall occurred and explained how they 

are used before the side-cut is actually mined (Tr. 253-255). He also indicated that the roof-control plan was revised 2 or 3 days after the accident 

so as to clear up the question of what constitutes a "belt room" (Tr. 276-

277). 

Deposition of Mr. D. D. Smith 

On March 13, 1980, the deposition of one of the miners injured in the 

roof fall in qu·estion was taken by respondent's counsel, and MSHA' s counsel 

was present and participated therein. Mr. Smith testified that at the time 

of the roof fall on August 29, 1978, he was operating a Jeffrey 101 continuous mining machine, and while turning to the right and backing up, a rock 

approximately "nine by ten by two to eight inches thick" fell. He stated 

that he was familiar with the roof-control plan in effect at the time and had 

received instructions with respect to that plan. At the time of the fall, 

timbers were set, and he personally installed two timbers, and the timbermen 

had also timbered the area in accordance with the plan. He was under the 

fall when it occurred and stated that the fall occurred under supported roof 

(Tr. 3-5). 

On cross-examination, Mr. Smith explained the remote-control operation 

of the continuous miner, and stated that the two timbers which he set were 

approximately 4 feet apart. The break which was being mined at the time of 

the fall was 22 feet wide, and he was turning the heading off the break, and 

except for the space where the 10-foot miner was operating in, the area was 

timbered, but not roof bolted. Mr. Smith stated further that he has 14 years 

of mining experience, and that the fall occurred when he encountered 

a roof area where slate and sandstone came together on the left side of the 

break being mined and "it just dropped loose" (Tr. 7). In his view, had the 

884 
roof been permanently supported the fall would not have occurred, and while 

he did not know whether the placement of the timbers had anything to do with 

the fall, he indicated thaCit was possible that the miner may have come in 

contact with the timbers causing a release of pressure on the roof (Tr. 8, 

11). He could not recall discussing the roof fall with any state or MSHA 

mine officials, but did discuss it with company official Dave Johnson 

(Tr. 8). 

Mr. Smith stated that prior to installing the temporary timbers he 

sounded the roof, and also sounded it after the timbers were installed. 

While operating the continuous miner, he was positioned on his knees in 

30-inch coal, and he was installing two safety timbers in front. of him, 

timbers were behind him some 3 feet away, and Teddy Smith was behind him. 

The roof-control plan required temporary timbers for the area being mined 

but did not require roof bolts (Tr. 11-12). 

Findings and Conclusions 

Fact of Violation 

In this case respondent is charged with one allege_c;l violation of the 

provisions of 30 C.F.R. § 75.200, which provides as follows: 

Each operator shall undertake to carry out on a continuing basis a pr.ogram to improve .the roof control system of 

each coal mine and the means and measures to accomplish such 

system. The roof and ribs of all active underground roadways, travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons from falls 

of the roof or ribs. A roof control plan and revisions 

thereof suitable to the roof conditions and mining system of 

each coal mine and approved by the Secretary shall be adopted 

and set out in printed form on or before May 29, 1980. The 

plan shall show the type of support and spacing approved by 

the Secretary. Such plan shall be reviewed periodically, at 

least every 6 months by the Secretary, taking into consideration any falls of roof or ribs. No person shall proceed 

beyond the last permanent support unless adequate temporary 

support is provided or unless such temporary support ~s not 

required under the approved roof control plan and the absence 

of such support will not pose a hazard to the miners. A copy 

of the plan shall be furnished to the Secretary or his 

authorized representative and shall be available to the 

miners and their representatives. [Emphasis added.] 

The citation issued by Inspector Helton charges the respondent with a 

violation of section 75.200 because "the approved roof control plan was not 

being followed in that two employees were injured while mining coal inby roof 

supports." During the course of the hearing, the inspector stated that the 

essence of the alleged violation is the fact that respondent failed to 

885 
install any permanent roof supports at the roof area which fell as required 

by the roof-control plan (Tr. 77), and respondent has stipulated that the 

roof area which fell was ~troof bolted at the time of the fall (Tr. 57). 

Section 75.200 requires a mine operator to adopt and maintain a roofcontrol plan suitable for its mine and it is well settled that any violation 

of the approved plan is also a violation of section 75.200. In addition, 

section 75.200 specifically prohibits anyone from proceeding beyond the last 

permanent roof support unless adequate temporary support is provided or 

unless such temporary support is not required by the plan and the absence of 

such temporary support. will not pose a hazard to the minerS:- My initial 

interpretation of the citation issued by Inspector Helton led me to believe 

that the theory of the alleged violation of section 75.200 rested on the fact 

that two miners ventured out from under a supported roof area inby to an area 

which was not supported, and while mining coal were injured when the unsupported roof under which they were working fell in on them. If this is in 

fact the case then a violation of'section 75.200 occurred when the 

two miners proceeded out from under roof support inby to an area which was 

not supported. 

During the course of the hearing and the testimony -pte-sented by Inspector Helton in support of the citation, it became obvious to me that he 

believed a violation of section 75.200 occurred because the respondent failed 

to install permanent roof supports in the roof area·which fell, and that 

since he believed the roof-control plan required the installation of such 

permanent supports, the failure to do so constituted a violation of the roofcontrol plan and section 75.200. In other words, although the narrative condition cited by the inspector, on its face, states that the roof-control plan 

was violated because two men were injured while working inby roof supports, 

thus leading me to believe that they ventured out beyond a supported roof 

area, the inspector's emphasis is placed on the allegation that failure to 

provide permanent supports for the roof area which fell as required by the 

roof-control plan constitutes a violation of section 75.200. When viewed 

in light of the conditions cited on the face of the citation, I believe 

these distinctions become critical to a determination of whether MSHA has 

carried its burden of proof in establishing the alleged violation as charged 

in the citation by a preponderance of the evidence. These distinctions also 

are critical to any determination of the question of negliggnce. 

In support of my initial interpretation of the citation, I relied on 

(a) the finding made by Inspector Spurlock at page 2 of his accident report 

(Exh. P-2), which states that "the roof control plan was not being complied 

with in that miners were allowed to work inby permanent support. A violation 

of 75.200"; (b) the narrative findings of the MSHA assessment officer who 

"specially assessed" this, citation (Exh. P-4), wherein he concludes that "The 

operator was cited for a violation of 75.200 because the roof-control plan 

was not complied with. Two employees were inby permanent roof support"; 

(c) the accident reports submitted by the respondent (Exhs. P-12 and P-13), 

indicating that the two injured miners failed to comply with the roof-control 

plan by being 12.feet inby the last row of roof bolts at the time of the 

886 
accident; and (d) the fact that as part of the abatement, employees were 

cautioned not to proceed beyond supported roof (Tr. 92). 

In order to clarify MSHA's position as to the condition which it 

believes constitutes a violation of section 75.200, I asked the inspector and 

counsel questions concerning the theory of their case (Tr. 87-103). Counsel 

conceded that the citation can be interpreted to charge the respondent with a 

violation for permitting two men to walk out from under unsupported roof, and 

it may also be interpreted to charge a violation of the roof-control plan 

for failure to support the roof area which fell (Tr. 96). 

Counsel stated further that the theory of his case is that two miners 

went into an area of unsupported roof, that mine management allowed them to 

proceed into that area, and that mine management failed to insure that the 

area was supported by failing to install permanent roof supports as required 

by the mine plan (Tr. 89-90). 

Inspector Helton testified that the unsupported roof which fell was 

required to be supported by permanent supports and that this should have 

been done at that point in time when mining was deep enough to allow the 

miner operator to go inby permanent supports. In the instant case, he 

indicated that the roof fall occurred inby the last row2f-permanent roof 

supports and that mining had proceeded approximately 4-:f feet in by, or 

one cut, and that the distance was such as to require the installation of 

permanent supports before continuing mining. When asked why he did not 

include this information as part of the narrative description on the face 

of the citation, he answered "that never entered my mind" (Tr. 91-93). He 

also indicated that the miner being used to cut coal was operated by remote 

control, but as long as the operator was under roof support, the miner could 

advance as far as the operator wanted it to as long as ventilation is 

maintained (Tr. 95). 

MSHA's counsel conceded that had mining stopped at the point where 

permanent roof supports were installed, there would be no violation. He 

believed the violation occurred when the two miners went out under unsupported roof, and it is his position that the presence of the section foreman in the area of unsupported roof shortly before the fall supports a 

finding that mine management was aware of the situation and should have 

taken steps to install permanent roof support before permitting mining to 

continue. In short, counsel stated that a prima facie case has been 

presented to establish that two miners were working under unsupported roof, 

and that Inspector Spurlock's accident report supports the conclusion that 

the "mine foreman was aware of the area and didn't know that the requirement, or wasn't aware of the requirement, didn't remember the requirement 

of having permanent supports before he allowed someone to go under there" 

(Tr. 101). 

MSHA's position is that the roof which fell was not supported at all, 

either by timbers or roof bolts, and Inspector Helton reached that conclusion 

on the basis of the fact that he observed no timbers in the area when he 

887 
arrived on the scene the next day, and the fact that the roof bolts which 

were installed at the fall area was different from the ones installed to 

make the roof ar0-a- sa-f~· ~o move into, thus leading him to conclude that the 

roof fall area was bolted after the fall octurred. Based on these facts, 

the inspector concluded further, that at the time of the fall, the two 

injured men were in fact working under unsupported roof. Respondent's position is that at the time of the roof fall the injured men were in fact 

positioned under roof which was supported by timbers, rather than roof bolts, 

and that based on its interpretation of the approved roof-control plan, that 

was permissible. MSHA takes the further position that the roof whic~ fell 

was not supported by permanent roof supports; that is, it was not roof bolted 

as required by the roof-control plan. Respondent takes the position that 

MSHA has not charged it with a violation of the roof-control plan for failing to install permanent roof support at the area which fell (Tr. 188-191). 

Respondent maintains that it is charged with failing to support the entire 

roof area which fell, which is not the case, and that the roof-control provision relied on by MSHA only requires permanent roof support by means of 

roof bolts before a side cut is made in a belt entry (Tr. 222-225). 

In closing arguments, MSHA's counsel took the position that the citation issued by Inspector Helton specifically charges the respondent with a 

violation of its roof-control plan in that respondent performed mining in 

the area where the roof fell before installing the r~quired permanent roof 

supports, and that this is supported by the testimony of Inspector Spurlock 

(Tr. 280-281). 

In his closing arguments, respondent's counsel took the position that 

the respondent is only charged with failing to follow its roof-control plan 

by permitting two employees to mine coal inby roof supports, and he maintains 

that respondent is not charged with a violation of its plan for failure to 

install permanent roof supports when mining a break or taking a cut in the 

area in question. Even assuming the fact that the citation can be interpreted as charging the latter, counsel argued further that the record adduced 

here indicates that the roof-control plan was subject to interpretation, 

that mine management made a reasonable interpretation that only belt entries 

where the belt was actually present were required to be permanently roof 

bolted, and that assuming a violation is found to have occurred, the confusion in interpreting the plan should be taken into account in mitigation 

of any penalty assessed (Tr. 279-280). 

Based on the testimony and evidence adduced, I find that petitioner has 

not established its contention that the roof area which fell was completely 

unsupported. While it may be true that the inspector did not observe any 

timbers in the fall area the day after the accident, the fact is that most 

of the area had been cleaned up, rebolted, and debris removed. This was 

done to facilitate the removal of the injured men and to secure the area 

from further falls. Thus, the only evidence that MSHA could produce to 

prove its contention that the roof was completely unsupported at the time 

of the fall is the after-the-fact observations of the inspector after the 

area had been cleaned up. 

888 
Although respondent conceded that the roof area which fell was not 

permanently supp·Q!'.'t~~- _by __ rQ.Qf bolts, its contention that it was supported 

by timbers is supported by the testimony of Section Foreman Brock who testified that while a new cut which had just begun was not supported, the roof 

area above the previous two cuts were roof bolted and timbered, that when 

he last observed the two injured miners they were under roof which was 

permanently supported by roof bolts, and that he sounded the roof area some 

20 minutes before it fell. He also testified that he .was at the scene 

assisting the injured men and observed timbers among the debris, as well as 

timbers still standing in front of the fall area. The deposition of injured 

miner D. D. Smith reflects that he and his helper were under timber-supported 

roof when the fall occurred. As a matter of fact, Mr. Smith testified that he 

personally installed two additional safety timber supports in front of where 

he was working at the time of the fall, that he sounded the roof after 

installing thos·e timers, and that the area behind him was also timbered. 

On the face of the citation, Inspector Helton indicates that the injured 

men were "inby roof supports". However, he does not further clarify this 

conclusion so as to make it clear whether the supports were permanent or 

temporary. In contrast, the conclusion make by Inspector Spurlock on 

page 2 of his accident report, Exhibit P-2, is that injuries resulted from 

a fall of "unsupported roof inby permanent supports", and he further concludes at page 3 t~at the injured men were performing work in an unsafe 

manner when they advanced "inby permanent supports to perform work other 

than installing supports". Compounding the confusion even further, is the 

accident report submitted by .the responc1ent, Exhibit P-12, which on its face 

states that Mr. D. D. Smith "was not in·compliance with roof control plan 

in that he was 12 feet inby the last row of bolts." Mr. Eslinger, the person 

who prepared the report, could offer no further explanation or clarification 

of his prior st~tement as shown in the report. 

Considering all of the testimony adduced in this proceeding, including 

the exhibits previously discussed, I cannot conclude that at the time of the 

fall the injured miners were in fact under totally unsupported roof. I find 

Mr. Brock's testimony to be credible and have no reason to disbelieve 

Mr. Smith's testimony as reflected in his deposition. Under the circumstances, I conclude that respondent has established the fact that at the 

time of the fall, the two injured men were working under_supported roof, and 

petitioner's contention to the contrary is rejected. I find further that 

the preponderance of the testimony and evidence adduced supports the conclusions that at the time of the fall (1) the roof area which fell was not 

roof bolted, but was supported by timbers; (2) the face of the cut which 

was being taken at the time of the fall was tot·ally unsupported; (3) the 

previous cut which was taken immediately before the one being mined at the 

time of the fall was supported by timbers; (4) the previous cut taken before 

the one which was timbered was roof bolted; (5) all roof areas immediately 

outby the fall area were either roof bolted or .timbered; and finally, (6) 

there is no credible evidence to support the conclusion that at the time the 

roof area in question fell, the two injured miners were working under a 

totally unsupported roof, or that respondent in any way allowed, instructed, 

or otherwise condoned the practice of miners working under unsupported roof. 

889 
Althaugh I find the citation issued by Inspector Helton to be less than 

a model of clarity, I believe the testimony and arguments presented by the 

parties supports 1:be ·c-oncluslon that from MSHA' s point of view, the thrust of 

the alleged violation is the assertion by MSHA that the applicable approved 

roof-control plan required the roof area which fell to be permanently supported by roof bolts, and the failure to do so exposed the miners working 

under that roof area to serious injuries from a fall which in fact occurred 

in this case. On the other hand, the respondent, while conceding that the 

roof area which fell was not permanently supported by roof bolts, nonetheless 

takes the position that the roof area in question was not required to be 

permanently supported.by roof bolts, and that under the applicable roofcontrol provisions and mining procedures in effect at the time in question 

the roof area in question was not required to be permanently supported, and 

since it was in fact timbered as required by the plan, no violation occurred. 

The approved roof-control plan of December 2, 1976 (Exh. P-3), which is 

the plan in effect at the time the citation in question was issued, contains, 

in pertinent part, the following roof support requirements: 

(1) Page 6, numbered paragraph 13, under the section 

entitled "Safety Precautions for Full Bolting and Combination Plans," states as follows: 

Before side cuts are started, the roof in the 

area from which it is turned shall be supported with 

permanent supports ~ccording to the approved plan. 

(2) Sketch No. 3, entitled "Cut Sequence for Room 

Panels," provides as follows: 

Miner operator shall remain outby the second row 

of support from the face during mining. No person 

shall advance inby the miner operator during mining. 

Belt (room)(entry) shall be bolted before side cuts 

are started. The miner shall not hole through to an 

unsupported area. 

All places are to be bolted on not more thaμ 

5-foot centers except for the area shown above 

(extreme right place). 

As indicated earlier, the citation issued in this case charges the 

respondent with a violation of section 75.200, because two miners violated 

the roof-control plan by working inby roof supports. It is clear that the 

failure by a mine operator to comply with a provision of an approved roofcontrol plan constitutes a violation of section 75.200, Peabody Coal Company, 

8 IBMA 121 (1977); Affinity Mining Company, 6 IBMA 100 (1976); Dixie Fuel 

Company, Grays Knob Coal Company, 7 IBMA 71 (1976). It is also clear that 

section 75.200 is violated if persons proceed beyond the last permanent roof 

support without providing adequate temporary support. 

890 
On the facts presented in this case, the inspector who issued the citation did not specifically s~~ out the specific roof-control plan which he 

believed was violated.··· The citation simply states that the plan was not 

being followed "in that two employees were injured while mining coal inby 

roof supports." By failing to designate the specific roof-control plan provision allegedly violated, it is somewhat difficult to ascertain from a 

reading of the condition cited the precise theory of MSHA's case. As indicated above, MSHA has failed to establish that the employees were in fact 

working under unsupported roof when the rock fell. I have found that 

respondent has established that at the time of the fall, the injured miners 

were located under supported roof. The critical question presented, however, 

is whether they were under a roof area supported permanently by roof bolts. 

If they were, then no violation has been established. If they were not, 

then a violation has been established, notwithstanding the inarticulate 

description of the condition on the face of the citation. The answer to 

this question is dependent on an interpretation of the applicable roofcontrol plan provision, and since respondent concedes that the roof which 

fell was not roof bolted, one must turn to the roof-control plan for further 

guidance. 

I have reviewed the applicable roof-control provisions in question, and 

while the witnesses expressed some confusion as to which provision is applicable, their asserted confusion lies in their attempts to differentiate 

certain distinctions in the use of such terms as "belt entry", "breaks", 

"rooms", "necks", and "cuts". One would think that in de.aling with such an 

important subject as a roof.control plan on a day-to-day basis, that MSHA, 

as the enforcing authority, and mine management, who have the primary 

responsibility for insuring the safety of miners who are expected to follow 

the plan, understand the plan and are able to communicate with each other 

as to precisely what the plan means and where it applies. After listening 

to the testimony of the witnesses in this proceeding, it seems obvious to 

me that at the time the citation issued, neither MSHA nor mine management 

was clear as to the precise meaning or application of the plan. My conciusion in this regard is further supported by the fact that the parties indicated that the roof-control plan has since been amended and clarified to 

clear up any confusion which existed at the time the citation issued. 

Upon review of paragraph No. 13 and sketch No. 3 of the roof-control 

plan, which the parties agree are the applicable plan provisions, I conclude 

that both provisions envision permanent roof bolting before side-cuts are 

mined in any room off a belt entry. While the exception stated in sketch 

No. 13 does permit timbering in certain areas to the right of any belt 

entry, it is clear to me that since the area where the fall occurred was 

to the left, the exception is clearly inapplicable. Further, when read 

together, both plan provisions require that the roof be supported permanently with roof bolts before any side-cuts are taken. On the facts 

presented in this case, it seems clear to me that at the time the cut in 

question was started, the roof was not permanently supported by roof bolts. 

Respondent conceded this was the case, and Foreman Brock indicated that the 

cut was totally unsupported, and that the previous cut was only timbered. 

891 
Further, Mr. Smith indicated that the area from which he was beginning the 

new cut was only timber~d-~nd not roof bolted, and while Mr. Johnson alluded 

to the requirements-of the plan, which permitted timbering on the right side 

of the entry, he obviously, and apparently erroneously, believed that the 

same requirements were permissible for the left side. However, it seems 

clear to me that while timbering was permissible on the right side, it was 

not so on the left, and he finally conceded this fact. What obviously 

occurred in this case is that timbers were installed, the miner moved out 

and went to another area of the:mine, and upon returning to the area in 

question proceeded to begin a new cut before removing the timbers and 

installing permanent roof support by means of roof bolting. In these circumstances, I conclude and find that by failing to permanently support the 

roof area immediately outby the roof fall area where the miners were working 

respondent violated its roof-control plan, and the citation is AFFIRMED. 

Negligence 

I find that the evidence and testimony adduced in this proceeding supports a finding that the violation resulted from a condition or practice 

which the respondent should have been aware of, and that the respondent 

failed to exercise reasonable care in the circumstances:- A mine operator 

is expected to know the provisions of his own roof-control plan and to 

insure that his work force is aware of it. Here, the testimony of the 

witnesses reflects much confusion as to the precise meaning of the plan. 

However, this fact.does not excuse the. violation nor can it serve as an 

absolute defense, and the fact that prior MSHA inspections did not result 

in any violations for the same practice is no excuse. On the facts here 

presented, it took a roof fall to alert the parties to the fact that the 

approved plan was obviously not a model of clarity, since the plan was 

changed to clear up the apparent ambiguity. This is not the best method 

to devise such changes, and it is hoped that this episode will impress the 

parties in this regard. 

As indicated earlier in this decision, I find no basis for finding that 

the respondent deliberately or recklessly disregarded its plan by permitting 

or condoning miners working under unsupported roof. In the circumstances 

here presented, I find that the violation resulted from ordinary negligence. 

Gravity 

The roof fall in question injured two miners. As stated b' Mr. Smith 

in his deposition, had the roof been permanently supported, the fall would 

probably not have occurred. I find that the violation was serious. 

Good.Faith Compliance 

The citation in question was timely abated and I find that the respondent exercised -good faith in achieving compliance. 

892 
Size of Business and Effect of Penalty on Respondent's Ability to Remain in 

Business 

The parties stipulated that the mining operation in question was small 

in size and that respondent will not be adversely affected by any civil 

penalty assessed by me in this matter, and I adopt these stipulations as 

my findings in this regard. 

Prior History of Violations 

'llle parties stipulated that respondent's history of violations before 

August 29, 1978, consists of 144 citations. Since the petitioner failed 

to introduce any further information concerning those prior violations, and 

in particular, whether respondent has had previous violations of section 

75.200, or the time frame within which they were issued, I cannot conclude 

that respondent's prior history is such as to warrant an increase in any 

civil penalty assessed on the basis of that prior history. 

Penalty Assessment 

I take note of the fact that the initial assessment made in this case 

by MSHA was on the basis of a "special assessment" aricCthat MSHA' s Assessment 

Office waived the use of the formula contained in 30 C.F.R. § 100.3, in 

making that initial assessment. I also take note that the initial assessment 

obviously took into account the allegations that the two employees were inby 

roof supports, and based on the Assessment Office findings, Exhibit P-·4, it 

is further obvious that the initial assessment took into ac.count the allegations that mine management somehow permitted or condoned this action. However, these assertions have not been established, and I am not bound by the 

Assessment Office evaluation of the citation, and after taking into account 

all of the evidence adduced in this de novo proceeding, including the circumstances surrounding the confused interpretation of the roof-control plan, 

and the criteria found in section llO(i) of the Act, I find that a civil 

penalty of $3,500 is warranted in this case. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount of $3,500 

for a violation of 30 C.F.R. § 75.200, as noted in Citati~n No. 127294, 

issued on August 29, 1978, and payment is to be made within' thirty (30) days 

of the date of this decision and order. 

4if'l-'/J! 

oeo/-ge ¥ Kouf'la~ ,!), ~~' Administrative Law Judge 

893 
Distribution: 

George Drummit).g , __ Jr._,... Esq. , U.S. Department of Labor, Office of the 

Solicitor, U.S. Courthouse, Room 2801 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Al Douglas Reece, Esq., Box 432, Manchester, KY 40741 (Certified Mail) 

Standard Distribution 

894 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

_i)Ffl~E OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

. 520.3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.. PR t 5 1980 

Petitioner 

Civil Penalty Proceedings 

Docket No. WEST 79-97-M 

A/O No. 04-00010-05004 

RIVERSIDE CEMENT COMPANY, 

Respondent 

Docket No. WEST 79-319-M 

A/O No. 04-00010-05010 

Docket No. WEST 79-320-M 

A/O No. 04-00010-05011 

Docket No. WEST 79-324-M 

A/O No. 04-00010 .... ()5012 

Docket No. WEST 79-95-M 

A/O No. 04-00010-05002 

Crestmore Mine & Mill 

DECISION 

ORDER TO PAY 

Appearances:. Malcolm Trifon, Esq., Office of the Solicitor, U.S. Department 

of Labor, San Francisco, California, for Petitioner, MSHA; 

Jerry Hines, Esq., Gifford-Hill and Co., Inc., Dallas, Texas, 

for Respondent, Riverside Cement Company. 

Before: Judge Merlin 

The above-captioned cases are petitions for the assessment of civil penalties filed by the Mine Safety and Health Administration against Riverside 

Cement Company. A hearing was held on March 18, 1980. 

At the hearing, the parties agreed to the following stipulations: 

(1) The operator is the owner and operator of the 

subject mine. 

(2) The operator and the mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 

1977. 

895 
(3) I have jurisdiction of these cases. 

(4) The inspector who issued the subject citations 

was a duly-authorrzed representative of the Secretary. 

(5) True and correct copies of the subject citations 

were properly served upon the operator. 

(6) Copies of the subject citations and terminations at issue in these proceedings are authentic and 

may be admitted into evidence for purposes of establishing their issuance but not for the purpose of 

establishing the truthfulness or relevancy of any of 

the statements asserted therein. 

(7) The imposition of any penalty in these proceedings will not affect the operator's ability to continue 

in business. 

(8) All the alleged violations were abated in timely 

fashion. 

(9) The operator is large in size. 

(10) With respect to history of prior violations, 

the operator had no history at the time the violations 

in Docket No. WEST 79-95-M were issued. 

The operator had nine violations issued against it at 

the time the first ten violations were issued in Docket 

No. WEST 79-97-M and sixty violations at the time the last 

two violations in that docket number were issued. The parties 

agree and I find that with respect to Docket No. WEST 79-97-M, 

the foregoing statistics constitute a moderate history. 

At the time the citations in Docket No. WEST 79-319-M 

were issued, ten violations had been issued against the operator which the parties agree and which I find constituted a 

low history. 

At the time the citations in Docket No. WEST 79-320-M 

were issued, there had been 116 violations issued against 

the operator. These violations in this docket number were 

issued sometime later than those set forth in the previous 

docket numbers. The parties agree and which I find that for 

the purposes of Docket No. WEST 79-320-M, the operator has a 

moderate history. 

At the time the citation in Docket No. WEST 79-324-M 

was issued, a total of 118 violations had been issued 

896 
against the operator which again the parties agree and I 

find consti-_!:'!te~- _a ~o_<!~rate history of prior violations. 

(11) The parties agree that the witnesses who will 

testify are experts in mine safety and health (Tr. 4-5). 

Citation Nos. 376289, 376292, 376295, 375274, 376335, 376337, 375290, 376343, 

376345, 376346, 376349, 379053 

The Solicitor moved to have settlements approved for these citations for 

the originally assessed amounts, which total $1,010. The Solicitor stated 

that ordinary negligence and ordinary gravity were involved in each of these 

citations. From the bench, I approved these recommended settlements after 

having reviewed typewritten summaries of all of these violations (Tr. 7-18, 

126). Approval of these settlements from the bench is hereby affirmed. 

Citation Nos. 375275, 376316, 375256 

The Solicitor moved to vacate these citations, stating that he did not 

believe there was sufficient evidenc'ii to prove the violations. From the bench, 

I granted these motions, stating that such a determinat-ion-is within the 

Secretary's discretion (Tr. 9, 17-18). The granting of the Solicitor's motions 

to vacate is hereby affirmed. 

Citation Nos. 376334, 376351, 376352, 371402, 379067 

The Solicitor moved to have penalties approved for these citations for 

the originally assessed amounts, which total $942. In its answer to the 

complaint, the operator had stated it did not contest these penalty assessments. After stating that the operator's agreement not to contest a penalty 

does not mean automatic approval for that penalty, I approved these recommended settlements after having reviewed typewritten summaries of these violations (Tr. i0-11, 14-15, 19). Approval of these penalties from the bench 

is hereby affirmed. 

Citation No. 376287 

This citation involved a failure to guard the drive shaft motor on two 

fans, a violation of 30 C.F.R. 57.14-1. The Solicitor moved to have a 

settlement approved in the amount of $74, reduced from the original assessment of $84. As grounds for the settlement, the Solicitor stated that 

gravity was less than originally determined, due to the fans being located 

at such a height that there was less chance of employee contact with the 

fans than had been originally determined. From the bench, I approved the settlement (Tr. 6-7). Approval of this settlement from the bench is hereby 

affirmed. 

897 
Citation No. 375273 

This citation involved-a buildup of materials around the electric motor 

located below the No. 3 bulk-loading station, a violation of 30 C.F.R. 

57 .12-30. The Solicitor moved to have a settlement approved in the amount 

of $62, reduced from the original assessment of $72. As grounds for the settlement, the Solicitor stated that gravity was less than originally determined since the area was used mainly by maintenance personnel rather than 

regular personnel. From the bench, I approved the settlement (Tr. 8-9). 

Approval of this settlement from the bench is hereby affirmed. 

Citation No. 375559 

This citation involved a failure to guard a rachet-type brake on an 

inclined conveyor, a violation of 30 C.F.R. 57 .14-1. The Solicitor moved 

to have a settlement approved in the amount of $300, reduced from the original 

assessment of $345. As grounds for the settlement, the Solicitor stated 

that gravity was less than originally determined since this piece of machinery 

is in a more remote location than originally determined, and there would 

therefore be less employee exposure to any potential danger. From the 

bench, I approved the settlement (Tr. 16-17). Approval of this settlement 

from the bench is hereby affirmed. 

Citation No. 376317 

This citation was issued when large amounts of material spills were 

observed on the screw conveyor floor at the No. 1 bag house, a violation of 

30 C.F.R. 57.20-3(b). The Solicitor moved to have a settlement approved 

in the amount of $100, reduced from the original assessment of $130. As 

grounds for the settlement, the Solicitor stated that gravity was less than 

originallydetermined since there was an adjacent walkway area which could be 

used by employees. From the bench, I approved the settlement (Tr. 17). 

Approval of this settlement from the bench is hereby affirmed. 

Citation No. 379059 

This citation was issued when the walkway along an elevated conveyor 

belt was found not to be not equipped with emergency stop_ftevices or guards, 

a violation of 30 C.F.R. 57.9-7. The Solicitor moved to have a settlement 

approved in the amount of $300, reduced from the original assessment of 

$325. As grounds for the settlement, the Solicitor stated that there was 

less gravity than originally determined as there was less employee use of 

this walkway than was originally thought. From the bench, I approved the 

settlement (Tr. 18). Approval of this settlement from the bench is hereby 

affirmed. 

Citation No. 379054 

This citation was issued when the cab and surrounding areas of the 

underground hydraulic scaler were not kept free of extraneous materials, a 

898 

I 

I 
violation of 30 c.F.R. 57.9-12. The Solicitor moved to have a settlement 

approved in the E~o~~~ o~ ~300, reduced from the original assessment of 

$325. As grounds for the settlement, the Solicitor stated that gravity 

was less than originally determined, since only one employee was exposed to 

this hazard. From the bench, I approved the settlement (Tr. 19). Approval 

of this settlement from the bench is hereby affirmed. 

Citation No. 376296 . 

At the hearing, counsel introduced documentary exhibits and testimony 

with respect to this·citation (Tr. 20-72). Upon conclusion of the taking of 

evidence, counsel for both parties waived the. filing of written briefs, proposed findings of fact and conclusions of law. Instead, they agreed to 

present oral argument and have a decision rendered from the bench (Tr. 73). 

A decision was rendered from the bench setting forth findings, conclusipns, 

and determinations with respect to the alleged violation (Tr. 81-84). 

Bench Decision 

The bench decision is as follows: 

This case is a petition for the assessment of a civil 

penalty. The alleged violation is of 30 C.F.R. 57.9-7 

which provides as follows: "Unguarded conveyors with walkways shall be equipped with emergency stop devices or cords 

along their full length." 

The facts are not in dispute. No stop cord or device 

was present along the belt conveyor of the operator's 

secondary primary crusher. 

Respondent's Exhibit 1 is a photograph of the belt conveyor and walkway in issue. The circumstances set forth in 

the picture and the description based upon the picture 

given by the operator's plant manager are not challenged. 

The issue presented for resolution is whether the belt 

conveyor was guarded. If it was unguarded, then a stop 

device or cord was required. If, on the other hand, the 

belt conveyor was guarded, then no stop cord or device was 

necessary and no violation existed. 

Alongside the bottom edge of the belt itself was an 

angle iron labeled "D" on respondent's Exhibit No. 1. The 

operator's plant manager expressed the opinion that "D" 

served as a guard or handrail when the cover over the belt 

was lifted. The MSHA inspector first stated that the belt 

conveyor had no guards, but upon final recall to the stand 

stated t_hat "D" would serve as a guard for the top portion_ 

of the belt conveyor. 

899 
Based upon the foregoing, I conclude that the angle 

iron "D" constituted a guard and that that part of the belt 

conveyor-afreC..ted by "D" was in fact guarded so that to this 

extent no stop cord or device was necessary and no violation 

existed. 

Directly under the belt conveyor are the troughing 

rolls which serve as supports and guides for the belt conveyor. Each troughing roll rotates on its own axis. The 

operator's plant manager who was a persuasive witness testified that troughing rolls are part of the belt conveyor. 

I conclude that the troughing rolls were not guarded. As 

the plant manager stated, the vertical angle irons described 

on respondent's Exhibit No. 1 as "A" were only for support 

and not for guarding. Therefore, this portion of the belt 

conveyor system was unguarded and a violation existed because 

there was no stop device or cord. 

I am most certainly not unaware of the hazards that 

result from unguarded or inadequately guarded movi~g parts. 

However, it must be stated that the Solicitor-'·s· ·evidence 

was a welter of confusion with respect to whether HSHA's 

guarding requirements have ever been reduced to writing. 

From all that has been given me at this hearing, it 

appears that no such writing exists. What is clear from 

the testimony is that MSHA has failed to advise the operator what guarding is required and what guarding would be 

acceptable. It is no answer to say, as has been suggested 

here today, that "common sense" supplies the answer. The 

Act and the mandatory standards are far too complicated 

for such a simplistic approach. The inspector's testimony 

clearly sets forth what type of guarding MSHA would accept. 

Why then does not MSHA tell the operator? 

From the testimony I have heard, it appears that MSHA 

has no written requirements regarding guarding and that 

operators are left to figure out for themselves what they 

should do. This approach to enforcement in a ne~tY affected 

industry can only breed resentment and resistance. Certainly 

the Secretary can do better. 

In addition, I would point out that I am not deciding 

that with respect to the top portion of the conveyor where 

I have found no violation, the angle iron "D" constitutes 

the most desirable form of guarding. However, if MSHA wants 

more, it should say so in writing and in a manner calculated 

to come to the attention of the operators. 

Because a violation exists, a penalty must be assessed. 

In accordance with the stipulations entered into by the 

900 
part~es which I have accepted, I find the operator large 

in size; th~ violation was abated in good faith; there is 

no history crf previous-violations; and the imposition of a 

penalty will not affect the operator's ability to continue 

in business. As already stated, I recognize that injury 

could result from lack of guarding for the trough rolls. 

Nevertheless, in determining the appropriate amount of a 

penalty, I must take into account the circumstances of 

this case already set forth herein, which indicate to me a 

very, very low level of negligence. The penalty amount 

which I have determined is calculated hopefully to bring 

about on the part of MSHA a change in the situation which 

presently exists. 

A penalty of $1 is assessed. 

The bench decision is hereby affirmed. 

Citation No. 376298 

At the hearing, counsel introduced documentary exhibits and testimony 

with respect to this citation (Tr. 84-116). Upon conclusion of the taking 

of evidence, the parties agreed to present oral argument and have a decision 

rendered from the bench (Tr. 116). A decision was rendered from the bench 

setting forth findings, conclusions, and determinations with respect to the 

alleged violations (Tr. 122-124). 

Bench Decision 

The bench decision is as follows: 

Th{s case also is a petition for the assessment of a 

civil penalty. The alleged violation here also is of 

30 C.F.R. 57.9-7. Thus, the issue presented is whether 

the cited portion of the belt conveyor was guarded. If it 

was unguarded, then a stop cord was required, but if it was 

guardep, then no such device was necessary and no violation existed. 

Unlike the prior citation, the facts in this matter are 

in some dispute. There is a conflict over whether mesh 

screening existed except for the areas cited. The inspector 

testified that there was mesh screening which constituted 

adequate guarding, except for three portions where it was 

missing. According to the inspector, the missing portions 

were what he cited. However, the plant manager emphatically 

stated there was no such mesh at the time in issue. I find 

the plant manager more credible on this point and I accept 

his testimony. 

901 
An angle iron labeled "A" on respondent's Exhibit 2 was 

present just above the trough rollers. The inspector testified that this angl~ ~~on guarded the small portion of the 

trough roller Which was behind the angle iron. The rest 

of the trough roller was exposed and in my opinion was 

unguarded. Moreover, as the plant manager admitted, a 

person could be injured if he struck himself on the area 

above the angle iron. For this reason also, I find the 

belt conveyor cited was unguarded and that therefore a violation existed. 

The operator's counsel has argued that a walkway was not 

present here. I reject that argument. I accept the definition of "walkway" given by Judge Moore in Acme Concrete Company, 

Docket No. DENV 79-123-PM dated December 18, 1979, wherein he 

stated that a walkway meant a place where a miner could reasonably be expected to walk, even if he had no job-related reas.on 

for going to the area in question. 

The stipulations regarding the statutory criteria of size, 

good faith abatement, ability to continue in business and 

history already have been set forth and apply here-as well. 

I recognize that injury could result from the situation 

presented. ~owever, in this instance, as in the prior citation, it appears that the operator did not know at the time 

exactly what was required of it. Certainly, the testimony 

of the plant manager graphically demonstrates this. Indeed, 

I accept th_e plant manager's testimony that in the past the 

angle iron had been accepted as adequate guarding. This, 

Qf course, does not mean that MSHA could not require or 

indeed should not have required additional guarding. However, the circumstances do demonstrate to me that the level 

of negligence was very, very low. Under the circumstances, 

I find this absence of any significant negligence a most 

significant factor. 

A penalty of $1 is assessed. 

The bench decision is hereby affirmed. 

Citation No. 376300 

The parties stipulated that the facts in this citation were the 

same or similar to the facts presented in Citation No. 376296. I therefore adopted the findings and conclusions I made with respect to Citation 

No. 376296 to this citation, and imposed a penalty of $1 (Tr. 124-125). 

Approval of this assessment is hereby affirmed. 

902 
Citation Nos. 376303, 376307 

The parties stipulated that the facts in these citations were the 

same or similar to the facts presented in Citation No. 376298. I therefore adopted the findings and conclusions I made with respect to Citation 

No. 376298 to these citations, and imposed a penalty of $1 for each violation 

(Tr. 125). Approval of these assessments is hereby affirmed. 

ORDER 

It is hereby ORDERED that as set forth herein, the vacation of certain 

citations from the bench be AFFIRMED and that the imposition of penalties 

from the bench with respect to other citations, also as set forth herein, 

be AFFIRMED. 

In accordance with 

to pay $3,093 within 30 

Distribution: 

the foregoing determinations, the operator is O'RDERED 

days~3~~ 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Malcolm Trifon, Esq., Office of the Solicitor, U.S. Department of Labor, 

450 Golden. Gate Avenue, Box 36017, San Francisco, CA 94102 (Certified 

Mail) 

Jerry Hines, Esq., Gifford-Hill Co., Inc., 8435 Stemmons Freeway, P.O. 

Box 47_127, Dallas, TX 75247 (Certified Mail) 

903 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

_ Qf_FICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52o.3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 1 5 198'l 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. Assessment Control Nos. 

Petitioner 

v. 

JOHNSON BROTHERS COAL COMPANY, INC., 

Respondent 

PIKE 79-41-P 

PIKE 79-107-P 

No. 1 Mine 

DECISION 

15-07371-03001 

15-07371-03003 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Gregory Johnson, Virgie, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to written notices of hearing dated June 19, 1979, and 

August 14, 1979, a hearing in the above-entitled consolidated hearing was 

held on August 8, 1979, and October 2, 1979, respectively, in Pikeville, 

Kentucky, under section 105(d) of the Federal Mine Safety and Health Act 

of 1977. 

This proceeding involves two Petitions for Assessment of Civil Penalty 

filed by MSHA. The Petition in Docket No. PIKE 79-41-P was filed on 

November 20, 1978, and seeks to have civil penalties assessed for 20 all.eged 

viol~tions of the mandatory health and safety standards by respondent 

Johnson Brothers Coal Company. The Petition in Docket No. PIKE 79-107-P was 

filed on March 6, 1979, and seeks to have civil penalties assessed for three 

alleged violations of the respirable-dust standards. MSHA--and respondent 

agreed to settle all issues in Docket No. PIKE 79-107-P as hereinafter 

described. Evidence was presented by MSHA and respondent with respect to 

the remaining 20 violations involved in Docket No. PIKE 79-41-P. 

Issues 

The issues raised by MSHA's Petition in Docket No. PIKE 79-41-P are 

whether Respondent violated any mandatory health and safety standards and, 

if so, what civil penalties should be assessed, based on the six criteria 

set forth in section llO(i) of the Act. Three of those criteria may be 

given a general evaluation in this proceeding, while the remaining three 

will hereinafter be considered individually when the parties' evidence 

904 
concerning those three criteria is considered in detail. The three criteria 

which may be given a general evaluation, namely, the size of respondent's 

business, the questjo~_pf .whether the payment of penalties would cause 

respondent to discontinue in business, and the question of whether respondent demonstrated a good faith effort to correct the violations after being 

advised that they existed, will be considered first. 

Size of Respondent's Business 

Respondent is a corporation owned by four brothers: Gregory, Gwendell, 

Garney, and George Johnson. The corporation operates an underground coal 

mine which produces coal under a contract entered into with Bethlehem Steel 

Corporation. The coal is sold to Bethlehem at a fixed price and Johnson 

Brothers' sales do not fluctuate with changes in the market price of coal. 

When the brothers began mining coal, they used a hand-held drill operated 

from a roof-bolting machine and transported the coal out of the mine in 

battery-powered scoops. Their equipment was at first borrowed, but they now 

make payments on their own equipment which was purchased by money loaned to 

them by the Pikeville Bank. 

When they first started mining in 1976, they employed qnly .12 miners 

and produced about 250 tons of coal per day. They now use a cutting machine 

and battery-powered scoops to haul coal to a conveyor belt. By 1979 they 

were employing about 23 miners and were producing about 400 or 500 tons 

per day from the Elkhorn No. 2 coal seam which measures about 40 inches in 

thickness at the place they are now mining. They produce coal on two production shifts and employ a maintenance crew on the third shift 

(Tr. 5-10; 190). 

On the basis of the facts given above, I find that respondent operates 

a small mine and that any civil penalties assessed in this proceeding should 

be in a low range of magnitude insofar as they are determined under the 

criterion of the size of respondent's business. 

Effect of Penalties on Operator's Ability To Continue in Business 

Respondent did not present any evidence at the hearing regarding its 

financial condition. The former Board of Mine Operations Appeals held in 

Buffalo Mining Co., 2 IBMA 226 (1973), and in Associated Drilling, Inc., 

3 IBMA 164 (1974), that when a respondent fails to introduce evidence 

regarding its financial condition, a judge may presume that payment of 

penalties would not cause it to discontinue in business. In the absence 

of any evidence to the contrary, I find that payment of penalties will not 

cause respondent in this proceeding to discontinue in business. 

Good Faith Effort To Achieve Rapid Compliance 

The inspectors testified with respect to each of the 20 violations 

alleged in this proceeding that respondent had demonstrated a normal good 

faith effort to achieve rapid compliance (Tr. 25; 38; 108; 124; 137; 171; 

905 
198; 221; 235; 285; 304; 315; 325; 337; 349; 376; 388). Therefore, I find 

that respondent demonstrated a good faith effort to achieve rapid compliance 

with respect to all .alleged--violations and respondent will be given full 

credit for that mitigating factor when each penalty is hereinafter assessed. 

Consideration of Remaining Criteria 

The remaining three criteria, namely, the gravity of each alleged violation, respondent's negligence, if any, and respondent's history of previous 

violations, if any, will be considered below-in connection with a detailed 

evaluation of the evidence presented by both MSHA and respondent. 

The Contested Case 

Docket No. PIKE 79-41-P 

Notice No. 1 RDM (6-4) 1/7/76 § 75.1710 (Exhibit 2) 

Notice No. 2 RDM (6-5) 1/7/76 § 75.1710 (Exhibit 12) 

Notice No. 1 RDM (6-10) 4/16/76 § 75.1710 (Exhibit 22) 

Findings. Depending upon the height of the mine in which the equipment is being operated, section 75.1710 requires that electric face equipment, including shuttle cars, be equipped with cabs or···canopies to protect 

the miners operating such equipment from roof falls and rib rolls. The 

inspector stated that MSHA added 12 inches to the height referred to in the 

regulations in order to allow the canopies to pass under roof-supporting 

,facilities such as crossbars, headers, and roof bolts. On January 7, 1976, 

and April 16, 1976, when the notices of violation listed above were written, 

canopies were required to be installed on equipment used in mines which 

were 36 inches or more than 36 inches in height (Tr. 36; 54; 62). Since 

the actual mining height in respondent's No. 1 Mine was 45 inches, respondent violated section 75.1710 by failing to install canopies on two Kersey 

scoops and an Acme roof-bolting machine which were being used in the face 

area of its mine (Tr. 16-17; 27-28; 32-33). The violations were moderately 

serious because a usable canopy would have provided some protection, but 

roof conditions were good and the miners were not exposed to a strong likelihood of injury by the absence of canopies (Tr. 17). 

The violations were associated with a low degree of negligence because 

respondent made some effort to obtain canopies and it is _extremely doubtful 

if the technology existed in January or April of 1976 to provide usable 

canopies for the Kersey scoops and Acme roof-bolting machine which respondent was operating in actual mining heights averaging 45 inches (Tr. 95-97). 

Actual mining heights in respondent's mine had dropped to 42 inches or less 

by the time the Secretary had issued an amendment suspending the requirement 

that canopies be used in mines whose actual height was 42 inches or less 

(42 Fed. Reg. 34876). Therefore, the notices of violation here involved 

were terminated because canopies ceased to be required in respondent's 

42-inch mine (Tr• -72.). 

Conclusions. The former Board of Mine Operations Appeals held in 

Buffalo Mining Co., 2 IBMA 226, 259 (1973), Associated Drilling, Inc., 

3 IBMA 164, 173 (1974), and Itmann Coal Co., 4 IBMA 61 (1975), that if the 

906 
materials needed for abatement of a given violation are not available, no 

notice of-violation should be written. Additionally, the Board held in 

P & P Coal Company, -~ :IBMA. __ 86 (1976), that the defense of impossibility to 

obtain equipment is an affirmative defense which can be considered only if 

respondent raises that issue itself. In this proceeding, respondent's 

witness testified that he had tried unsuccessfully to acquire a canopy for 

his Acme roof-bolting machine, but canopies were not being made for that 

machine in 1976 (Tr. 95). Although Kersey began to make canopies for its 

scoop in 1976, respondent's miners were unable to use that canopy in the 

coal height in respondent's mine and its miners resented even being asked 

to try using it (Tr. 97-98). 

I am very much inclined to believe that respondent should be found not 

to have violated section 75.1710 under the Board's holdings in the cases 

cited above. It is a fact, however, that the Board also held in the P & P 

case, supra, that MSHA is not required to prove availability of equipment 

as a part of its case. I have found violations of section 75.1710 primarily 

because respondent's witness stated on cross-examination that he had not 

tried to obtain canopies until after the notices of violation were written 

(Tr. 91). Respondent's witness also stated that he had filed petitions for 

modification after the notices were written (Tr. 90). 

The evidence shows that if respondent had insisted on its miners using 

the ill-fitting canopies which were available for Kersey scoops in 1976, the 

miners would have been exposed to at least as much chance of injury from 

trying to see out from under the canopies as they would have been exposed 

to injury by a possible roof fall by failure to use canopies (Tr. 97-98). 

Because of the extenuating circumstances discussed above and shown in 

the hundred pages of transcript relating to the difficulties of obtaining 

and using canopies in 1976, a penalty of $1 will be assessed for each violation of section 75.1710. There is no history of previous violations to 

be considered. 

Citation No. 69245 4/17/78 § 75.316 (Exhibit 29) 

Findings. Section 75.316 requires each operator of a coal mine to 

adopt and follow a ventilation system and methane and dust control plan 

approved by the Secretary. Respondent violated section 7~.316 by failing 

to install and maintain permanent stoppings to and including the third connecting crosscut outby the face as required by respondent's ventilation 

plan. On the intake side of the beltway, the last permanent stopping was 

five crosscuts from the face and on the return side of the beltway, the 

last permanent stopping was six crosscuts from the face (Tr. 103-105). The 

violation was only moderately serious because the inspector found a volume 

of 10,200 cubic feet of air per minute in the last open crosscut which was 

1,200 cubic feet in excess of the required 9,000 cubic feet. Therefore, the 

miners were being supplied with an adequate amount of oxygen and sufficient 

air velocity to carry away any noxious fumes which might have accumulated 

(Tr. 107). Besides assuring adequate ventilation, the permanent stoppings 

907 
prevent smoke from a possible fire on the beltline from being carried to 

the working face (Tr. 115). Since respondent's No. 1 Mine has never been 

known to release any meas'!!a~Je amount of methane (Tr. 10; 105), there was 

little chance that-~-~iir;ould come into the beltline from the return and 

cause an explosion (Tr. 113-114). Respondent was negligent in failing to 

erect the permanent stoppings as required by its ventilation plan. 

Conclusions. Since the inspector believed that the violation was relatively nonserious in the circtunstances prevailing at the time the citation 

was written, the penalty should be assessed primarily under the criterion 

of negligence. Respondent's witness failed to describe any extenuating 

circtunstances in this instance. Considering that a small mine is involved, 

a penalty of $50 will be assessed for this violation of section 75.316. The 

penalty will be increased by $10 to $60 under the criterion of history of 

previous violations because respondent has violated section 75.316 on two 

prior occasions (Exh. 1). 

Citation No. 69246 4/17/78 (Exhibit 31) 

Findings. Respondent violated section 75.316 a second time on April 17, 

1978, by failing to install and maintain line curtains to within 10 feet 

of the point of deepest penetration in all entries from which coal was being 

produced as required by respondent's ventilation plan. Respondent was producing coal from eight entries and the line brattices were installed to 

within 10 feet of the face in only one of the eight entries (Tr. 121-122). 

The inspector believed the violation to be nonserious because he found that 

there was adequate ventilation in the working faces without maintenance of 

the curtains to within 10 feet of the faces (Tr. 122). Respondent was negligent in failing to follow the provisions of its ventilation plan (Tr. 128). 

Conclusions. The inspector's belief that adequate ventilation was 

being provided again requires that the penalty be assessed primarily under 

the criterion of negligence. The inspector stated that the instant citation 

was written during the first inspection to be made after respondent's ventilation plan had been changed to require that line curtains be maintained to 

within 10 feet of deepest penetration in all eight entries regardless of 

whether coal was actually being cut, mined, or loaded in those entries. The 

inspector said that the above-described requirement was an unusually strict · 

provision and that MSHA subsequently retracted that provision (Tr. 125-128). 

Respondent should have been aware of the provisions in its ·awn ventilation 

plan, but the fact that MSHA later changed the provision to a less demanding 

requirement shows that an honest misunderstanding could have caused respondent to maintain only the ntunber of curtains which would have been required 

under the plan as it existed prior to the short-lived amendment (Tr. 128). 

Therefore, a penalty of only $25 will be assessed for this violation of 

section 75.316. The penalty will be increased by $10 to $35 because respondent has previously violated section 75.316 on two occasions (Exh. 1). 

908 
Citation No. 69247 4/17/78 § 75.316 (Exhibit 32) 

Findings. Respondent violated section 75.316 again on April 17, 1978, 

because a curtain had been torn down where the battery-charging station was 

located. The gravity of respondent's failure to maintain the curtain, as 

required by the diagram shown on the mine map which is a part of respondent's ventilation plan, is that any toxic fumes from the battery-charging 

station could.be carried to the working face if other curtains near the 

working face were also down. The violation was nonserious because no curtains at the face were down at the time the citation was written. Respondent 

was negligent for faiiing to maintain the curtain at the battery-charging 

station (Tr. 134-137; Exh. 61). 

Conclusions. A great deal of testimony (28 pages) was given with 

respect to the gravity of this violation of section 75.316, but since the 

inspector had stated at the very outset of his direct testimony (Tr. 135), 

that he did not consider the violation to be serious, the extensive testimony established nothing constructive. In view of the nonserious nature of 

the violation, the penalty should primarily be assessed under the criterion 

of negligence. It appears that a scoop operator may have torn down the 

curtain without rehanging it and without reporting it to the section foreman 

(Tr. 141). It is respondent's obligation to maintain the ven.tilation curtains at all times, but the inspector did not know how long the curtain had 

been down, so there may have been a low degree of negligence in respondent's 

failure to have replaced the curtain before its absence was detected by the 

inspector. In view of the nonserious nature of the violation and the low 

degree of negligence, a penalty of $15 will be assessed for this violation 

of section 75.316. The penalty will be increased by $10 to $25 because 

respondent has previously violated section 75.316 on two occasions 

(Exh. 1). 

Citation No. 69248 4/17/78 § 75.400 (Exhibit 33) 

Findings. Section 75.400 provides that coal dust, including float coal 

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

materials shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment. Respondent violated section 75.400 

because loose coal ranging from 1 inch to 12 inches in depth had accumulated 

at a point beginning 40 feet outby spad No. 1233 for a distance of 240 feet 

in the No. 3 entry. Two dust samples taken in the area of the accumulations 

had an incombustible content of from 36 to 37.4 percent instead of the 

required 65 percent incombustible. The accumulations were up to 4 feet wide 

and had been caused by spillage from the scoops used to haul coal to the 

conveyor belt (Tr. 162-168; Exh. 34). The violation was serious because 

there were trailing cables in the vicinity of the accumulations and they 

were a potential source of an explosion or fire (Tr. 170). Respondent was 

negligent in failing to keep the loose coal cleaned up (Tr. 170). 

Conclusions. Respondent's witness claimed that their cleanup program 

requires them to stop about a half hour before the end of each shift for the 

purpose of cleaning up any loose coal which might have accumulated during the 

shift (Tr. 178). Respondent's witness, however, could not recall what the 

909 
appearance of the mine was on April 17, 1978, when the citation ·was written 

and respondent's witness conceded that it was possible that the cleaning 

program may not have--beerrfo!lowed on that day (Tr. 181-182). Since the 

violation was serious and respondent was negligent, a penalty of $125 would 

have been assessed for this violation, but since respondent has previously 

violated section 75.400 on 5 prior occasions, the penalty will be increased 

by $25 to $150 under the criterion of respondent's history of previous 

violations (Exh. 1). 

Citation No. 69249 4/17/78 § 75.400 (Exhibit 35) 

Findings. Respondent violated section 75.400 again on April 17, 1978, 

by allowing loose coal to accumulate on each side of the belt line to a 

depth of from 1 to 12 inches and to a width of about 2 feet on the left side 

and to a width of about 6 feet on the right side of the belt. The violation 

was only moderately serious at the time it was observed by the inspector but 

the accumulations could have become serious if they had not been cleaned 

up at the time they were observed by the inspector. Respondent was negligent in failing to prevent the spillage at the belt tailpiece from accumulating (Tr. 194-198). 

Conclusions. Respondent's witness objected to the-inspector's having 

cited respondent for two violations of section 75.400 in view of the fact 

that the coal accumulations described in the preceding citation ended only 

about one crosscut from those described in the instant citation 

(Tr. 200-202). The former Board of Mine Operations Appeals held in Old 

Ben Coal Co., 4 IBMA 198 (1975), and Clinchfield Coal Co., 6 IBMA 3lg-(1976), 

that an operator may be assessed penalties for several violations of the 

same section of the regulations so long as the respondent has been made 

aware of the separate citations and so long as MSHA's Petition for Assessment 

of Civil Penalty gives the operator notice that separate penalties would be 

sought for the different violations. The Petition for Assessment of Civil 

Penalty in Docket No. PIKE 79-41-P specifically requested that penalties 

be assessed for the separate violations of section 75.400 alleged in Citation 

Nos. 69248 and 69249. Therefore, I conclude that the existence of two separate violations were proven by MSHA and that respondent received notice 

prior to the hearing that a separate penalty. would be sought for each violation ·of section 75.400. The second violation was considered to be less 

serious than the first violation, so a penalty of $75 would have been 

assessed for the second violation, but since respondent has violated section 

75.400 on five prior occasions, the penalty will be increased by $25 to $100 

because of respondent's history of previous violations. 

Citation No. 69250 4/17/78 § 75.503 (Exhibit 36) 

Findings. Section 75.503 requires that all electric equipment taken 

into or used inby the last open crosscut be maintained in a permissible 

condition. Respondent violated section 75.503 because there was an opening 

of .005 of an inch between the cover and the contactor box on the Acme 

roof-bolting machine being used inby the last open crosscut. Although no 

methane has ever been detected in respondent's mine, the inspector believed 

910 
the violation'. to be potentially serious because it is always possible for 

methane to be encountered in mines believed to be nongassy. Respondent was 

negligent for fiiling---to-m-ake certain that the roof-bolting machine was permissible (Tr. 219-221). 

Conclusions. The inspector believed that there was only a remote possibility that the violation could have produced an explosion. The violation 

was abated in a few minutes by the tightening of the bolts on the cover of 

the contactor box. Considering that a small operator is involved, a penalty 

of $35 would have been assessed for this violation of section 75.503, but 

Exhibit 1 shows that respondent has violated section 75.503 on three prior 

occasions. Therefore the penalty will be increased by $15 to $50 because 

of respondent's history of previous violations. 

Citation No. 69251 4/18/78 § 75.316 (Exhibit 37) 

Findings. Respondent violated section 75.316 by using a temporary 

stopping inby spad No. 2063 to separate the intake entry from the neutral 

entry at a point where a permanent stopping should have been constructed 

(Tr. 228-232; 253-254). The violation was potentially serious because production activities turned to the right off the main en~:r;ies-at the point 

where the temporary stopping was located (Tr. 232). Failure to- use a permanent stopping could have prevented an adequate amount of air from going 

to the working faces (Tr. 233). Neither the inspector nor respondent's witness had checked the air velocity on the day Citation No. 69251 was written 

and no finding can be made as to whether any lack of air resulted from 

respondent's use of a temporary stopping (Tr. 267-268). There was considerable confusion in the testimony of both the inspector and respondent's 

witness as to whether respondent was negligent in using a temporary stopping 

while respondent was in the process of installing two airlock doors at the 

place where the temporary stopping existed (Tr. 250; 266). Two airlock 

doors were installed to abate the violation (Tr. 272-276). 

Conclusions. The testimony regarding this violation extends for 

49 pages (Tr. 227 to 276) and seems never to be conclusive as to exactly 

what respondent's witness was trying to explain. About the only conclusion 

whic~ I can make for certain is that a violation occurred, but the generalized and conflicting statements of both the inspector and respondent's 

witness do not show that the violation was actually serious or that respondent was negligent in having a temporary stopping at the time changes were 

being made in the mine map and ventilation procedures when Citation 

No. 69251 was written. Therefore, I would assess a·penalty of $10 for this 

violation, but since Exhibit 1 shows that respondent has violated section 

75.316 on two prior occasions, the penalty will be increased by $10 to $20 

because of respondent's history of previous violations. 

Citation No. 69252 4/18/78 § 75.503 (Exhibit 38) 

Findings. Respondent violated section 75.503 because there was an 

opening of .005 of an inch between the panel board and its cover and 

because there was a loose clamp on the conduit which covers the battery 

lead wires. The inspector did not consider the violation to be serious 

911 
because an explosion was unlikely in view of the fact that no methane has 

ever been detected in respondent's No. 1 Mine, but the inspector believed 

that it was impot:_tan~ __ that--e.quipment be kept permissible because it is never 

possible to be sure that methane will not be released. Respondent was negligent in failing to maintain the scoop in a permissible condition. The 

inspector believed that the required weekly inspection of electrical equipment ought to be made more frequently than once a week if permissibility 

violations are occurring between weekly inspections (Tr. 278-285). 

Conclusions. Respondent's witness resented being cited for his failure 

to make certain that the. clamp was tightly fixed on the conduit because he 

said that the scoop was delivered from the factory with the clamp loose and 

that the only way the clamp can be made to stay on the soft conduit is to 

wrap the conduit with electrical tape to make the conduit large enough in 

circumference for the clamp to adhere to the conduit (Tr. 289-298). The 

regulations require all electrical equipment used inby the last open crosscut to be maintained in a permissible condition. Exceptions to the regulations cannot be made just because the factory produces an inferior product. 

Respondent's complaints regarding the delivery of defective equipment from 

the factory should be directed to the manufacturer of the equipment. Miners' 

lives may not be put in jeopardy just because a manufacture~ is careless in 

the way its new equipment is designed or assembled. Inasmuch as the inspector considered the violation to be nonserious, the penalty should be 

assessed primarily under the criterion of negligence. Since respondent knowingly took the equipment underground without tightening the clamp 

(Tr. 291-292), there-was a high degree of negligence. Therefore a penalty 

pf $80 would have been assessed for this violation, but Exhibit 1 shows that 

respondent has violated section 75.503 on three prior occasions. Therefore 

the penalty will be increased by $15 to $95 because of respondent's history 

of previous violations. 

Citation No. 69253 4/18/78 § 75.1713 (Exhibit 39) 

Findings. Section 75.1713 provides that each operator shall have an 

adequate supply of first-aid equipment underground. Section 75.1713-7 lists 

12 items which must be included in the first-aid equipment. Respondent's 

first-aid equipment lacked three of the 12 items, namely, eight 4-inch bandage compresses, eight 2-inch bandage compresses, and one cloth blanket. 

The violation was serious because the compresses would hav~ been needed if 

a miner had been badly cut in an accident. Respondent was negligent in failing to maintain the first-aid equipment (Tr. 301-306). 

Conclusions. Respondent's witness conceded that the three items were 

missing and stated in defense of his oversight that miners sometimes took 

first-aid supplies without advising the section foreman that the supplies 

had been taken (Tr. 310). Inasmuch as the violation was serious and was 

associated with ordinary negligence, a penalty of $50 would have been 

assessed for this violation of section 75.1713. The inspector stated that 

respondent had a complete supply of first-aid equipment when he previously 

inspected the mine (Tr. 303). Nevertheless, Exhibit 1 reflects that respondent has violated section 75.1713-7 on a prior occasion. Therefore the 

penalty of $50 will be increased by $5 to $55 because of respondent's 

history of previous violations. 

912 
Citation No. 69254 4/18/78 § 75.1718 (Exhibit 40) 

Findings. Secj:_io~l__75 .J UB requires each operator to provide an adequate 

amount of drinking water in active workings of his mine and requires that 

the water be stored and protected in sanitary containers. Respondent violated 

section 75.1718 by failing to provide any drinking water in the working section. 

The inspector· considered the violation to be moderately serious because he 

thought water. might be needed· if someone were to get choked or need water 

to wash dirt out of one's eyes. Respondent was negligent for failing to provide 

drinking water (Tr. 314). 

Conclusions. Respondent's witness stated that he had eye wash in the 

first-aid kit and claimed water was not needed for preventing a person from 

choking. Respondent said water was kept on the section in a cooler until 

concrete mix was found in it one day. Respondent's witness said he concluded from that experience that the men did not want to be supplied with 

water as they. brought their own water into the mine with them. After the 

instant citation was written, respondent resumed providing drinking water. 

Respondent's witness also claimed that water would not be needed in case 

the men should be trapped by an explosion because the mine.rs would run out 

of oxygen before they ran out of water (Tr. 315-318). Respon~ent's excuses 

for not providing water have little merit. Since the vio1ation· was moderately serious and respondent deliberately declined to provide drinking water 

in the working section, a penalty of $50 will be assessed for this violation. 

There is no history of previous violations to be considered. 

Citation No. 69255 4/18/78 § 77 .410 (Exhibit 41) 

Citation No. 69256 4/18/78 § 77.410 (Exhibit 42) 

Citation No. 69257 4/18/78 § 77.410 (Exhibit 43) 

Findings. Section 77.410 requires trucks, front-end loaders and other 

mobile equipment to be provided with alarms which will sound a warning when 

such equipment is put in reverse. Citation No. 69255 was written for 

failure of a Ford truck to have any back-up alarm at all. Citation No. 69256 

was written for failure of a GMC truck to have an operable back-up alarm. 

Citation No. 69257 was written for failure of a front-end loader to have an 

operable back-up alarm. All three violations occurred (Tr. _320-324). The 

two trucks belonged to independent contractors hired by respondent to haul 

its coal to its purchaser's tipple, but the front-end loader was owned by 

respondent. The Commission has held that an operator may be cited for violations of independent contractors (Secretary of Labor (MSHA) v. RepublicSteel Corp., 79-4-4, 1 FMSHRC 5, and MSHA v. Old Ben Coal Co., 79-10-7, 

1 FMSHRC 1480). Therefore, it is appropriate to assess a penalty against 

respondent for all three violations. All three violations were only moderately serious because there is room for only one truck at a time at respondent's loading area and each truck driver operates the end loader to dump 

coal in his own truck so that there is no reason for a person to walk behind 

the trucks or end loader when they are backing up (Tr. 328). Respondent was 

negligent in failing to assure that the trucks and end loader were equipped 

with operable back-up alarms. 

913 
Conclusions. There is no evidence to show how long the end loader and 

GMC truck had been used with inoperable back-up devices, so there is less 

reason to find a~~i&h.degre.e of negligence for the GMC truck and end loader 

than for the Ford truck which had no back-up alarm at all. Respondent's 

witness complained that the back-up alarms made so much noise that they were 

a psychological hazard for the truck drivers and that he had had at least 

20 requests by drivers seeking permission to disconnect the back-up alarms 

(Tr. 327-328). Only 4 or 5 minutes are required to load a truck with a 

front-end loader. The time required to back out of the loading area is also 

short. In such circumstances, the time that any operator is exposed to the 

noise of the back-up alarm is short. Therefore, I find little merit in 

respondent's defense.. The same is true with respect to his claim that the 

diesel engines in the equipment make so much noise that anyone who would 

fail to hear the engines would also fail to hear the back-up devices 

(Tr. 328). It is the difference in sound of the back-up alarm, as contrasted with the roar of diesel engines, which gives a person warning that 

equiμnent is backing up. Consequently, there is no merit to respondent's 

claim that a person who can not hear a diesel engine would ignore the sound 

given off by a .back-up alarm. 

Although the violations were only moderately serious, there was a high 

degree of negligence in each case because respondent's-attitude about seeing 

that the alarms are operative amounts to indifference about providing the 

safety such alarms are intended to afford persons who may be exposed to the 

hazard of vehicles which are backing up. A penalty of $100 would have been 

assessed for the Ford truck which had no back-up alarm at all and a penalty 

of $ 75 each wo'uld have been assessed for the GMC truck and front-end loader 

which- had inoperable back-up devices. Exhibit 1, however, shows that respondent has violated section 77.410 on one prior occasion. Therefore each 

penalty will be increased by $5 to $105 and to $80, respectively, because 

of respondent's history of a previous violation. 

Citation No. 69258 4/18/78 § 77.1109 (Exhibit 44) 

Findings. Section 77.1109(c)(l) provides that trucks, front-end 

loaders and other mobile equipment shall be provided with at least one portable fire extinguisher. Respondent violated section 77.1109 because its 

front-end loader was not equipped with a fire extinguisher. The violation 

was moderately serious because the end loader was used outside the mine 

where a fire would not endanger miners by destroying their oxygen supply 

or creating noxious fumes which could asphyxiate them. There was ordinary 

negligence in respondent's failure to. provide a fire extinguisher 

(Tr. 336-340; 344). 

Conclusions. The inspector believed that the primary hazard created 

by lack of a fire extinguisher would be that a miner might try to put 

out any fire with his hand or some inadequate object and burn himself or 

might be injured by a fuel-tank explosion (Tr. 336). There may be some 

validity to the inspector's claim, but he did not cite any cases in which 

that had happened. Clearly respondent's witness was correct in pointing out 

that a person's life is not nearly as much endangered by a fire which occurs 

914 
on a piece of equipment above ground as one is by a fire which occurs underground where one's oxygen supply may be destroyed or one may be exposed to 

noxious fwne.s (Tt.... 34-4) .• - In- any event, the viol.at ion was moderately serious. 

Respondent's witness stated that they made a strong effort to see that fire 

extinguishers were maint·ained on all equipment, but that equipment is left 

unattended over weekends and fire extinguishers are sometimes stolen 

(Tr. 344). The inspector said that there was a fire extinguisher .on the end 

loader when he previously inspected it (Tr. 337). In such circumstances, 

the evidence shows that the violation was associated with a low degree of 

negligence. A penalty of $15 would have been assessed for this violation, 

but Exhibit 1 shows that respondent has violated section 77 .1109 on a prior 

occasion, so the penalty will be increased by $5 to $20 because of respondent's history of a previous violation. 

Citation No. 69259 4/18/78 § 77.1301(c)(8) (Exhibit 45) 

Findings. Section 77.1301(c)(8) requires that explosives magazines be 

kept locked securely when the magazines are unattended. Respondent violated 

section 77.1301(c)(8) because both the magazine for storing detonators and 

the magazine for storing explosives were unlocked. The padlocks were in 

place on the doors and the doors to the magazines were closed, but the padlocks had not been locked and it would have been possible for a~ unauthorized 

person to take explosives and be injure'd by failing to handle them properly. 

A high degree of negligence was associated with the violation because the 

inspector had warned the operator on a previous occasion that the magazines 

should be kept locked (Tr. 346-352). 

Conclusions. Respondent's witness claimed that the magazines were 

within 100 reet of the mine office and that someone was always at the mine 

office to see any unauthorized person who might venture close to the magazines (Tr. 355-366). Respondent's witness conceded, however, that no person 

was specifically given the responsibility of standing watch over the magazines when they are left unlocked (Tr. 360-361). The proximity of the 

magazines makes the likelihood of theft somewhat unlikely, but clearly it 

is serious to fail to keep the magazines locked when they are not being 

·used by persons putting explosives in or taking them out. Respondent had 

been reminded by the inspector on a prior occasion to keep the magazines 

locked. In such circtunstances, a penalty of $100 will be assessed for this 

violation of section 77.1301(c)(8).· There is no history of previous violations to be considered. 

Citation No. 69260 4/18/78 § 75.1306 (Exhibit 46) 

Findings. Section 75.1306 provides, among other things, that no exposed 

metal may exist on the inside of the boxes or magazines used undergrounq 

to store explosives and detonators on the working section. Respondent violated section 75.1306 because bare nails existed on the inside of the boxes 

used for storage of explosives and detonators. The boxes contained explosives and detonators and the inspector considered the violation to be 

serious because a spark from the exposed metal could have caused an explosion. Respondent was negligent for not having made certain that all nails 

on the inside of the box were covered by nonmetallic materials 

(Tr. 369-381). 

915 
Conclusions. Respondent's witness stated that the magazines are 

dragged toward the face as production progresses. During a movement preceding the inspection"._J:h~_h.inges_on the box had been damaged. When the box 

was repaired, the employee making the repairs failed to inspect the interior 

of the box for exposed nails (Tr. 380). Respondent's witness stressed the 

fact that no metal was ever placed inside the magazines and that there was 

nothing in the magazines to produce a spark (Tr. 381). The fact remains 

that a metal object may strike an exposed nail when explosives are being 

put in or taken out of the magazines and an explosion could result. Respondent's defense did not show that the violation was less than serious or 

that there was a low degree of negligence associated with the violation. 

Therefore, a penalty of $100 will be assessed for this violation of section 

75.1306. There is no history of previous violations to be considered. 

Citation No. 69621 4/19/78 § 75.1701 (Exhibit 47) 

Findings. Section 75.1701 provides, among other things, that 20-foot 

boreholes shall be drilled in advance of the working face and boreholes are 

also required to be drilled in the rib of such working face when the working 

section is within 200 feet of an adjacent mine. Respondent violated 

section 75.1701 because 20-foot boreholes were not being drilled in advance 

of the working face at a time when respondent's mine was-within 100 to 

150 feet of an adjacent mine. The violation was serious because it is possible to cut into an abandoned mine and be drowned by water or noxious gases 

which have accumulated in the abandoned mine. Respondent was grossly negligent for failing to drill the test holes because it was aware of the 

existence of the abandoned mine inasmuch as respondent had already cut into 

the adjacent mine on a prior occasion (Tr. 383-386; 398). 

Conclusions. Respondent's witness was somewhat critical of the inspector because the inspector could not pinpoint the exact place in the mine 

where the miners were working on the day Citation No. 69621 was written 

(Tr. 392). That contention has no merit because the inspector clearly designated the area as being near spad No. 630 and any mining in that area would 

have required 20-foot test holes to be drilled (Tr. 393). Respondent's 

other defense was that the miners had been drilling test holes and he 

believed they may have been drilling them on the day the violation was cited, 

but respondent's witness could not be certain of that claim (Tr. 402). The 

fact that the 20-foot drill stem was broken on the day of the inspection 

and had to be repaired before the test holes could be drilled is a strong 

indication that test holes were not being drilled at the time Citation 

No. 69621 was written (Tr. 398). 

The preponderance of the evidence shows that the violation occurred, 

that it was serious, and that the violation was accompanied by a high degree 

of negligence. Therefore, a penalty of $225 will be assessed for this violation of section 75.1701. There is no history of previous violations to be 

considered. 

916 
The Settlement Agreement 

_D_g~ket No. PIKE 79-107-P 

MSHA's Petition for Assessment of Civil Penalty filed in Docket No~ 

PIKE 79-107-P seeks assessment of civil penalties for three alleged violations of the respirable-dust standards. The parties agreed to settle the 

issues raised in Docket No. PIKE 79-107-P pursuant to an agreement under 

which respondent will pay a penalty of $9.00 for two violations and a 

penalty of $52.00 for the third violation. The Assessment Office had .proposed penalties of $48.00 for one violation and $52.00 for each of the other 

two violations. 

MSHA's counsel agreed to accept a reduced penalty of $9.00 with respect 

to two of the violations because they were cited prior to the amendments contained in the 1977 Act which had the effect of eliminating the cloud cast 

upon alleged violations of the respirable-dust standards by the Board of 

Mine Operations Appeals' opinions in Eastern Associated Coal Corp., 7 IBMA 

14 (1976), aff' d on reconsideration, Eastern Associated Coal Corp., 7 IBMA 

133 (1976). Large numbers of cases which arose during the period when the 

Board's Eastern Associated opinions were in effect were subsequently settled 

on a basis which amounted to an average payment by the coal operators of 

$9.00 per alleged respirable-dust violation. See,~·~·' Judge Joseph B. 

Kennedy's Order Approving Consent Settlement and To Pay Civil Penalties 

issued May 10, 1978, in Secretary of Labor (MSHA) v. Consolidation Coal 

Company, ~ ~·, Docket Nos. VINC 76-76-P, et al.· I belie~e that fairness 

to other operators justifies allowance of the settlement figure of $9.00 

for all civil penalty cases involving alleged respirable-dust violations 

occurring prior to the amendment of the definition of "respirable dust" in 

the 1977 Act. 

Respondent's agreement to pay the full penalty of $52.00 proposed by 

the Assessment Office for the third respirable-dust violation is appropriate 

because the Assessment Office considered that violation of section 70.lOO(b) 

to be moderately serious and to involve ordinary negligence. The Assessment 

Office's proposed penalty of $52.00 is in line with the penalties which have 

been assessed in the contested portion of this proceeding in situations in 

which the violations were found to be moderately serious and to involve 

ordinary negligence in view of the fact that a small oper~tor is involved. 

Based on the discussion above, I find that the parties' settlement 

agreement in Docket No. PIKE 79-107-P should be approved as hereinafter 

provided. 

Summary of Assessments and Conclusions of Law 

(1) Pursuant to the settlement agreement, respondent should be ordP.red 

to pay civil penalties totaling $70 which are allocated to the respective 

alleged violations as follows: 

917 
Docket No. PIKE 79-107-P 

Notice No. ·-l-BPS--(r-l}-1/7/77 §·71.108; ..... o••••• .... • $ 

Notice No. 1 BC 0-13) 5/3/77 § 70.250 ••••••••••••••••• 

Citation No. 9926003 4/18/78 § 70.lOO(b) ••••••••••••••• 

Total Settlement Penalties in 1his Proceeding ••••• $ 

9.00 

9.00 

52.00 

·70.00 

(2) On the basis of all· the evidence of record and the foregoing 

findings of fact, respondent .should be assessed the following civil 

penalties: 

Docket No. PIKE 79-41-P 

1.00 

1.00 

1.00 

60.00 

35.00 

25.00 

$ 150.00 

Notice No. l RDM (6-4) 1/7/76 § 75.1719 •••••••••••••••• $ 

Notice No. 2 RDM (6-5) 1/7/76 § 75.1710 •••••••••••••••• 

Notice No. 1 RDM (6-10) 4/16/76 § 75.1710 •••••••••••••• 

Citation No. 69245 4/17/78 § 75.316 •••••••••••••••••••• 

Citation No. 69246 4/17/78 § 75.316 •••••••••••••••••••• 

Citation No. 69247 4/17/78 § 75.316 •••••••••••••••••••• 

Citation No. 69248 4/17/78 § 75.400 •••••••••••••••••••• 

Citation No. 69249 4/17/78 § 75.400 •••••••••···~· ... -·-•••• 

Citation No. 69250 4/17/78 § 75.503 •••••••••••••••••••• 

Citation No. 69251 4/18/78 § 75.316 •••••••••••••••••••• 

Citation No. 69252 4/18/78 § 75.503 ••••••••••••O••••••• 

Citation No. 69253 4/18/78 § 75.1713 ••••••••••••••••••• 

Citation No. 69254 4/18/78 § 75.1718 ••••••••~•••••••••• 

Citation No. 69255 4/18/78 § 77.410 •••••••••••••••••••• 

Citation No. 69256 4/18/78 § 77.410 •••••••••••••••••••• 

Citation No. 69257 4/18/78 § 77.410 •••••••••••••••••••• 

Citation No. 69258 4/18/78 § 77.1109(c)(l) ••••••••~•••• 

Citation No. 69259 4/18/78 § 77.130l(c)(8) •••••• ~ •••••• 

Citation No. 69260 4/18/78 § 75.1306 ••••••••••••••••••• 

Citation No. 69261 4/19/78 § 75.1701 ••••••••••••••••••• 

Total Civil Penalties in Docket No. PIKE 79-41-P ••• 

Total Settlement and Contested Penalties ••••••••••• 

100.00 

50 .. 00 

20.00 

95.00 

55.QO 

50.00 

.105.00 

80.00 

80.00 

20.00 

100.00 

100.00 

225.00 

$1,353.00 

$1,423.00 

· (3) Respondent was the operator of the No. 1 Mine at all pertinent 

times and as such is subject to the provisions of the Act and to the regulations promulgated thereunder. 

WHEREFORE, it is ordered: 

(A) The settlement agreement reached by the parties during the hearing 

is approved. 

918 
(B) . Respondent, within 30 days from the date of this decision, shall 

pay civil penalties totaling $1,423.00 of which $70.00 are assessed pursuant 

to the parties' settlement-agreement summarized in paragraph (1) above and 

the remaining $1,353.00 are assessed pursuant to my decision on the contested aspects of the proceeding as summarized in paragraph (2) above. 

Distribution: 

~ c r<E-fiifzr Richard c. Steffe~ · 1 r 

Administrative Law Judge 

(Phone: 703-756-6225) 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Johnson Brothers Coal Company, Inc., Attention: Gregory Johnson, 

Superintendent, Box 166, Virgie, KY 41572 (Certified Mail) 

919 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

APR 1 5 1980 ~~~~~~~~~~~~~~~~~~.) 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

ASARCO INCORPORATED, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

~~~~~~~~~~~~~~~~~~) 

DECISION 

APPEARANCES: 

CIVIL PENALTY ACTION 

DOCKET NO. DENV 79-473-PM 

ASSESSMENT CONTROL NO .. 05-00516-05006 V 

MINE: LEADVILLE UNIT 

Phyllis K. Caldwell, Esq., Ann M. Noble, Esq., and James H. Barkley, Esq., 

Office of Henry C. Mahlman, Associate Regional Solicitor, United States 

Department of Labor, Denver, Colorado 

for Petitioner, 

Earl K. Madsen, Esq., Bradley, Campbell and Carney, Golden, Colorado, 

for Respondent. 

Before: Judge John J. Morris 

STATEMENT OF THE CASE 

Petitioner charges that respondent exposed its miners to unstable rock 

conditions. It is asserted that the conditions in the ASARCO underground mine 

violated a standard promulgated under the authority of the Federal Mine Safety and 

Health Amendments Act of 1977, amending 30 U.S.C. §801 et~· (1969) (amended 1977). 

ISSUES 

The issues are whether there were unstable rock conditions in the 12-6-3 stope 

on March 30, 1978, and whether abatement would require the miners to climb on the 

1/ muck pile to bar or bolt down the back. -

J../ Back - The roof or upper part of any underground mining cavity. A Dictionary 

of Mining, Mineral, and Related Terms, United States Department of Interior 

(1968). 

920 
The cited standard provides as follows: 

57.3-22 Mandatory. Miners shall examine and test the back, 

face, an.d-rib of-their working places at the beginning of 

each shift and frequently thereafter. Supervisors shall 

exam-ine-t-he- grnEl--£-ORd-i-t-ions during-daily visits to insure 

that proper·testing and ground control practices are being 

followed. Loose ground shall be taken down or adequately 

supported before any other work is done. Ground conditions 

along haulageways and travelways shall be examined 

periodically and scaled or supported as necessary. 

FINDINGS OF FACT 

Based on the record I find the following credible facts: 

1. A stope is an underground cavity from which ore is extracted (Tr_ 10-11). 

2. The mining cycle in stope 12-6-3 was to bar, drill, blast, bar, and 

muck (Tr 68). 

- ---· 

3. The barring process is accomplished with the use of a scaling bar to 

knock down any loose materials from the back and sides (ribs) of the stoP:e· In 

the drilling process 16 to 18 holes are drilled in a 10 to 12 foot face. The 

dynamite blast that follows creates a muck pile approximately 15 to 20 feet 

along its base. A mechanical machine, called a mucker, removes the debris (muck) 

after blasting (Tr 110, 162, Exhibits P2, R4). 

4. Roof bolting may occur, after barring down, if warranted by the 

conditions (Tr 68, 68). 

5. On March 30, 1978, in close proximity to the facg being mined, the roof 

was highly fractured; it consisted of loose ground described as being mud-like !:_/ 

in texture. 

6. When the mucker pulled back, the inspector, with a 6 to 8 foot bar, 

caved in a portiQn of the back. It was dribbling. The pieces he barred down 

were from a foot to sandlike pieces in size (Tr 17). 

!:_/ "Mud" is a mining term meaning softer rock (Tr 16). 

921 
7. To abate this condition, the miners would have had to climb on the muck 

pile to bar down t-he loose-material from the back; the miners should not follow . , . 

such an unsafe practice (Tr 85-86, 181). 

DISCUSSION 

The initial pivotal issue in this case is whether the ground was loose and 

unconsolidated. 

ASARCO contends l/ that the ground in the North 3 Heading of 12-6-3 stope 

was neither loose nor unconsolidated. In support of its view ASARCO points to 

the testimony of witnesses Hustrulid, Traft, Howard, Mosher, and to the cross 

examination of witness King. Inasmuch as this issue focuses on a central 

credibility determination it will be necessary to review--the above evidenc;.e in 

detail. 

Expert witness Hustrulid was not present on the day of the inspectiort. The 

closest rock he was able to inspect was 60 to 70 feet laterally and 67 feet vertically from the point of the citation (Tr 272). The thrust of witness Hustrulid's 

testimony was directed at the condition of the rock throughout stope 12-6-3 but 

the citation related to a very limited area within 15 to 20 feet of the blasting 

face. 

During the mining cycle this area had been blasted and the muck pile.debris 

was being removed. Witnesses Hustrulid and the ASARCO miners agree that blasting 

will fracture rock. They also agree that roof bolts can be torn out as a result 

of a blast (Tr 73-74, 165, 271-272). 

Miner Traft did not contradict petitioner's evidence. He stated the "ground 

seemed pretty good" (Tr 163). Furthermore, he didn't "believe" the rock was "mud" 

but it "seemed" like solid rock (Tr 165). I don't consider the foregoing 

3/ Brief, Page 5-19 

922 
testimony to be contradictory to MSHA's evidence. Furthermore, the fact that 

the inspector barred.down two-to three wheelbarrows full is not refuted by 

ASARCO. Two to three wheelbarrows full is persuasive evidence indicating an 

unstable roof condition, as compared to merely some loose rock, existed. 

The testimony of witness Howard does not address the issue of the rock 

condition at the place of the citation, but it generally centers on the lack of 

karst, a white unstable rock in the area. Superintendant Mosher follows .this 

same track. 

ASARCO's review of the testimony of the inspector consists of its reargument that there was not loose and unconsolidated ground in the North 3 

Heading of the 12-6-3 stope. - -- . 

For the reasons stated I reject ASARCO's proposed findings of fact No. 1. 4/ 

The second pivotal issue concerns the exposure of the miners to the unstable 

back conditions. Otherwise stated, this issue centers on the location of· the muck 

pile in relation to the unstable back and whether the miners would have to stand 

. on the muck pile to abate the condition. J./ 

MSHA's evidence could support a finding that there was loose material over 

the heads of the miners. !!../ However, such a finding would ignore the evidence 

that the unstable condition could only be abated by having the miners stand on 

the muck pile (Tr 86 - 87, 91). If the miners would be required to do so then 

they were not exposed to the loose and unconsolidated ground. 

~/ Brief, Page 5. 

lf ASARCO Brief, Pages 39 - 42. 

§_/ MSHA's evidence and the mathematical calculations that can be made in 

the case are at best confusing. I give Exhibit P-2 zero weight since 

the exhibit, an illustration, is not supported by the testimony. 

923 
In cross examination the inspector indicated that the miners would have 

to climb on the .muck-_pile -t-0 bar down the back (Tr 85). Further support for 

the lack of exposure to the miners was the method of abatement agreed to between 

the inspector and the miners. They abated the condition by mucking out two feet 

and i~serting roof bolts and repeating this process until completion (Tr 181). 

CONCLUSION OF LAW 

Under the circumstances here ASARCO did not violate 30 CFR 57.3-22. The 

miners had not reached that portion of the mining cycle requiring them to bar 

down or otherwise support the back. In short, miners are not required to bar 

down while standing on a muck pile. 

Based on the foregoing finding of fact and conclu_~ions- of law I enter the 

following: 

ORDER 

Citation 331584 and the proposed penalty are VACATED. 

Law Judge 

Distribution: 

Earl K. Madsen, Esq., #655, BRADLEY, CAMPBELL AND CARNEY, Professional 

Corporation, 1717 Washington Avenue, Golden, Colorado 80401 

Phyllis K. Caldwell, Esq., Ann M. Noble, Esq., James H. Barkley, Esq., 

Office of the Solicitor, United States Department of LaborJ 1585 Federal 

Building, 1961 Stout Street, Denver, Colorado 80294 

924 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

-OFF-ICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 8 APR 1980 

QUARTO MINING COMPANY, Contest of Order 

Applicant 

v. Docket No. LAKE 80-44-R 

SECRETARY OF LABOR, Order No. 0824549 

MINE SAFETY AND HEALTH September 20, 1979 

ADMINISTRATION (MSHA), 

Respondent Powhatan No. 4 Mine 

UNITED HINE WORKERS OF AMERICA, 

Respondent 

Appearances: 

Before: 

DECISION 

David R. Case, Esq., John T. Scott, Esq., Crowell & Moring, 

Washington, D.c., for Applicant; 

Linda Leasure, Esq., Office of the Solicitor, Department of 

Labor, for Respondent, MSHA. 

Administrative Law Judge Melick 

This case is before me under section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act), 30 u.s.c. § 801 et~·· upon the application of the Quarto Mining Company (Quarto) to contest an order of withdrawal 

issued by the Mine Safety and Health Administration (MSHA) under section 

104(d)(2) of the Act. A hearing was held in Wheeling, West Virginia, on 

January 22, 1980, at which the parties appeared and presented evidence. 

MSHA inspector William A. McGilton issued the withdrawal order at bar on 

September 20, 1979, charging Quarto under 30 C.F.R. § 75.200, with failing 

to comply with its approved roof control plan. 

Section 104(d)(2) of the Act, under which this order was issued, provides in relevant part as follows: 

If a withdrawal order with respect to any area in a coal 

or other mine has been issued pursuant to paragraph (1), a 

withdrawal order shall promptly be issued by an authorized 

representative of .the Secetary who finds upon any subsequent 

inspection the existence in such mine of violations similar 

925 
to those that resulted in the issuance of the withdrawal 

order under_paragraph (1) until such time as an inspection 

of such mine--disclo~s--no similar violations. 

There is no dispute that a valid precedent section 104(d)(l) order existed, that the violation underlying the order at bar did in fact occur and 

that the violation was "significant and substantial" and did not constitute 

an "imminent danger." The specific issue then is whether the violation cited 

in the section 104(d)(2) order was the result of an "unwarrantable failure." 

If it was then the violation was "similar" to that resulting in the issuance 

of the precedent section 104(d)(l) order and the order at bar is valid. 

Eastern Associated Coal Corp., 3 IBMA 331 (1974). 

Unwarrantable failure has been defined as the failure by an operator 

to abate a condition that he knew or should have known existed, or the 

failure to abate because of indifference or lack of due diligence or reasonable care. A high degree of negligence need not be found to support the 

issuance of an unwarrantable failure order but the issuance must be reasonable and made pursuant to a thorough investigation by the inspector. 

Ziegler Coal Company, 7 IBMA 280 (1977). 

I find, for the reasons that follow, that Quarto failed to abate the 

admitted violation which it should have known existed. The essential facts 

of the case are not in dispute. The violation occurred in the 9 right 

off 1 north-No. 67 room where nine temporary roof supports (metal jacks) 

were installed in violation of the roof-control plan. All nine · were set 

with more than the allowable number of capblocks (also known as header 

blocks) and several were also set on centers in excess of 5 feet and on 

loose footing. When foreman Henry Wiley conducted his preshift inspection 

of the No. 67 room at 5:26 a.m. the violations did not exist. Wiley 

admitted that he did not return to the No. 67 room during the remainder 

of the shift; which ended at 7 a.m., explaining that he was busy cleaning 

up an accumulation of combustible material elsewhere in the mine. He conplained that he was short on workers and thus felt compelled to personally 

shovel away the accumulation. 

The two miners, who set the improper roof supports, Edward Richards and 

Keith Jones, testified that they began looking for Wiley sometime after 6 a.m. 

When they found him two entries back they told him they hao finished mining 

and reported that the roof was too high in the No. 67 room to set jacks. 

Wiley told them to used header blocks. Jones admitted that it was not common 

practice to ask the foreman for permission to use only two blocks with the 

jacks (which was permissible under the roof-control plan) and implied that 

Wiley should have known that more than two capblocks would have to be used 

by the nature of his unusual inquiry. The two miners thereafter returned 

to the No. 67 room and, using an excessive number of blocks, proceeded to 

improperly set the temporary supports. 

926 
I find that when Wiley was told by Jones and Richards of the unusually 

high roof in the :ti<?• ~LrQ..om__he was placed on sufficient notice to obligate 

him as a reasonably p-rudent mine foreman to personally check that area 

before the end of his shift. I find that he failed to exercise reasonable 

care in not doing so. This constitutes "unwarrantable failure". The notice 

here was especial·ly clear because of the unusual nature of two miners requesting permission to perform a procedure they would ordinarily follow without 

permission if it were done properly. 

I also find that Wiley failed to exercise reasonable care in failing 

to have conducted required methane tests in the vicinity of the No. 67 room. 

Wiley should have known, even if he did not actually know, that such tests 

had to be conducted every 20 minutes during the shift (30 C.F.R. § 75.307) 

and that he was the only one in that section who had the approved methane 

detector to conduce such tests. Wiley in fact took no methane readings in 

that area after 5:26 a.m. If he had not acted negligently in this regard 

I find that he would have been in a position to have seen the excessively 

high roof and improper roof supports in the No. 67 room. For this additional 

reason then Wiley should have known of the violations. 

The negligence of foreman Wiley is imputed to Quar~o~ The Valley 

Camp Coal Co., 3 IBMA 463 (1974). Under the circumstances I find that the 

failure to abate the roof-control violation which Quarto should have known 

existed was the result of "unwarrantable failure." Or er of Withdrawal 

No. 824549 is therefore valid and this case is dismis ed. 

Distribution: 

n \.'.._ .. 

\ 

Linda Leasure, Esq., Office of the Sol·~or, U.~ 

881 Federal Office Building, 1240 East Ninth St 

44199 (Certified Mail) 

Department of Labor, 

Cleveland, OH 

David R. Case, Esq., Crowell & Moring, 1100 Connecticut Ave., NW., 

Washington, DC 20036 (Certified Mail) 

927 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RONALD H. McCRACKEN, 

v. 

.OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

Complaint of Discharge, 

Discrimination or 

Interference 

Docket No. WEVA 79-116-D 

VALLEY CAMP COAL COMPANY, 

Respondent Valley Camp No. 1 Mine 

DECISION 

Appearances: John W. Cooper, Esq., and Abraham Pinsky; Esq., Wellsburg, 

West Virginia, for the Complainant; 

Arthur M. Recht, Esq., Wheeling, West Virginia, for the 

Respondent; 

Thomas P. Piliero, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the Mine 

Safety and Health Administration. 

Before: Judge Melick 

This case is before me upon the complaint by Ronald H. McCracken 

(McCracken) under section 105(c){3) of the Federal Mine Safety and Health 

Act of 1977 (30 U. S.C. § 801 ~ ~·, hereinafter referred to as the "Act"), 

alleging an unlawful discharge of him by the Valley Camp Coal Company (Valley 

Camp). A hearing was held on December 4 and 5, 1979, in Wheeling, 

West Virginia, at which both parties, represented by counsel, appeared and 

presented evidence. 

The issue in this case is whether McCracken was unlawfully discharged 

by Valley Camp in violation of section 105(c) (1) of the Act--because of his 

safety complaints regarding Valley Camp's N~. 1 Mine. Section 105(c)(l) 

provides in part that: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against * * * a miner [or] representative of miners * * * 

in any coal * * * mine subject to this Act because such 

miner [or] representative of miners * * * has filed or 

made a complaint under or related to this Act, including 

a complaint notifying the operator or the operator's agent, 

or the representative of miners at the coal * * * mine of 

an alleged danger or safety or health violation in a coal 

928 
* * * mine, * * * or because such miner [or] representative of miners * * * has instituted or caused to be instituted any-proceed-in-g-under or related to this Act or has 

testified or is about to testify in any such proceeding, 

or because of the exercise by such miner [or] representative of miners * * * on behalf of himself or others of any 

statutory right afforded by this Act. 

There is no dispute in this case that McCracken had made safety complaints within the scope of section 105(c)(l), that these complaints were 

made to the Federal Mining Enforcement and Safety Administration and that 

Valley Camp knew that McCracken had made the complaints. The record shows 

that from December 15, 1975, through July 8, 1976, McCracken was involved 

in making or filing complaints resulting in the creation of 17 investigative reports by the Federal agency. There is, in addition, no dispute that 

McCracken was discharged by Vall~y Camp on August 28, 1978, in a general 

reduction of force in which 137 other employees and 14 supervisors at t~e 

Valley Camp No. 1 Mine were also discharged. McCracken does not question 

the legitimacy of that reduction in force. I find, for the reasons that 

follow, that McCracken's discharge wa~ not because of any safety or health 

complaint or complaints made by hi~, but rather was ca1J_E;ed by a legitimate 

reduction in force and that McCracken's release was·ai.ctated by the terms 

of the union-operator contract then in effect, the National Bituminous Coal 

Wage Agreement of 1978 (Wage Agreement). 

Article XVII, Section (b) of the Wage Agreement provides that "[i]n 

all cases where the working force is to be reduced, employees with the 

greatest seniority at the mine shall be retained provided that they have 

the ability to perform available work." McCracken argues that at the time 

of the lay-off, he was in fact a qualified underground coal miner and that 

upon the decision by management to discontinue his job classification (as 

greaser--preparation plant) he should have been given the opportunity to 

bid upon a job in the underground workings of the coal mine and, if necessary in order to obtain such a job, to displace persons with less seniority. 

He claims that he then had "the ability to perform available work" in the 

underground workings. Windsor disagrees and maintains that McCracken did 

not have any experience in underground workings that would qualify him for 

such work. };_/ 

1/ In McCracken's grievance proceeding under the Wage Agreement, an 

arbitrator found that McCracken had not been reassigned to work in a 

classification of the underground facility which involved the mining of 

coal because he had in fact never performed work in such a classification 

and therefore had not demonstrated that he possessed the present ability 

to perform the duties of that classification. That determination is not 

however binding in this case. Phillips v. Interior Board of Mine Operations Appeal, 163 U.S. App. D.C. 104, 500 F.2d 772 (1974). 

929 
McCracken began employment with the Valley Camp Coal Company in 1967 as 

a deckhand on a riverboat for 3 or 4 months and then worked as a coal 

analyst. Around ~ay--l-96&; be was classified as a "general laborer, surface," 

primarily working as a mechanic's helper in the coal preparation plant with 

additional overtime and substitute work in what is known as the Souttell Run 

Tunnel. McCracken testified that he became a "greaser" on February 14, 1973, 

and retained that position until laid off on August 28, 1978. Documents 

maintained by Valley Camp show that his job title was "greaser (preparation 

plant)" and I find that this was his position. He admits that he has performed no work in areas of an underground mine where coal is extracted, that 

he has in fact only twice visited such areas briefly and that during those 

visits the mine was not operating. 

McCracken's experience in the Souttell Run Tunnel, from which he claims 

he obtained his "underground" qualifications, apparently began in May 1968, 

when he spent 3 to 5 months inserting grease fittings. Since then he 

reportedly spent 30 to 40 hours a week in the tunnel (estimated by him tD 

account for 85 percent of his total work time) as a greaser performing such 

duties as pumping water, repairing pipe and changing rollers on the conveyor. 

McCracken explained that although his regularly assigned duties were performed in the preparation plant he worked as a tunnel gr~aser on an overtime 

basis or when the primary tunnel greaser, John Coffield~ was on vacation. 

He did not work in the Souttell Run Tunnel while it w~s being constructed. 

Valley Camp maintains that McCracken did not have "the ability to 

perform available work" in the underground workings where coal was being 

extracted. It contends that he had no working experience in such areas and 

that it was against long-standing company policy to permit such inexperienced 

personnel to work there without first completing a 6-month apprenticeship or 

"red hat" training program in the underground workings. McCracken contends 

that his work in the Souttell Run Tunnel provided him with such experience 

and qualified him to transfer immediately to the underground workings. 

Valley Camp disagrees and cites what it calls significant differences 

between the tunnel environment and the underground workings as the basis for 

its disagreement. 

James Litman, Valley Camp's Vice President for Operations, described the 

tunnel and its distinctive features particularly with respect to the haulage 

and track systems, traffic patterns, roof control, ventilation, and the conveyor systems. This testimony in significant respects is not disputed. 

According to Litman the tunnel is essentially only a conduit for the transfer 

of coal from the preparation plant to transportation on the Ohio River. It 

contains a conveyor belt for coal and a track for transportation of personnel, equipment and coal. The tunnel consists of two parallel entries running 

about 9,000 feet in a straight line and contains no active workings. There 

is, in fact, no coal exposed in the tunnel and there is a 250-foot barrier 

separating it from the working sections of the mine. The overburden varies 

from 0 to over 120 feet. According to Litman, the roof-support system in 

the tunnel was maximized to prolong the life of the tunnel. Wherever overburden exists, it consists of 7- and 10-foot conventional roof bolts, 3 to 

4 inches of gunite encasing No. 10-gauge steel mesh and, at 10-foot intervals, horizontal "H" beams resting on braces embedded into the ribs. 

930 
Vertical beams centered at 10-foot intervals lend further support to the 

"H" beams. Some.locust posts also remain and these and the ribs have also 

been covered with--steel mesn- and gunite. In the sections where there is 

no overburden, the tunnel is encased in steel liners. The tunnel is open 

at both ends and has no mechanically induced ventilation. 

Only a small portion of the underground workings (estimated at .49 percent) on the other hand are gunited and various methods of roof control are 

employed in the remaining areas. Mechanical ventilation is required in all 

of the working sections. Also, in contrast to the tunnel, the underground 

workings contain a multitude of entries, some of which have been abandoned, 

have improper roof support and have inadequate ventilation. Litman emphasized that the underground miner must be able to identify these areas for 

the safety of himself and others. The miner must also learn the location 

of the ventilated escapeways through which safe exit can be made in an emergency. He must learn which doors to pass through and which doors not to pass 

through and must gain the experience to know whether roof support is ad~quate 

in a particular location. He must also learn to work safely around heavy 

mobile equipment that does not exist in the tunnel. The haulage and track 

system in the underground workings also differs from the tunnel. According 

to Litman, it involves complex interconnections as oppQsed to a single track 

in the tunnel. In summary, a number of serious hazards exist in the underground workings of the mine to which McCracken had never been exposed in 

the Souttell Run Tunnel. 

Litman explained that in order to enable a person unfamiliar with the 

hazards unique to the underground working sections of the mine to learn to 

work safely in that environment, it has been the company policy since at 

least 1974 that underground experience in areas where coal i.s being extracted 

is a prerequisite to immediate employment in such areas. Such employees are 

first required to work with an experienced miner in the underground workings 

for 6 months as an apprentice or "red hat" to learn of the mine hazards. 

Grant King, an inspector for the West Virginia Department of Mines, testified 

that West Virginia had a similar training requirement in order to safely 

expose the unfamiliar miner to the haza~ds and dangers inherent in underground coal mining. According to Litman, company policy in this regard was 

even more stringent than that of West Virginia. I find that this longstanding and non-discriminatory policy is clearly justifiable and establishes 

a legitimate basis for McCracken's discharge. He did not 1n fact have the 

present ability to perform available work in the underground working sections of the mine because he did not have the requisite experience. 

In reaching my conclusion herein, I have not disregarded the evidence 

of many similarities between the Souttell Run Tunnel and the underground 

working sections of the mine, that McCracken does, in fact, have many 

work-related skills, that he possesses what has been found to be a valid 

West Virginia miner's certificate, and that the Federal Mine Safety and 

Health Administration and the West Virginia Department of Mines consider 

the Souttell Run Tunnel to be an "underground" facility for their enforcement 

931 
purposes. See also, Valley Camp Coal Company, Docket No. WEVA 79-111 

(March 28, 1980). Under the circumstances of this particular case, however, 

these factors are 1niriiaterfal. 

Once the operator establishes a legitimate cause for discharge, the 

Applicant, to sustain his case, must then show by affirmative and persuasive 

evidence that the invocation of such cause was merely a pretext for an unlawful motive. Shapiro v. Bishop Coal Company, 6 IBMA 28 (1976). McCracken 

alleges three incidents as evidence of such an unlawful motive. In the 

first, he claims that the company manager for industrial relations, John 

Gotses, had, after the layoff of McCracken and several other miners who 

later filed grievances, once said that the company had once thought about 

"cutting a deal" in which the four other miners would be rehired if the 

union would withdraw McCracken's grievance. Gotses denied making any such 

statement and I am not at all convinced that it was made. Even assuming, 

arguendo, that such a statement was made, it is vague and imprecise, 

the identity of the person(s) suggesting such a "deal" was not disclosed, 

the reasons for the proposal were not revealed and there is no evidence 

that any such "deal" was ever proposed. Without some clarification of these 

details the statement has no probative value. It is apparent moreover that 

the four other miners in question were actually seniorto McCracken and 

would in any event have been entitled under the Wage Agreement to have 

been rehired before McCracken. 

McCracken next claims that company Vice President Litman once referred 

to McCracken and several others as "radicals" in connection with their union 

activities in a strike at the mine and reportedly said that if they ever 

quit, he would see that they would never get another union job in the valley. 

In light of Litman's denials, I am again unconvinced that any such statements 

were made. Even assuming, arguendo, that the statements were made, it is 

not at all clear that they would have involved a retaliatory motive on any 

basis protected by section lOS(c)(l) of the Act. The alleged statements 

apparently were also made years before McCracken's layoff, too remote in 

time to bear any real causal connection. I note moreover that contrary to 

the import of the allegations Valley Camp has in fact recommended McCracken 

to other employers. 

Finally, McCracken alleges that a former mine super~ntendent named 

Wilson had once called McCracken "a thorn in their side and that he cost 

them a lot of money." Even assuming that such a statement was made, and 

regardless of Wilson's personal feelings toward McCracken, it is clear that 

Wilson was no longer employed by Valley Camp when McCracken was laid off. 

There is no evidence that Wilson (who in fact may have left the employ 

of Valley Camp years before the layoff) had anything to do with the alleged 

discriminatory act, and therefore the comments attributed to him are immaterial to this case. 

Under the circumstances, I cannot find any 

persuasive evidence to show that the legitimate 

discharge was a pretext for an unlawful motive. 

932 

credible affirmative and 

cause for McCracken's 

To the contrary, the 
evidence- shows that more than 2 years elapsed between McCracken's last 

safety complaint-and-hi~ ±ayoff. This in itself is persuasive evidence 

that no connection existed between the two events. McCracken has failed 

to show that his discharge was the result of any disc imination proscribed 

by the Act and the complaint herein is therefore dism ssed. 

G 

Distribution: 

John w. Cooper, Esq., and Abraham Pinsky, 

Wellsburg, WV 26070 (Certified Mail) l Main Street, 

Thomas Piliero, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22033 (Certified Mail) 

Arthur Recht, Esq., Schrader, Stamp and Recht, 8f6 Central Union 

Bldg., Wheeling, WV 26003 (Certified Mail) 

933 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND 

HEALTH ADMINISTRATION 

(MSHA), 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

2 2 APR 1911) 

) 

) 

) 

) CIVIL PENALTY PROCEEDING 

) 

· Petitioner, 

) DOCKET NO. WEST 79-13-M 

) 

v. 

PHOENIX REDI-MIX COMPANY, 

INCORPORATED, 

Respondent. 

) A/O 02-01070-05002 

) 

) Mine: Phoenix Redi-Mix Pit 

) 

) 

) 

) 

) ~~~~~~~~~~~~~~~~~~~ 

APPEARANCES: 

DECISION 

Mildred L. Wheeler, Esq., Office of the Solicitor, United 

States Department of Labor, San Francisco, California~ for 

Petitioner; · 

Steven H. Williams, Esq., Norling, Rolle, Osser, and 

Williams, Phoenix, Arizona, for Respondent. 

Before: Administrative Law Judge Vail 

Statement of the Case 

The proceeding arose upon the filing of a petition for the 

assessment of civil penalty (now called a proposal for a penalty, 29 CFR 

2700.27) for 3 alleged violations of Mandatory Safety Standards contained in 

30 CFR Part 56. The violations were charged in citations issued to 

respondent following an inspection of the Phoenix Redi-Mix Pit on November 

28 and 29, 1978. 

Pursuant to notice, a hearing on the merits was held in Phoenix, 

Arizona, on February 5, 1980. Federal Mine inspector Jack Sepulveda 

testified on behalf of petitioner. Robert Strom and Robert Prickard 

testified on behalf of respondent. Respondent filed a posthearing brief. 

934 
To the extent that the contentions are not incorporated into this 

decision, they are rejected. 

The parties stipulated that the annual man hours of employment at 

respondent's facility was 45,744. Testimony established that there were 

between 15 to 18 employees present at the time of inspection. On the basis 

of these facts, I find that respondent is a medium-sized operator for the 

purposes of determining the appropriateness of the penalties to the size of 

the operator's business. There is no evidence that the penalties will 

effect respondent's ability to continue in business. 

The record establishes that respondent, in the case of each violation 

found herein to have occurred, made a good faith effort-to achieve rapid 

compliance after notification of the violation. 

A review of respondent's history of previous violations shows that no 

increase of the penalties is warranted on--that-hasis. 

Findings are hereafter made with respect to the occurrence, gravity and 

attendant negligence of each violation. 

Findings of Fact 

1. Citation No. 378444 and 378447, issued on November 28, 1978, alleged 

violations of mandatory standard 30 CFR 56.12-32 which requires that 

inspection and cover plates on electrical equipment and junction boxes shall 

be kept in place at all times except during testing or repairs. 

Citations 378444 and 378447 will be treated here together as the 

uncontroverted evidence at the hearing established that the alleged 

violations involved the same tunnel and the same electrical wire but at the 

opposite ends thereof. 

935 
Citati~n No. 378444 alleged the following condition or practice 

existed: 

Electrical covers were not in place at the crusher electr~cal 

shack and electrical wires were exposed. 

Citation No. 378447 alleged that the following condition or 

practice existed: 

The 6 inch duct cover for the electrical switches by the tunnel 

was not in place, and electrical wires were exposed. 

The issue here is whether, at the time the electrical and duct 

covers were not in placei the respondent was in the process of making 

repairs to the said electrical wire? 

I find a violation existed. Section 56.12-32 requires that inspec~ion 

and cover plates on electrical equipment and junction boxes shall be kept in 

place at all times except during testing or repairs. The evidence shows, 

and is not in dispute, that the electrical covers were not in place at the 

crusher electric shack and a 6 inch duct cover for the electrical switches 

by the tunnel was not in place. The respondent argues that at the time of 

inspection, the electrical covers and 6 inch duct cover were not in place 

for the re as on that repai.rs were in the process of being made of a short in 

the underground wiring to these two locations. In accomplishing the repair 

of this shorted wire, the respondent's employees had attached a temporary 

wire at the crusher shack by opening the door to the electrical box and 

connecting the wire to the terminals inside the box. The respondent's plant 

manager, Robert Strom, testified that the temporary set-up, ·referring to the 

wiring involved herein, was used in order to keep the plant operating. In 

the process of accomplishing these repairs, employees were digging a trench 

in the area for laying a new conduit for the shorted wire. 

936 
I find that the operator was negligent. The repair work being done 

at the time of the .inspection involved digging a trench for the new wire and ---· - --

conduit and there was no actual work being done on the electrical boxes at 

the crusher shack or the electrical switches by the tunnel. In fact, 

temporary wiring connections were made to facilitate the plant's continued 

operation until the trench was completed for receiving the new wire. Until 

this trench was completed, a dangerous condition existed involving the two 

locations described in the citations which exposed employees to possible 

serious injury. I find the respondent abated in good faith. 

2. Citation No. 378449 and Order of Withdrawal was issued November 29, 

1978, which alleged a violation of 30 CFR 56. 3-5 in that the front-end 

loader at the south pit was mining material under a dangerous bank. 

Respondent abated the dangerous bank and high wall by having a D-8 Dozer 

push the material from the high wall to a safe angle of repose and building 

a working bench for the front-end loader to work from. 

The issue here is whether the front-end pit loader was operating under 

a dangerous bank? 

30 CFR 56.3-5 provides that men shall not work near or under dangerous 

banks. Overhanging banks shall be taken down innnediately and other unsafe 

ground conditions shall be corrected promptly, or the areas ~hall be 

barricaded and posted. 

The respondent argues that the conditions existing were neither 

dangerous nor unsafe and that the mine inspector failed to advise the 

respondent as to what is a safe height of a bank as involved herein. 

The citation in this matter was written on November 29, 1978 as an 

Order of Withdrawal due to a front-end loader at the south pit mining 

937 
material under what the inspector termed a dangerous bank which was 

described in the ·_Qrd~_r: .to- be about 45 feet high. The loader was stated to 

be 14 feet high with a maximum reach of about 25 feet. The inspector 

testified that he observed the loader on the day before, which would be 

November 28, 1978, working in the south pit under what he considered to be a 

dangerous bank. He advised the superintendent of the mine, later on in the 

day, that he thought they should bring the bank down to get a better angle 

of repose. The following day, November 29, 1978, while accompanied by his 

supervisor, a Mr. Day, the inspector again looked at the bank in the 

respondent's south pit and decided to issue the withdrawal order and 

citation involved herein. After the issuance of the Order, the respondent 

abated the condition by building a working pan at the bottom of the bank and 

pushing the side to what was considered a good angle of repose. The 

inspector testified that after the change in the condition of this bank; he 

measured it and found it was still over 45 feet. The respondent's mine 

superintendent, Robert Strom, testified that in his opinion the operation 

near the bank was being performed in a safe and non-dangerous manner. 

I find a violation existed. Section 30 CFR 56.3-5 requires that men 

shall not work near or under dangerous banks. The thrust of the 

respondent's arguments relating to this citation appears to rest on their 

attempt to have the applicable standard or the inspector set a definite 

height which a bank could be before it became dangerous. This argument does 

not overcome the practical factors involved in various types of mining 

conditions. As testified to by the inspector in this case, and an obvious 

factor, would be the type of material or condition of the bank under which 

the man or men were working. If it were solid rock, the danger of it 

938 
falling would .be less t_han loose or unstable sand or gravel. ·There was 

testimony, unrebu-tted-·by-the- respondent, that the front-end loader operator, 

a Mr. Young, had experienced some material coming down while digging there. 

Al thou_gh the respondent's plant manager, Hr. Stram, and safety director, 

Robert Tickard, indicated that some sluffing was a common occurrence in such 

an operation, they opined that an experienced front-end loader operator 

would be able to recognize when the height of the bank became dangerous. 

I am more persuaded by the fact that the inspector first recognized the 

danger at respondent's south pit on the 28th of November, 1978, and then on 

the following day, while accompanied by his supervisor, issued the Order of 

Withdrawal and Citation, which did not appear to be a_ ~p.ap judgement but 

rather a thought-out decision. Although his initial estimate of the height 

of the bank was 45 feet, it was later determined by actual measurement .to 

have been considerably higher than that before abated. He testified th~t 

after the 10 foot working pan was created at the base of the bank, the bank 

was sti 11 over. 45 feet high but had a good angle of repose and that he 

estimated the bank, before correction, had been 75 to 80 feet. 

I find that a violation of the mandatory standard contained 1n 30 CFR 

56-3 did occur. The violation was serious because of the possibility of 

injury and was due to respondent's negligence. The evidence shows that the 

condition was known or should have been known to the respondent. Respondent 

did, however, abate quickly and in good faith, after the issuance of the 

withdrawal order. 

Section llO(i) of the Act directs that in assessing a penalty, I 

consider six criteria: the operator's history of previous violations, the 

size of the operation, whether the operator was negligent, the effect on the 

939 
operator's ability to continue in business, the gravity of the 

violation, and the demonstrated good faith of the operator in attempting to 

achieve rapid compliance. The petitioner's Exhibit Number 1 received in 

evidence shows that the respondent had a total of 15 violations assessed for 

a period from November 29, 19.76 to November 28, 1978, covering a two year 

period. I do not consider this to warrant that the penalties should be 

increased. The operator's business is medium in size. There is no evidence 

that the penalties will have any effect on the operator's ability to 

continue in business and therefore, I conclude that they will not. 

The violations involved herein with the electrical wiring, Citatiori 

No. 378444 and 378447, did occur. Respondent argues that it was in the 

process of repairs to the wiring involved and therefore not in violation. 

This argument is rejected as the facts show the repair work involved digging 

a trench to subsequently receive the new wire to replace the temporary wire 

in place at time of the inspection. The condition as it existed created a 

danger. to employees and the respondent was negligent. However, the 

respondent abated in good faith in this matter. I find that the two 

citations relate to the same general area, that 1s both ends of the same 

wiring hookup and that the penalty assessed should consider this. I assess 

a penalty of $50.00 for Citation No. 37844 and a penalty of $50.00 for 

Citation No. 378447 for the violations found. 

As to Citation No. 378449 alleging a violation of 30 CFR 56.3-5, there 

1s apparently considerable difference of opinion as to what constitutes a 

violation here, particularly as to the height of a dangerous bank. The 

weight of the evidence persuades me that the violation occurred. However, 

in view of the stipulations regarding four of the six statutory criteria, 

940 
and the fact that there was good faith abatement and little negligence 

on the responderit.'s_part,. -I-assess a penalty of $250.00 for the violation 

found. 

ORDER 

It is therefore ORDERED that respondent pay to MSHA a civil penalty in 

the total sum of $350.00 within 30 days of the entry of this order. 

Administrative Law Judge 

Distribution: 

Mildred L. Wheeler, Office of the Solicitor, United States Department of 

Labor, 11071 Federal Building, 450 Golden Gate Avenue, Box 36017, San 

Francisco, California 94102 

Steven H. Williams, Suite 100, The Quadrangle, 2701 East Camelback Road, 

Phoenix, Arizona 85016 

941 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

-SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 2 APR 1990 

ISLAND CREEK COAL COMPANY, 

Applicant 

Application for Review 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Respondent 

Respondent 

Docket No. WEVA 79-242-R 

Citation No. 636033 

June 4, 1979 

Donegan 10-A Mine 

ORDER DENYING FURTHER STAY AND 

GRANTING APPLICANT'S MOTION FOR SUMMARY DECISION 

I. Procedural Background 

On June 28, 1979, Island Creek Coal Company (Applicant) filed an application for review in the above-captioned case pursuant to section lOS(d) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 ~~· 

(1978) (1977 Mine Act) stating, in part, as follows: 

1. At 9:50 a.m. on June 4, 1979, George E. Wills, an 

authorized representative of the Secretary, issued a Citation 

pursuant to Section 104(a) of the Act at the Donegan 10-A 

Mine, alleging that Island Creek violated Section 103(f) 

of the Act for not paying an employee, one Wendell F. 

Seabolt, for his activities in accompanying a MSHA inspector, 

said- George E. Wills, during a 103(i) spot inspection on 

May 7, 1979. The inspection conducted by Mr. Wills on May 7, 

1979, was not a "physical inspection ••• made pursuant ·to the 

provisions of subsection (a)" of Section 103 of the Act, and 

was, therefore, not a "regular" inspection of the subject 

mine under the Act. 'llle Citation required payment of the 

employee no.later than 2:00 p.m. on June 14, 1979, in order 

to terminate the Citation • 

. .2. The inspector was informed that Island Creek did not 

agree with the issuance of the Citation or the fact that a 

violation of Section 103(f) of the Act had occurred, 

942 
especially in view of the March 8, 1979, decisions of 

Administrative Law Judge Lasher in Magma Copper Company, 

Docket No. Denv 78-533-M, and Kentland-Elkhorn Coal 

Corporation, D0-cke-t- Ne. Pike 78-399. However, in order to 

comply with the inspector's order and to avoid the issuance 

of a withdrawal order, Island Creek issued a check in the 

amount allegedly owed to the employee and stated that the payment was being made under protest due to the fact that the 

inspector had erroneously interpreted the Act. The inspector 

then issued a Termination Notice at 9:53 a.m., three minutes 

after issuance of the Citation. 

3. The inspector's issuance of the instant Citation was 

invalid, improper, illegal and in direct contravention of 

Judge Lasher's two decisions hereinabove cited. The operator 

is not required under Section 103(f) of the Act to compensate 

representatives of miners who accompany MSHA inspectors on so 

called "non-regular" inspections, such as a 103(i) spot 

inspection. 

Answers were filed by the United Mine Workers of America (UMWA) and 

the Mine Safety and Health Administration (MSHA) on July 12, 1979, and 

July 23, 1979, respectively. On October 5, 1979, arf order was issued granting the Applicant's motion to stay the proceedings pending the issuance of 

decisions by the Federal Mine Safety and Health Review Commission (Commission) 

in Magma Copper Company, Docket No. DENV 78-533-M, and Kentland-Elkhorn Coal 

Corporation, Docket No. PIKE 78-399. Decisions were issued by the 

Commission in Kentland-Elkhorn Coal Corporation, and Magma Copper Company, 

on November 30, 1979, and December IO, 1979, respectively. l./ Additionally, 

on November 21, 1979, the Commission issued a decision in Helen Mining 

Company, I FMSHRC 1796, 1979 OSHD par. 24,045 (1979), holding that a mine 

operator is not required to pay a miners' representative for the time he 

spends accompanying a mine inspector during a "spot" inspection required 

by section 103(i) of the 1977 Mine Act. 

The UMWA and MSHA filed motions for a further stay on January 25, 1980, 

and January 28, 1980, respectively. On February 4, 1980, the Applicant 

filed a motion for summary decision and a supporting affidavit. On 

February 27, 1980, an order was issued denying the motions for a further stay 

and according MSHA and the UMWA 15 days in which to file-responses in opposition to the motion for summary decision. The subsequent filings by MSHA 

and the UMWA are set forth and discussed in the following section. 

II. Requests for Reconsideration 

MSHA and the UMWA filed documents styled "Response to Order Denying 

Continued Stay of Proceeding and Applicant's Motion for Summary Decision" 

on March 7, 1980, and March 12, 1980, respectively. Both MSHA and the 

J:../ Magma Copper Company, I FMSHRC 1948, 1979 OSHD par. 24,075 (1979); 

Kentland-Elkhorn Coal Corporation, I FMSHRC 1833, 1979 OSHD par. 24,071 

(1979). 

943 
UMWA move for reconsideration of the above-noted February 27, 1980, ruling 

and for the reissuance of a stay, setting forth similar reasons in support 

thereof. MSHA's reasons are set forth as follows: 

For the reasons previously stated by both the Secretary 

and the United Mine Workers of America (UMWA), this proceeding should be stayed as requested and reconsideration of the 

ruling of February 27, 1980, is therefore requested. 

There is indeed no issue in this matter which needs to 

be tried. The Federal Mine Safety and Health Review 

Commission's d~cisions in Kentland-Elkhorn and Helen Mining 

are controlling, however, those cases are pending review as 

the record reflects. Granting Applicant's Motion for Summary 

Decision would prejudice the Secretary, whereas a renewed 

stay would allow the case to lie dormant pending the final 

resolution of the aforementioned cases and no parties will 

be prejudiced by such an action in this matter. 

29 CFR 2700.64(b) provides that summary decision 

can be granted only when there is no genuine issue as to any 

material fact and the moving party is entitled to summary 

decision as a matter of law. True, there is no factual 

difference between the parties, but there is a serious 

difference as a matter of law which can only be settled by a 

final resolution of the proceedings now in D. C. Circuit 

Court concerning Kentland-Eklhorn (Nos. CA 79-2503 and 

CA 79-2536) and Helen Mining Company (Nos. CA 79-2518 and 

CA 79-2537). Until a final decision is rendered on these proceedings summary decision cannot be granted without doing 

violence to 29 CFR 2700.64(b). 

WHEREFORE, the Secretary requests that the Motion for 

Summary Decision be held in abeyance and a stay reissued in 

this matter. 

The UMWA also concedes that "no factual difference [exists] between the 

parties." 

For the reasons set forth in the above-noted order of February 27, 

1980, MSHA's and the UMWA's request that the motion for summary decision 

be held in abeyance and a stay reissued are DENIED. 

III. Motion for Summary Decision 

The Applicant's February 4, 1980, motion for summary decision states, 

in part, as follows: 

1. That the central and controlling issue in the subject case is whether or not Applicant is required under the 

provisions of Section 163(f) of the Federal Mine Safety 

and Health Act of 1977 (the "Act") to compensate miner's 

944 
representatives for time spent accompanying federal inspectors during spot, electrical and ventilation impact inspections, which __ are __ npL "regular inspections" of the mine 

conducted pursuant to Section 103(a) of the Act; 

2. That MSHA issued the citation and/or order which are 

the subject of the above-styled proceeding as a result of 

Applicant's assertion that it was not required by Section 

103(f) of the Act to compensate miner's representatives for 

time spent accompanying federal inspectors on "nonregular 

inspections" and its failure to take such action in compliance with the "interpretive bulletin" issued by MSHA, all 

as stated in the Application for Review filed by Applicant 

in the instant proceeding and the subject citation and/or 

order issued by MSHA; 

3. That Applicant, after and as a direct result of 

issuance of the instant citation and/or order, made the payments mandated by MSHA's representative under protest and 

solely in order to avoid the issuance of further sanctions 

by MSHA, even though Applicant rejected MSHA' s interpre_tation 

of the requirements of Section 103( f) of the Act -ancrinformed 

MSHA's representative of that position; 

4. That MSHA's interpretation of the requirements of 

Section 103(f) of the Act which resulted in the issuance of 

the subject citation and/or order by MSHA's representative 

was and is invalid, illegal and contrary to the requirements 

of Section 103(f) of the Act, as determined by the Federal 

Mine Safety & Health Review Commission (the "Commission) in 

its decisions in MSHA v. Helen Mining Company, Docket No. 

PITT 79-11-P and MSHA v. Kentland-Elkhorn Coal Corporation 

Docket No. PIKE 78-399; 

5. That Applicant, against its will and under protest, 

has been improperly and illegally required and forced by MSHA 

to pay $37.04 in wages to miner's representatives directly 

as a result of MSHA's erroneous interpretation of the Act 

and the improper, invalid and illegal exercise of its onerous 

enforcement powers by the issuance of the instant citation 

and/or order; 

6. That, based upon the pleadings, the subject citation 

and/or order and the affidavit of James Vilseck, which is 

attached hereto as Exhibit A and made a part hereof, there 

is no genuine issue as to any material fact in the instant 

proceeding; and Applicant is entitled, as a matter of law 

based upon the Commission's decisions in Helen Mining and 

Kentland-Elkhorn cited above, to a summary decision in 

this proceeding. 

945 
WHEREFORE, Applicant hereby moves that a summary decision be entered by the Commission granting the instant Application for Review, vacating ab initio and holding for naught 

the instant-Cit-at1on and/or order and awarding Applicant, as 

a setoff and credit against any future civil penalties which 

may be properly assessed by MSHA against Applicant in other 

administrative proceedings before the Commission, damages in 

the amount of $37.04 being an amount equal to the wages which 

MSHA illegally forced Applicant to pay as a.result of the 

unwarranted enforcement actions taken by MSHA. 

Summary decision may be granted only if the entire record shows: 

"(l) that there is no genuine issue as to any material fact; and (2) that 

the moving party is entitled to summary decision as a matter of law." 

29 C.F.R. § 2700.64(b), reported at 44 Fed. Reg. 38232 (1979) (Rules of 

Procedure of the Federal Mine Safety and Health Review Commission; effective 

date: July 30, 1979). For purposes of summary decision, the record consists 

of the pleadings, depositions, answers to interrogatories, admissions, and 

affidavits or other verified documents. 29 C.F.R. § 2700.64(b) and (c), 

supra. Affidavits must be made on the affiant's personal knowledge and 

must show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. "Sworn or certified copies of all papers 

or parts of papers referred to in an affidavit shall be attached to the 

affidavit or be incorporated if not otherwise a matter of record." 

29 C.F.R. § 2700.64(c), supra. 

. No genuine issue as to any material fact exists. The subject citation 

alleges a violation of section 103( f) of the 1977 Mine Act based upon the 

Applicant's refusal to pay a representative of the miners for the time spent 

accompanying a Federal mine inspector during a "spot" inspection conducted 

pursuant to se·ction 103(i) of the 1977 Mine Act. 

The Commission's decision in Helen Mining Company, supra, is dispositive of the issue presented. The Applicant was not required to pay the representative of the miners for the time spent accompanying the inspector during 

the "spot" inspection. 2/ Accordingly, the Applicant is entitled to summary 

decision as a matter of-law on this issue. An order will be issued granting 

the appli~ation for review and vacating the citation. 

The Applicant requests additional relief in the form -of a $37 .04 "setoff and credit against any future civil penalties which may be properly 

assessed by MSHA against Applicant in other administrative proceedings before 

the Commission." The Applicant cites no authority for the requested remedy, 

and, indeed, precedent dictates a result contrary to the one advanced by 

the Applicant. 

2/ In Kentland-Elkhorn Coal Corporation, 1 FMSHRC 1833, 1979 OSHD par. 24,071 

(1979), the Commission held that a mine operator is not required to pay a 

miner's representative for the time he spends accompanying a mine inspector 

during a special electrical inspection of a mine •. The Kentland-Elkhorn and 

946 
In North American Coal Corporation, 3 IBMA 93, 81 I.D. 204, 1973-1974 

OSHD par~ 17,658 (1974), the Commission's predecessor, the Interior Board of 

Mine Operations·-App~_als-{Board), concluded "that a Judge may take into 

account the economic losses suffered by an operator as a consequence of a 

closure order, which is subsequently vacated, as a mitigating factor in 

assessing a penalty for a violation arising out of a condition or practice 

cited in such order." 3 IBMA at 119 (Footnotes omitted). However, the 

Board held "that there is no dollar-for-dollar offset permitted an operator 

against assessments in a penalty proceeding for economic losses sustained 

as a result of a vacated withdrawal order." 3 IBMA at 120 (Footnote 

omitted). The Board sought to impress upon operators the limited extent 

of its ruling by emphasizing that "economic losses resulting from [vacated] 

orders may be considered only with respect to assessments for violations 

arising from the conditions or practices cited in such order." 3 IBMA 121 

(Emphasis in original). Therefore, it must be concluded that no authority 

exists for the award of monetary credits to be used as setoffs against 

future. civil penalties. The requested additional relief will be denied. 

Accordingly, IT IS ORDERED that the Applicant's motion for summary 

decision be, and hereby is GRANTED. IT IS THEREFORE ORDERED that the 

application for review be, and hereby is, GRANTED and Citation No. 636033 

is herewith VACATED. 

IT IS FURTHER ORDERED that the Applicant's request for a $37.04 credit 

to be used as a setoff against future civil penalty assessments be, and 

hereby is, DENIED. 

Distribution: 

William K. Bodell II, Esq., Island Creek Coal Company, P.O. Box 11430, 

Lexington, KY 40575 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, u.s. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Harrison Combs, Esq., Joyce A. Hanula, Legal Assistant, United Mine 

Workers of America, 900 - 15th Street, NW., Washington, DC 20005 

(Certified Mail) 

fn. ];./ continued 

Helen Mining decisions are founded on a common basic premise: The right 

to walkaround pay accorded a miners' representative under section 103(f) of 

the 1977 Mine Act is limited to the time spent accompanying a federal mine 

inspector during a "regular" inspection. of the mine conducted pursuant to 

section 10.3(a). 

947 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

_Qf"FICE. OE-ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone (703) 756-6236 

April 22, 1980 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CAPITOL AGGREGATES, INC., 

Respondent 

Civil Penalty Proceedings 

Docket No. DENV 79-163-PM 

A/O No. 41-00010-05001 

Capitol Cement Quarry & Plant 

Docket No. DENV 79-240-PM 

A/O No. 41-01792-05001 

Pit & Plant No. 4 

STAY OF DECISION 

On January 9, 1980, at the conclusion of the trial.-irr the above 

cases I allowed the parties 30 days from receipt of the transcripts 

to file proposed findings and briefs if they so desired. The transcripts 

were received in my office on February 8, 1980. More than 2 months later 

on April 14, 1980, having received no·briefs or proposed findings, I 

issued my decision in this matter. On April 21, 1980, I was informed 

that neither the Government nor the Respondent had received transcripts 

although both had ordered them. 

I am mindful of the fact that on April 11, 1979, in Secretary ex rel. 

Pasula v. Consolidation Coal Company (1 FMSHRC 25), the Commission ruled 

that neither the Interim Procedural Rules nor the Act provide for a stay 

of a decision or a reconsideration thereof once a judge's decision has 

been issued. The parties are therefore put on notice that I may not have 

jurisdiction to stay the effective date of the decision. I am also aware, 

however, that on July 9, 1979, in Secretary of Labor v. Valley Camp Coal 

Company, 1 FMSHRC 791, the Commission held that Judge Kennedy should have 

granted a motion for reconsideration of his default decision even though 

Judge Kennedy was operating under the same interim rules that were in 

effect when the Pasula case was decided. Also, in at least one case, 

acting under the interim rules, Judge Broderick reinstated a-proceeding 

after he had issued a default decision and the Commission took no action. 

I am therefore of the opinion that the Commission no longer considers 

the Pasula ruling as valid. 

There is the further fact that the new procedural rules which became 

effective July 30, 1979, give the judge wider latitude after he has issued 

a decision. While the provisions of 29 C.F.R. § 2700.65-(c) do not exactly 

fit the instant situation, if interpreted in the light of 29 C.F.R. 

§2700.l(c) in order to "secure the just * *- * determination of all 

proceedings * * *" it must be interpreted so as to allow me to give the 

parties an opportunity to file briefs and proposed findings. 

948 
It is therefore ORDERED that the effective date of the above decision 

be stayed pending receipt of affidavits of the parties stating that they 

ordered but did.-not-rece-ive transcripts and a statement from the reporting 

company, and a possible consideration of briefs and proposed findings. 

IT IS FURTHER ORDERED that the parties file, within 20 days, the 

affidavits referred to above and that Eagleston Stenotype Reporters file 

a statement as to whether the parties ordered transcripts and, if so, why 

they were not delivered. After receipt of this information a further 

ORDER will be issued as to whether the parties will be allowed to file 

briefs and proposed findings and, if so, the dates when they will be due. 

~(? 7?li:o4 a. 

Charles C. Moore, Jr. '/ 

Administrative Law Judge 

Distribution: 

Sandra D. Henderson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square Building, Dallas, TX 752CT2.-(Certified Mail) 

Robert W. Wachsmuth, Esq., 311 Bank of San Antonio, One Romano Plaza, 

San Antonio, .TX 78205 (Certified Mail) 

Richard L. Reed, Esq., 2600 Tower Life Building, San Antonio, TX 

78205 (Certified Mail) 

Eagleston Stenotype Reporters, 18122 Longmoore Drive, Houston, TX 

· 77084 (Certified Mail) 

949 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Ql'.:FICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

2 4 APR 1980 

Civil Penalty Proceedings 

Docket No. WILK 79-109-PM 

A/O No. 30-01291-05002 

Boonville Quarry Mine 

ALLIED CHEMICAL CORPORATION, 

Respondent Docket No. WILK 79-110-PM 

A/O No. 30-00060-05002 

Jamesville Quarry & Mill Mine 

Docket No.·WILK 79-125-PM 

A/o No. 3o-oooo9-05002 

Norwood Plant Mine 

DECISION 

Appearances: Jonathan M. Kay, Esq., U.S. Department of Labor, New York, 

New York, for Petitioner; 

David M. Cohen, Esq., Allied Chemical Corporation, Morristown, 

New Jersey, for Respondent. 

Before: Judge Stewart 

PROCEDURAL BACKGROUND 

The above-captioned cases are civil penalty proceedings brought pursuant to section llO(a) of the Federal Mine Safety and Health_Act _oL197J, 

30 U.S.C. § 820(a), hereinafter referred to as the Act. 

A total of 12 violations was alleged within these proceedings. All but 

one of these alleged violations were settled by the parties or withdrawn by 

Petitioner because they had been issued in error. 

In a decision issued on October 17, 1979, the proceedings with respect 

to the following citations were dismissed: 

Docket No. 

WILK 79-109-PM 

WILK 79-125-PM 

Citation No. 

210217 

210153 

950 

Date 

09/26/78 

08/30/78 

30 C.F.R. 

56.9-2 

56.9-11 
In the same decision, settlement was approved in three additional citations. 

These citations and settlement amounts were as follows: 

Proposed 

Citation No. Date 30 C.F.R. Penaltx Settlement 

210164 09/13/78 56.9-3 $122 $ 84 

210129 08/ 29/78 56.3-5 305 305 

210140 08/29/78 56.3-8 98 98 

Counsel for Petitioner asserted at the hearing that six additional citations should be withdrawn because they had been issued erroneously. Petitioner thereafter submitted notices of subsequent action which stated that 

the respective citations had been withdrawn. These citations and the mandatory standard which was allegedly violated in each instance are as follows: 

Citation No. Date 30 C.F.R. 

210210 09/26/78 56.9-2 

210212 09/26/78 56.4-23 

210215 09/26/78 56.4-23 

210162 09/12/78 56~ pj.:"]5 

210166 09/03/78 56.14-29 

210154 08/30/78 56.4-23 

In issuing Citation No. 210210, the inspectbr cited 30 c~F.R. § 56.9-2 

and wrote that the backup alarm on a Trojan loader was disconnected. In its 

answer, Respondent.admitted that the backup alarm was disconnected, but· 

asserted that the vehicle was being repaired and could not be operated at 

the time of the inspection. 

Citation Nos. 210212, 210215 and 210154 were issued because two loaders 

and a truck were not equipped with a fire extinguisher. The standard cited, 

however, requires in pertinent part that firefighting equipment which is provided on the mine property shall be strategically located, readily accessible, plainly marked, properly maintained, and inspected periodically. There 

is no requirement therein that each of the vehicles in question be equipped 

with a fire extinguisher. Respondent asserted that other firefighting 

equipment was maintained at the cite. 

Citation No. 210162 was issued because the hook on a crane in Respondent's crushing plant did not have any type of safety latch to prevent the 

accidental discharge of ·an object being moved or hoisted. On the other hand, 

the mandatory standard cited, 30 C.F.R. § 56.19-'/5, requires only that open 

hooks not be used to hoist· buckets or other conveyances. The crane cited in 

this instance was used. to hoist cas.tings, not.: buckets or othe:r. conveyances. 

Citation No. 210166 was issued because the inspector observed the 

operator of a Caterpillar standing outside of the cab of the vehicle while 

its engine was running. The inspector cited 30 C.F.R. § 56.14-29 which 

951 
requires that repairs or maintenance shall not be performed on machinery 

until the power is off and the machinery has been blocked. In its answer, 

the Respondent asserteff.that-the operator of the vehicle stepped out onto 

the track when the inspector arrived. No repairs or maintenance were being 

performed at the time. 

In view of the above, Petitioner's motion to withdraw, Citation Nos. 

210210, 210212, 210215, 210162, 210166, and 210154 is granted. 

Citation No. 210224 

Citation No. 210224 was issued·by inspector Steve Mitchell on 

September 27, 1978, pursuant to section 104(a) of the Act. He cited 

30 C.F.R. § 56.11-1 which requires that safe means of access shall be 

provided and maintained to all working places. 

The inspector issued the citation after observing a cone-shaped accumulation of "muck"·on a platform. He did not actually go into the platform, but observed the accumulation from the ground. The "muck" was 

comprised of broken rock and other finely-ground material which had spilled 

from a feeder at the point where it dumped into a crusher. The material 

was dry at the time, and firmly packed. It ranged in height to a maximum 

of 12 inches. The inspector estimated that it had tdcen at least a week 

to accumulate. 

The platform in question was located alongside.a feeder. It was 15 feet 

long, approximately 24 inches wide and 7-1/2 to 10 feet above the ground. At 

the time the citation was issued, the platform had been provided with a 

3-foot high handrail of light angle iron. The only means of access to the 

platform was provided by a ladder. 

The platform was used when Respondent found it necessary to adjust the 

speed of the feeder to the size of the rock being conveyed. To effect this 

adjustment in speed, certain sheaves on the feeder had to be changed. 

Because orders for different sizes of rock were placed at irregular intervals, the sheaves were changed only at irregular intervals. Winston Henson, 

Respondent's safety supervisor, testified that the platform might be used 

three times in one week and not again for 6 weeks thereaft~r. 

Mr. Henson testified that he had no knowledge of any use of the platform 

other than for changing sheaves. The inspector believed, however, that the 

platform was used for general maintenance of the feeder. This belief was 

inferred from the fact that the platform provided.the only means of access 

to the feeder. This inference is supported by .. the location of- the sheaves--some 

18 inches from the access ladder. There would l:>e little point to constructing 

15 fe.et of platform if its only use was. to.·.allow the changing of sheaves. 

The inspector testified that he had no idea how.frequently the feeder required 

maintenance but that such maintenance was necessary "at least seasonally." 

952 
Mr. Henson also testified that the feeder operator was responsible for 

changing the sheaves and that he cleaned the platform before doing so. 

Petitioner did not establish that the cited condition was in violation 

of section 56.11-1. As noted above, the mandatory standard requires that a 

safe means of access be provided and maintained to all working places. 

"Working place" is defined in section 56.2 to mean "any place in or about 

a mine where work is being performed." The record does not support a finding that work was being performed, had ever been performed in the past or 

would.be performed in the future, while the accumulation was present. At 

best, the record establishes only that the platform was used on an 

irregular basis for changing of sheaves and seasonally for general maintenance. The inspector did not observe anybody on the platform. Petitioner 

presented no evidence which would support an inference that the platform 

had been used or would be used by any of Respondent's employees while the 

accumulation existed. Rather, the uncontradicted testimony of Mr. Henson 

established that the feeder operator cleaned the platform before using it 

to change the sheaves~ This use was infrequent and no showing was made 

that work was performed on the platform or on the feeder at a time when 

the accumulation was present. The regulation is not a housekeeping standard, but one requiring safe access to places where ~9-rk-isbeing performed. The condition, therefore, did not violate section 56.11-1. 

ORDER 

It is ORDERED that the above-captioned civil penalty proceedings are 

hereby DISMISSED. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Jonathan M. Kay, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1515 Broadway, New York, NY 10036 (Certified Mail) 

David M. Cohen, Esq., Allied Chemical Corporation, P.O. Box 1057-R, 

Morristown, ·NJ 07960 (Certified Mail) 

953 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

- OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On behalf of 

E. BRU.CE NOLAND, 

v. 

LUCK QUARRIES, INC., 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 5 APR 1980 

Applicant 

Respondent 

Complaint of Discharge 

and Discrimination 

Docket No. VA 79-102-DM 

MD 79-41 

Leesburg Stone Co. 

DECISION 

Appearances: James Swain, Esq., and Sidney Salkin, Esq., Office of 

the Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Applicant; 

Henry Wickham, Esq., Mays, Valentine, Davenport and Moore, 

Richmond, Virginia, for Respondent, Luck Quarries, Inc. 

Before: Judge Merlin 

The above-captioned case is a complaint of discharge and discrimination 

filed by the Secretary of Labor on behalf of E. Bruce Noland against Luck 

Quarries, Inc. 

A hearing on the merits was held April 8-9, 1980. Prior to the hearing, both parties filed preliminary statements and respondent filed a trial 

memorandum. At the hearing, documentary exhibits were received and witnesses testified on behalf of both parties (Tr. 8-210). At the conclusion 

of the taking of evidence, th~ parties waived the filing of-Written briefs, 

proposed findings of fact and conclusions of law. Instead, they agreed to 

make oral argument and have a decision rendered from the bench (Tr. 211). 

A decision was rendered setting forth findings, conclusions, and determinations with respect to the alleged discriminatory discharge (Tr. 244-259). 

A supplemental hearing concerning relief was held on April 17, 1980. 

At the close of this hearing, a second bench decision was rendered amending the first bench decision on a few matters and setting forth the relief 

granted. 

954 
Bench Decision Dated April 9, 1980 

-- > - --

This is a complaint under section 105(c) of the Federal 

Mine Safety and Health Act of 1977, filed by the Secretary of 

Labor on behalf of the applicant, E. Bruce Noland, alleging a 

discriminatory discharge of Mr. Noland by the respondent, 

Luck Quarries, Inc. 

Section 105(c) of the Act provides: 

(1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger 

or safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant 

for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners 

or applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or 

has testified or is about to testify in any such proceeding, 

or because of the exercise by such miner, representatives 

of miners or applicant for employment on behalf of himself 

or others of any statutory right afforded by this Act. 

(2) Any miner or applicant for employment or representative of miners 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 alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy of the- complaint to the respondent and shall cause such investigation 

to be made as he deems appropriate. Such investigation 

shall commence within 15 days of .the Secretary's receipt of 

the complaint, and if the Secretary finds that such complaint 

was not frivolously brought, the Commission, on an expedited 

basis upon application of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on 

the complaint. If upon such investigation, the Secretary 

determines that the provisions of this subsection have been 

violated, he shall immediately file a complaint with the 

Commission with service upon the alleged violator and the 

955 
_miner, applicant for employment, or representative of miners 

alleging such discrimination or interference and propose an 

order grantirtg appropriate relief. The Commission shall 

afford an opportunity for a hearing; (in accordance with section 554 of title 5, United States Code, but without regard 

to subsection (a)(3) of such section) and thereafter shall 

issue an order, based upon findings of fact, affirming, 

modifying or vacating the Secretary's proposed order, or 

directing other appropriate relief. Such order shall become 

final 30 days after its issuance. The Commission shall have 

authority in such proceedings to require a person committing 

a violation of this subsection to take such affirmative 

action to abate the violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay 

and interest. The complaining miner, applicant, or representative of miners may present additional evidence on his 

own behalf during any hearing held pursuant to this 

paragraph. 

* * * 

Jurisdiction under the Act was admitted by both parties. 

I will, therefore, proceed to consider the evidence. 

Several witnesses testified on behalf of both parties. 

Many conflicts exist in the evidence which are necessary to 

resolve in order to decide this case. It is undisputed 

that from March 1978 until April 18, 1979, applicant was a 

trucker who with his own truck hauled rock from the respondent's quarry to its customers at construction sites. In 

addition, by all accounts applicant and respondent had had a 

stormy relationship for a number of months over several 

matters including proper haul rates to be paid by respondent 

to the truckers. During the week of April 17th, applicant 

was the representative for the owner-operator truckers who 

hauled stone for the respondent. 

The process for hauling stone is as follows:- usually a 

Euclid truck receives stone from bins and deposits the stone 

in storage piles and thereafter, a front-end loader takc.s the 

stone from the storage piles and puts it on trucks such as 

the applicant's. 

The Euclid truck is larger and heavier than the trucks 

of the owner-operator haulers. On April 17, a front-end 

loader was broken and because of this the applicant was 

ordered to move his truck under a bin so as to receive 

stone directly from a bin. 

956 
. Applicant testified that he refused to load under the 

bin because. he felt it was unsafe due to dust coming from 

the bins an<i· due· ·to-rocks falling off the conveyor belt 

which runs along the top of and alongside the bins. I 

recognize that many conflicts exist in the evidence. However, after carefully listening to all the witnesses, and 

considering the matter, I accept as most credible applicant's testimony as to why he refused to load from the bin. 

I note that the applicant's testimony in this respect is 

corroborated by the fact that on the evening of April 17, 

1979, he telephoned a Virginia State mine inspector to complain about the danger from the bins. The inspector testified to the same effect. I also accept testimony which 

shows that the truck operator has to leave his truck in 

order to press the button which opens the bin. I further 

accept the applicant's testimony that on April 17 he 

received a dusting when he went under the bin and that he 

then told the operator's superintendent that he did not want 

to load under the bin due to dust and falling rock, but that 

when the superintendent told him to load or leave·, the applicant in fact loaded his truck. 

After loading the stone directly from the bin, applicant returned to the weighing off ice and had an argument 

with both the superintendent and the foreman. The superintendent testified that on April 17, 1979, the applicant 

merely stated that he did not want to be a Euclid driver 

but that he gave no reason. I find this version inherently 

improbable and I reject it. The applicant was an intelligent and articulate witness. I find more credible applicant's testimony that in protesting about loading from the 

bin he referred to the danger from dust and falling rocks; 

that is, he gave specific reasons why he did not want to be 

like a Euclid driver. Also in this connection, I accept the 

testimony of two other truckers who stated at the hearing 

that the problem of dust and falling rocks previously had 

been discussed with management and that at the subsequent 

meeting of April 18, 1979, the truckers agreed they did not 

want to load directly from the bins because of the dust. 

Finally, the written statement of respondent's foreman, 1/ 

whom the respondent did not call to testify, expressly sets 

forth that on April 17, 1979, the applicant told the superintendent and him (the foreman) that loading from the bins 

±./ Admission of this exhibit was agreed to 

However, it appears from the administrative 

inadvertently not admitted into the record. 

Government Exhibit No. 1. 

957 

at the pre-hearing conference. 

transcript that the exhibit was 

It is hereby admitted as 
was injurious to his (the applicant's) health. Based upon 

the foregoing, I find that on April 17, 1979, the applicant 

made a h~~l~!!-~ng .§.afety complaint to the operator. 

As already noted, the applicant and the Virginia State 

mine inspector testified that on the evening of April 17, 

1979, the applicant telephoned the inspector to register a 

health and safety complaint. According to the inspector, 

the applicant complained about (1) loading under the bins 

which exposed the truckers to silica dust, (2) lack of 

safety glasses and (3) lack of hard hats. I accept the 

testimony which shows that on the morning of April 18, 1979, 

at a meeting of the truckers, the truckers told the applicant who, as already noted, was their representative for 

that week, that they did not want to load under the bins. 

Applicant then returned to the office where he was fired by 

the superintendent. In accordance with the foregoing, I 

again conclude that applicant made a safety complaint notifying the operator of an alleged health and safety danger, 

in accordance with section 105(c) of the Act. 

I further conclude that the applicant's saf~ty complaint 

was made in good faith. The applicant's testimony regarding 

his fears from silica dust is accepted as sincere. However, 

I note that it has been held under the 1969 Mine Act that a 

miner does not have to demonstrate his state of mind at the 

time he makes the complaint. The Court of Appeals for the 

District of Columbia Circuit specifically declined to impose 

either a "good faith" or "not frivolous" test upon such complaints or to inquire into the merits of these complaints. 

Munsey v. Federal Mine Safety and Health Review Commission, 

595 F.2d 735 (1978). Other interpretations of the 1969 Act 

by the Court of Appeals for the District of Columbia Circuit 

issued bet'ore the adoption of the 1977 Act were expressly 

accepted by Congress when it enacted the 1977 Act. S. Rep. 

No. 95-181, 95th Cong., 1st Sess. 36. I have no reason to 

believe that the rule in Munsey also would not be accepted 

since it comports with the broad interpretation of the 1977 

Act Congress repeatedly said it wanted. The safe~y complaint in this case, therefore, more than satisfies applicable law. 

I acknowledge evidence which indicates dust is adequately controlled at this quarry. However, as the Court 

of Appeals' decision cited above demonstrates, the issue 

here is not whether there was a dust violation or an actual 

or potential threat to health or safety but only whether a 

protected safety complaint was made. 

958 
Congress wanted to encourage the making of safety complaints and it has therefore extended very great protection 

to the making ·at· those complaints. That is what this law 

and in particular, this section of this law is all about. 

We now turn to the question of motivation for the 

discharge. Why was the applicant discharged? The operator 

has contended that the applicant was discharged because of 

his disputes with management over pay and a myriad of other 

issues unrelated to safety. A review of the decisions of 

the administrative law judges of this Commission in discrimination cases reveals that applicants in these cases more 

often than not are, to put it mildly, not management's 

favorites. Admittedly, there were many matters of contention, including rates of pay, between this applicant and 

this operator. However, the evidence convinces me that the 

motivating and precipitating cause for the discharge of the 

applicant on April 18, 1979, was the safety complaint he 

made the day before on April 17, 1979. As already noted, I 

accept the applicant's testimony regarding what happened on 

April 17 and 18, 1979. · 

In addition, the operator's superintendent testified 

that the operator had decided to get rid of the applicant 

and that when on April 17, 1979, applicant refused to load 

under the bin, the superintendent told the office manager 

this was their chance to get rid of the applicant. So too, 

the office manager testified they had been looking for anything to let the applicant go. The testimony of the operator's sales manager was to the same effect. It is not for 

me in this proceeding to decide how respondent could have 

properly dispensed with applicant's services. For present 

purposes, what is clear is that respondent's overwhelming 

desire to rid itself of an individual it considered troublesome overrode its judgment to such an extent that the circumstances under which it discharged the applicant, i.e., 

when he was making a safety complaint, were the very-o~es 

proscribed and prohibited by the Federal Mine Safety and 

Health Act of 1977. .. 

I have carefully reviewed the case law respondent's 

counsel has so ably brought to my attention in his trial memorandum. However, the substantive principles as well as the 

rules regarding burden of proof in the cited cases are not, 

and never have been applicable to mine safety cases. Moreover, under the evidence as already set forth, the applicant 

here would prevail under many of these tests even if they 

were relevant, which they are not. See, e.g., Marshall v. 

Commonwealth Acquarium, 611 F.2d 1 (1st cir-: 1979). 

959 
Finally, and most importantly, I must point out that 

the proof of discriminatory discharge in this case goes far 

beyond "'h-at ·-ts· required by the Federal Mine Safety and Health 

Act. The legislative history of this Act states that, "Whenever protected activity is in any manner a contributing factor to the retaliatory conduct, a finding of discrimination 

should be made." (Emphasis supplied.) S. Rep. No. 95-181, 

95th Cong., 1st Sess., 36. The Conference Committee adopted 

the Senate version of this section of the law. S. Rep. 

No. 95-461, 95th Cong., 1st Sess. 51-53. The foregoing quotation from Senate Report 95-181 is a plain explanation of 

the mandate of this statute. I am bound by it. The evidence in this case goes far beyond the requirements of this 

Act. The applicant must prevail. 

Accordingly, I conclude the applicant's claim of discriminatory discharge is well founded and that relief should 

be granted in accordance with the statute. 

Applicant testified that because his services with Luck 

Quarries were terminated he could not keep up the payments 

on his truck and so was forced to sell it in late May or 

early June. According to the applicant he lost all his 

equity since he sold the truck for the amount he owed on it. 

As set forth above, section 105(c)(2) provides in pertinent part: "The Commission shall have authority in such 

proceedings to require a person committing a violation of 

this subsection to take such affirmative action to abate 

the violation as the Commission deems appropriate including, 

but not limited to, the rehiring or reinstatement of the 

miner to his former position.with back pay and interest." 

With respect to relief, the legislative history also 

is instructive. The pertinent Senate Report states as 

follows: "It is the Committee's intention that the Secretary propose, and that the Commission require, all relief 

that is necessary to make the complaining party w~ole and 

to remove the deleterious effects of the discriminatory 

conduct including, but not limited to, reinstatement with 

full seniority rights, back pay with interest, and 

recompense for any special damages sustained as a result 

of the discrimination." S. Rep. No. 95-181, 95th Cong., 

1st. Sess. 37. 

In this case, the applicant was temporarily reinstated 

on August 8, 1979, pursuant to my order. However, the order 

of temporary reinstatement was not truly effective because 

applicant had lost his truck and could not resume his former 

status without a truck to haul stone. 

960 
The statutory directive with respect to relief is clear. 

The respondent has the duty to make the applicant whole, 

that is, put -him i.U-the position he would be in if there had 

been no discriminatory discharge. The relief awarded must 

effectuate this purpose. The statute is too. clear to admit 

of any other approach. 

First, the respondent's responsibility to make 

the applicant whole requires replacement of the lost equity 

in the truck. The applicant testified regarding the cost 

of the truck,. his down payment, refinancing, repairs and 

sale price. All these figures are easily verifiable. I 

order counsel for both parties to confer and advise me one 

week from today in this hearing room as to the amount 

representing the applicant's equity in the truck which 

they have agreed upon. 

I have not overlooked respondent's argument that the 

loss of the truck is attributable to the Secretary of Labor 

because the Secretary's investigation did not proceed 

promptly. It may be that in some instances the-Secretary 

does not move fast enough in these cases. However, in this 

case, the applicant's uncontradicted testimony is that he 

lost his truck in late May or early June. The Secretary 

could not be expected to complete his investigation in that 

short span of time. The responsibility for this applicant's 

loss of his truck is wholly the respondent's, not the 

Secretary's. 

Secondly, the respondent must pay the applicant for the 

net income he lost as an owner-operator hauling stone from 

April 18, 1979, until the date such payment is made. It 

should be possible for the parties to agree upon the gross 

income respondent reasonably could have expected to receive 

during the period in question. I recognize that at the hearing the parties offered evidence which gave widely varying 

estimates as to the expenses of an owner-operator hauling 

stone. Both estimates appear to me to be extreme. It 

should be possible for the parties to arrive at a -mutually 

agreeable figure as to expenses without the necessity of 

an expensive and time-consuming hearing on the matter. 

Accordingly, I order counsel for both parties to confer and 

advise me one week from today in this hearing room as to the 

net income figure they have agreed upon. Of course, a 

deduction from the net income applicant reasonably could 

have been expected to receive as a trucker must be made in 

the amount of applicant's actual earnings. The amount of 

applicant's actual earnings also should be easily ascertainable. In this connection, I conclude from applicant's testimony yesterday that he did all he could to mitigate 

961 
d~mages. In particular, I conclude that applicant was not 

bound to accept a job at a quarry near his home which he 

believed wouldno-r nave been profitable. 

Interest on all past due amounts will run at the rate 

of 9 percent until the date of payment. 

All references to the discharge must be removed from 

the applicant's file. 

In light of the foregoing it is ORDERED that: 

1. Respondent pay applicant for the equity in the 

truck which he was forced to sell due to the discriminatory discharge. 

2. Respondent pay applicant the net income he would 

reasonably have been expected to earn from April 18, 1979, 

to.the date of payment, less applicant's actual earnings 

for this period. 

3. Respondent pay interest at the rate of 9 percent. on 

the foregoing amounts. 

4. All references to the discriminatory discharge be 

removed from applicant's file. 

5. Respondent reinstate applicant as an owner-operator 

hauling stone as soon as applicant has a truck and requests 

such reinstatement. 

Bench Decision Dated April 17, 1980 

On Wednesday last, April 9, 1980, I rendered a bench 

decision, holding that applicant had proved his case under 

section 105(c) of the Federal Mine Safety and Health Act of 

1977, and was entitled to relief. 

As part of the relief due applicant, I held respondent 

had the responsibility to replace applicant's equity in the 

truck. Secondly, I held that respondent must pay applicant 

for the net income he lost as an owner-operator truck hauler 

from April 18, 1979, and that from this amount, applicant's 

actual earnings should be deducted. 

I ordered counsel for both parties to confer and advise 

me with respect to the net income figure they agreed upon 

and as to the figure regarding the equity in the truck which 

they agreed upon. 

962 
After conferring at length this morning, counsel for 

both partie~_a4yise-.me-that they have agreed to the following amounts: 

1. $4,770 is the equity in the truck. 

2. $40,000 is the lost gross income, less $20,000 

for expenses, for a lost net income from trucking of 

$20,000. 

3. Applicant's actual earnings for the period were 

$4 '647. 

I accept the foregoing amounts. 

In accordance with the bench decision, the amount of 

$4,647 must, of course, be deducted from the net lost 

income of $20,000, resulting in a total lost net income of 

$15,353. 

Accordingly, applicant is entitled to $15,35.3-plus 

$4,770, which is $20,123. 

It is hereby ORDERED that respondent pay $20,123 

within 30 days. 

In the bench decision last week, I ordered 9 percent 

interest on the amount due. The bench decision award of 

interest is amended as follows: inasmuch as exactly a 

year has elapsed since the discriminatory discharge on 

April 18, 1979, in order to achieve an approximate average, 

the interest due will run beginning October 18, 1979, until 

the date respondent mails the check for the above-stated 

amount to the Solicitor on behalf of applicant. The parties have agreed to this change in the award of interest. 

The bench decision ordered respondent to reinstate the 

applicant. The bench decision in this respect is amended 

as follows: the right to reinstatement shall exist for 

45 days from the date respondent mails the check, in 

accordance with the relief granted. This should give 

applicant sufficient time to obtain a truck and decide 

whether he wishes to resume his relationship with 

respondent. 

The parties have agreed respondent should make the check 

payable to the applicant and mail it to him in care of the 

Solicitor. 

The remainder of the bench decision issued on April 9, 

1980, remains in effect, as issued. 

963 
ORDER 

The bench decision -dated April 9, 1980, as amended and supplemented 

by the bench decision dated April 17, 1980, is hereby AFFIRMED. 

The bench decision dated April 17, 1980, is hereby AFFIRMED. 

The respondent is 

set forth herein on or 

Distribution: 

$20,123 plus interest as 

Assistant Chief Administrative Law Judge 

James H. Swain, Esq., and Sidney Salkin, Esq., Office of the 

Solicitor, U.S. Department of Labor, Room 14480, Gateway 

Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) -- Henry Wickham, Esq., Mays, Valentine, Davenport and Moore, F & M 

Center, Box 1122, Richmond, VA 23208 (Certified Mail) 

Administrator, Metal and Non-Metal Safety and Health, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Standard Distribution 

964 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

\lFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 8 APR 1980 

Contest of Citation 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 79-440-R 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 80-183 

Ireland Mine 

DECISION 

Appearances: James H. Swain, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Michel Nardi, Esq., Consolidation Coal Company, for Respondent. 

Before: Judge Lasher 

These proceedings arose under section 105(b) of the Federal Mine Safety 

and Health Act of 1977. A hearing on the merits was held in Wheeling, 

West Virginia, on March 18, 1980, at which both parties were represented by 

counsel. After considering evidence submitted by both parties and proposed 

findings of fact and conclusions of law proferred by counsel during closing 

argument, I entered an opinion on the record. 1/ My oral decision containing findings, conclusions and rationale appears below as it appears in the 

record, other than for minor corrections in grannnar, punctuation and the 

excision of dicta. 

This proceeding which involves two dockets, Civil Penalty Docket No. WEVA 80-183 and Contest of Citation Docket 

No. WEVA 79-440-R, both of which have been consolidated-by 

my order earlier in this hearing, involve a single citation, 

No. 0807767, which was issued on August 27, 1979, and which 

alleges a violative condition as follows: "Repairs were 

being performed on the No. 26 mining machine by 

Glen Strohanyber, [2/] mechanic, and the power was on, in 

No. 2 entry of 2 Mains East, ID 001, supervised by 

Ray Frankl in •11 

1/ Tr. 108-117. I./ The correct name is Emerson Strohsnider. 

965 
The hearing in this matter was conducted pursuant to 

section 105(b) of the Federal Mine Safety and Health Act 

of 1977 and b_o_th-f)ar~ies were very well represented by 

counsel at the hearing. Counsel have complied with the 

requirements of the Administrative Procedure Act by presenting argument at the close of hearing, thus making it 

possible for me to give my decision at this time on the 

record, which oral decision will subsequently be incorporated in a written decision and served upon the parties. 

The citation (Exhibit M-1) charges the Respondent coal 

operator with· a violation of 30 C.F.R. § 75.1725(c) which 

provides: "Repairs or maintenance shall not be performed on 

machinery until the power is off and the machinery is blocked 

against motion, except where machinery motion is necessary 

to make adjustments." 

The heading of 75 .1725 is "Machinery and Equipment; 

Operation and Maintenance." As pointed out by counsel for 

Respondent during cross-examination of MSHA witness, inspector Kenneth Williams, a statutory provision related .to 

75.1725, namely, 30 C.F.R. § 75.509, covering '~Electric 

Power Circuit and Electric Equipment; De-energization," provides, "All power circuits and electric equipment shall be 

de-energized before work is done on such circuits and equipment, except when necessary for troubleshooting or testing." 

I note initially that we have a statutory provision and 

and implementing regulation which appear to apply to the 

factual situation which I am about to describe. First of 

all, I find that the condition described in the citation did 

occur since there is no specific or general dispute concerning the general allegations thereof. In addition, it appears 

that on August 27, 1979, Inspector Williams, while engaged 

in a Triple A inspection of Respondent's Ireland Mine 

observed the mechanic, Strohsnider, changing a hose on a Joy 

Manufacturing Company continuous miner. According to Inspector Williams, and I so find, the trailing cable attached to 

the continuous miner which is approximately 600 feet long, 

was plugged into a power center. The trailing cable was 

therefore energized. I also find that Strohsnider advised 

the inspector that he had cut the breaker off, or words to 

that effect, and when asked by the inspector if he knew 

that the power was supposed to be off the trailing cable 

too, that Strohsni.der said, "No." When Inspector Williams 

posed the same question or a similar question to the foreman who was present, the foreman replied, "I thought it was 

de-energized." 

966 
I find that the trailing cable was attached to the continuous mi!!~r~:.?t: J:_he._time observed by Inspector Williams--

at two points, the first point being where it is attached to 

the outside of the miner but not "plugged in". to the miner, 

and that it ran a distance of approximately 8 to 12 feet to 

the junction box where it became joined to the continuous 

miner and where it ran for approximately 2 more feet while 

energized. I find that the mechanic, Strohsnider, was 

engaged in replacing a hydraulic hose on the continuous 

miner in question at the time the citation was issued by the 

inspector and that the process of changing such a hose could 

be either simple or lengthy, according to the testimony on 

this record, and could range from a matter of minutes to 

much longer to complete. 

I find that MSHA had a policy of enforcement ranging 

back to approximately 1973 or 1974 which constituted an 

administrative interpretation of the regulation by the 

administering agency to the effect that turning the power 

off meant unplugging the trailing cable to the continuous 

miner at the power center and did not include witlifn the 

definition of turning the power off the act of turning off 

the circuit breaker on the continuous miner--which I note 

was the second point of connection of the trailing cable 

and the terminal point of the trailing cable. 

I find, based upon the inspector's testimony, that the 

Respondent was aware of the MSHA interpretation to this 

effect and that the Respondent's general policy was to 

follow the MSHA interpretation. 

I also find that part of MSHA's enforcement policy was 

to permit a mine operator in at least two situations.to 

perform two types of repairs without unplugging the trailing cable from the power center; namely, when bits on the 

continuous miner were changed and when water sprays were 

cleaned. Both of these procedures take only a few seconds 

and have the incidental health and safety effect of keeping 

down dust. The Respondent's contention is that by turning 

off the circuit breaker on the continuous miner, it complies 

with section 75.1725(c), since such act constitutes putting 

the piece of machinery in such a state that the "power is 

off." The Government contends that for the power to be 

off of the piece of machinery the trailing cable must be 

unplugged at the power center. 

I am constrained to reject the Respondent's view for 

two reasons even though there are certain equities involved 

in the instant fact situation which serve to bolster the 

interpretation urged by the Respondent. To begin with, I 

967 
believe that regulation 75.1725(c) must be read in light of 

the statutory provision, section 75.509. I find specifically 

that the c-ont·inuoffs-miner involved is a piece of electric 

equipment, as that term is used in 75.509, and is also 

"machinery" as that term is used in 75.1725(c). Also preliminarily, I find that none of the exceptional circumstances 

mentioned in the two regulations are applicable here, i.e., 

that there was troubleshooting or testing going on or that 

machinery motion was necessary to make the repairs which 

Strohsnider was engaged in. 

The record is clear based both on the "testimony of the 

inspector and also of the Respondent's witness, Mr. Allen 

Newcome, that the circuit breakers can malfunction and 

become defective. Testimony and evidence in the record is 

also clear that at least to some extent for a minimum of 

2 feet electric current does flow into the continuous miner 

and that should a malfunction occur electric current would 

flow beyond the 2-foot distance into the piece of machinery 

involved. So to that technical--and I would say very 

technical standpoint--I conclude that the two regulations 

should be construed to indicate that the contin~ous miner 

is energized in the sense of section 75.509, and that the 

power is on the continuous miner within the meaning of section 75.1725 even though the circuit breaker rs turned 

off--when the trailing cable is plugged into the power 

center. The cases are legion to the effect that the Federal 

Coal Mine Health and Safety Act is to be interpreted 

liberally to the effect to protect the safety of the miners. 

I therefore do follow a liberal interpretation of these 

two regulations in so finding. 

A second basis for this conclusion, which is the resolution of the critical issue posed in this case, is that I 

also find the trailing cable to be part of the machinery. 

I must confess that my original inclination as the hearing 

started out was to the contrary. lhe evidence, however, 

does indicate that the trailing· cable, although not part of 

the original equipment of the Joy continuous miner-,- is 

permanently attached to the continuous miner at two points. 

Particularly, it becomes permanently attached to the junction box. As Mr. Newcome, who I recognize as a master 

mechanic and electrical expert, pointed out, the trailing 

cable, once it is connected to the junction box, becomes 

part of the box to the extent that the total connection, 

that box, must be certified as permissible. 

968 
There is also evidence that the trailing cable can thus 

remain on_ the continuous miner for as long as a year, 

al though I--do---have- t-rr mind Mr. Newcome' s testimony that sometimes it has to be changed in the same shift that it is connected. I analogize this generally to a lamp, where the 

cord at one end has a plug in it and at the other end it is 

connected to the lamp. I think once the cord is attached 

to the lamp permanently or in that manner it become part of 

the lamp and thus, as in the case of the continuous miner, 

the power is shut off by unplugging it at the point where it 

connects to a flow of electricity, in this case the power 

center. Turning off the switch on the lamp turns the light 

out but does not render the lamp safe to work on as long as 

it is plugged in. 

Mr. Newcome, as counsel for the Government points out, 

did concede that the safest means of deenergizing the continuous miner was to unplug it at the power center. 

I find therefore that the trailing cable is part of the 

continous miner and that the trailing cable was g.o.t- deenergized, or in the terms of section 75.1725, had ri:ot had the 

"power cut off" at the time the condition was observed by 

the inspector. Accordingly, a violation of section 

75.1725(c) did occur and I find that the citation was 

properly issued in those circumstances. 

Turning now to the statutory criteria, I find, based 

upon stipulation, that in the 2-year period prior to the 

issuance of the citation that the Respondent had 922 previous violations; that the Respondent is a large operator; 

that following the issuance of the citation Respondent 

proceeded in good faith to achieve rapid compliance with 

the violated safety standard; and that any penalty I assess 

in these proceedings will not be beyond the economic ability 

of the Respondent to pay and simultaneously remain in 

business. 

The Government has not made any contention of ~ross 

negligence or ordinary negligence and there is no need for 

me to belabor the point other than to note that Respondent's 

basic bone of contention is, in my opinion, justified. I 

believe that we are in this hearing today because of Respondent's difficulty in dealing with the enforcement policy 

of the Government and possibly even more specifically the 

lack of precision of the wordsmiths which the Government 

employs to draft these regulations. 

* * * * * * * 

969 
I think the ambiguities can be easily catalogued by 

one or two people which would save a tremendous amount of 

problems in. the .. ev.er7"day operation of the mines as well as 

in the admin-istration of the administrative justice system 

in trying to clarify these things on the basis of fact 

situations which I believe like this one many times are 

not typical of those which arise in the mines. I find 

the Respondent's proceeding to try to obtain a clarification in this case is in good faith and I do consider that 

in my evaluation of the negligence factor although I also 

believe the violation was probably one which occurred through 

some negligence based upon the inspector's account of the 

foreman's reply, to wit: "I thought it was de-energized." 

In any event, the amount of the penalty will be significantly 

decreased on the basis of the negligence factor--and the 

seriousness factor. 

Briefly, the inspector's testimony (with respect to 

gravity) does indicate that the possibility of any hazard 

coming to fruition was very remote and his description of 

possible injuries was devoid of any medical precision. 

Therefore, I am inclined to fully credit the evidence presented by Respondent, which was well analyzed and thorough 

with respect to seriousness, indicating: that no coal was 

being mined; that the machine was not being operated at the 

time; that the hose is separate from the electrical circuit; 

that the breaker on the machine was knocked to the off position; that there are several motors, I think four, on the continuous miner; that the main motor, the pump motor, has to be 

energized before the other motors can be engaged; that the 

Ireland Mine is. an open mine in the sense that the visibility 

is good; and that the mechanic, Strohsnider, was standing up 

and visible to anyone standing on the other side of the machine. 

Finally, I note that there is no contention of any 

serious degree of gravity from the Government. I find 

that this was not a serious violation. Considering the 

six statutory criteria, a penalty of $100 is assessed in 

this case. 

ORDER 

Respondent, if it has not previously done so, is ORDERED to pay to the 

Secretary of Labor the sum of $100 within 30 days of the issuance date of 

this decision. 

#~6/ /,~-(,It-- Michael A. Lasher, Jr., Judge 

970 
Distribution: 

James H. SW..a.in_,___Esq-. ,--Office of the Solicitor, U.S. Department of 

Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104 

(Certified Mail) 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900-15th Street, 

NW., Washington, DC 20005 (Certified Mail) 

971 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WARNER COMPANY, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

2 8 APR 1980 

Civil Penalty Proceeding 

Docket No. PENN 79-161-M 

A.O. No. 26-00265-05009I 

Cedar Hollow Plant and Quarry 

DECISION AND ORDER 

Appearances: Barbara Kaufmann, Esq., Covette Rooney, - Esq.-, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for the Petitioner; 

Thomas McGoldrick, Esq., Bala Cynwyd, Pensylvania, for the 

Respondent. 

Before: Judge Kennedy 

This matter came on for an evidentiary hearing in Reading, Pennsylvania 

on April 24, 1980. The gravamen of the charge was that the operator failed 

to ensure strict compliance with the mandatory safety standard that 

requires electrically powered equipment be deenergized and locked out 

before mechanical work is done on such equipment, 30 CFR 56.12-16. As a 

result of this dereliction, it was charged the Lime Plant Foreman lost 

his right hand when he attempted to remove a blockage in a chute feeding 

the screw conveyor with the power on. For the extremely serious violation 

charged and for the foreman's failure to exercise the high degree of 

care imposed by the Act, the Assessment Office proposed a penalty of 

$5,000. Upon contest, the solicitor recommended the penalty be increased 

to $10,000. 

The operator admitted the fact of violation but claimed its foreman's 

misconduct and negligence was so unforeseeable and unpreventable as to 

make it unjust to impute his actions to the operator for the purpose of 

determining the amount of the penalty warranted. The operator further 

claimed the contributory negligence of its nonsupervisory personnel 

(rank-and-file miners) was not attributable to it as a matter of law. 

972 
In response to the trial judge's pretrial order the parties briefed 

the issues of strict liability and imputed negligence. On April 18, 1980 

the trial judge issued an order establishing as the law of the case (1) 

that the Mine Sa~~ty-Act_iS_ a strict liability statute, (2) an operator 

is vicariously liable under the doctrine of respondeat superior for both 

the violations and the negligence of its employees and officers of 

whatever rank, (3) the negligence of an operator's agents and employees 

of whatever degree is imputable to the operator for the purpose of 

assessing an appropriate civil penalty, and (4) the operator may show in 

mitigation that the conduct of an agent was so aberrational in nature 

as to be substantially or totally unforeseeable or unpreventable. 

After hearing the parties at length and carefully considering the 

evidence adduced, the trial judge entered the following bench decision: 

Based on a preponderance of the reliable, probative and 

substantial evidence, and after carefully observing the 

demeanor of the witnesses and probing their veracity, 

I find: 

1. The violation charged did, in fact, occur. 

2. That it was extremely serious and created a hazard 

of a fatal or disabling injury. 

3. That the violation occurred as a result of the Lime 

Plant Foreman's (Mr. Martyniuk's) thoughtless, if not 

reckless, disregard for compliance with the mandatory 

safety standard cited. 

4. That the operator's defense in mitigation of the penalty, 

namely unforeseeable and unpreventable employee misconduct is unpersuasive. It is unpersuasive because the 

operator knew or should have known that before the 

accident its lock-out procedure was inadequate and 

widely disregarded. There has been much improvement 

since then. The operator's defense is also unpersuasive 

because under the circumstances Mr. Martyniuk's conduct 

as well as that of Mr. Thompson and Mr. Richardson 

was not aberrational or unforeseeable but ordinary human 

error that stemmed from a lack of safety consciousness. 

Only conduct that is willfully reckless or obviously 

inexplicable, demented or suicidal can reduce imputable 

conduct amounting to gross negligence to that of slight 

negligence. 

5. The operator's defense is also unacceptable as a matter 

of law. The Mine Safety Law is a strict liability statute 

under which an operator is liable without fault for the 

failure of its employees to exercise the high degree of 

care imposed by the Act. Here, no basis is shown for refusing 

to impute, without diminution, the gross negligence of 

Messrs. Martyniuk, Thompson and Richardson to the operator. 

973 
6. That to insure a change in the widespread attitude of 

- disregard for safe practices that previously existed on the 

part ol_m~n9.gement and labor in this facility, the Secretary 

should announce his intention to invoke the authority of 

section llO(c) of the Act to prosecute any individual civilly 

or criminally for any future violations of 30 CFR 56.12-16. 

7. That the premises considered and after a careful balancing 

of the equities, the amount of the penalty warranted and 

that best calculated to deter future violations and insure 

voluntary compliance is $7,500. 

Accordingly, it is ORDERED that the operator pay a penalty of 

$7,500 on or before May 15, 1980. 

The foregoing is a true and correct copy of the decision entered on 

the record in this matter on April 24, 1980. It is ORDERED, therefore, 

that the same be, and hereby is, ADOPTED AND CONFIRMED as the trial 

judge's final decision in this matter. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Barbara Kaufmann, Esq, U.S. Department of Labor, Office of the Solicitor, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Thomas J. McGoldrick, Esq., Cunniff, Brya & McAleese, 1 Bala Cynwyd Plaza, 

Bala Cynwyd, PA 19004 (Certified Mail) 

974 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333W. C(,LFAX AVENUE 

DENVER, COLORADO 80204 

I 9 APR 1980 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION {MSHA), ) 

Petitioner, 

v. 

SUN LANDSCAPING AND SUPPLY COMPANY, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

~~~~~~~~~~~~~~~~~~·) 

DECISION 

Appearances: 

CIVIL PENALTY PROCEEDING 

DOCKET NOS. WEST 79-278-M 

WEST 79-334-M 

A/O CONTROL NOS. 02-01915-05001 

02-01915-05002 

WHITE MARBLE MINE 

Mildred L. Wheeler, Esq., Office of the Solicitor, Upited-states Department 

of Labor, 450 Golden Gate Avenue, Box 36017, Room 11071, Federal Building, 

San Francisco, California 94102 

for Petitioner 

W. T. Elsing, Esq., 34 West Monroe, Suite 102, Phoenix, Arizona 85003 

for Respondent. 

Before: Judge John J. Morris 

STATEJ.~ENT OF THE CASE 

In two cases petitioner, the Secrectary of Labor, on behalf of the Mine 

Safety and Health Administration; charges that respondent, Sun Landscaping and 

Supply Company, violated various mandatory safety regulations promulgated under 

the Federal Mine Safety Act of 1969, 30 U.S.C. § 801 et~·· {amended 1977). 

Pursuant to notice, a hearing on the merits was held on March 19, 1980 in 

Phoenix, Arizona. 

Glenn R. Peaton testified for MSHA. Al Leon testified for Sun Landscaping and 

Supply Company. MSHA waived its right to file a post trial brief. SUN filed a 

brief. 

ISSUES 

The issues are whether MSHA has jurisdiction over SUN, and if jurisdiction 

exists, did the alleged violations occur. 

97~ 
-2-

JURISDICTION 

MSHA argues SUN was in "full operation" crushing white marble on the day of 

the inspection and is therefore subject to the Act (Tr 44). 

I reject MSHA's contention since the statutory test is not whether a mine 

is in "full operation" but whether its products enter commerce or affect commerce, 

30 U.S.C. § 803. Commerce is defined as interstate commerce, 30 U.S.C. § 802 § 3(b). 

SUN's position is that jurisdiction can only be based on a finding that SUN 

is involved in interstate commerce. 

To review SUl~'s argument, it is necessary to consider the uncontroverted 

facts. On the day of the inspection SUN, with 7 employees,. gad-been in operation 

for three days. SUN intended to mine white marble, crush it, and sell it for 

landscaping supplies (Tr 21, 55, 58). 

The issue is whether the described activity and SUN's future intentions 

estabI:tsh coverage under the Act. 

A case similar to the factual situation here can be found in 

Godwin v. OSHRC 540 F2d 1013 (9th Cir. 1976). In that case merely engaging in 

the activity of clearing land for later intended grape production was held to 

affect commerce. The Court .observed that clearing land is an integral part of the 

manufacture of wine and therefore commerce is "affected" by the activity. The 

same reasoning applies here. The setting up of its mining facilities by SUN, with 

an intent to sell minerals in the future, affects commerce. 

In Godwin the Court of Appeals was considering the coverage of the Occupational Safety and Health Act of 1970 (29 U.S.C.§651 et~.). In the OSHA Act 

an employer is subject to the Act if his activities "affect commerce" 29 U.S.C. § 

652(6). This exact terminology appears in Section 4 of the Federal Mine Act, 

30 u.s.c. § 803. 

976 
-3-

Since there is no language to restrict the broad coverage implied in the 

Federal Mine Act and in view of the declared intent of the Congress in relation 

to the safety and health of miners, I conclude that jurisdiction extends to new 

operations as here where there is an intent by a mine operator to sell products 

in the future. 

An example of the s"ize of enterprises which have been determined to have an 

affect on commerce may be found in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82 

(1942). In Wickard a farmer exceeded his wheat allotment of 11.1 acres by an 

additional 11.9 acres. The farmer's contribution to the wheat market was obviously 

microscopic in relation to the total market. Nevertheless, the farmer was held 

to come within the regulatory scheme of the Agricultural Adjustment Act of. 1938 

(as amended). 

Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed, 2d 290 ·.(1964') 

a civil rights case, cited by SUN does not support its view. In Katzenbach, the 

Court declined to overturn a Congressional Act when the legislators have a 

rational basis for following a chosen regulatory scheme necessary for the 

protection of interstate commerce. 

The power of Congress in the field of protecting the safety and health of the 

miners is broad and sweeping. Congress has determined that the disruption of 

production and loss of income to operators and miners as a result of mining 

accidents unduly impedes and burdens connnerce. Marshali-v. Bosack 463 F. Supp. 

800 (E. D., Pa. 1978). 

_Martin v. Bloom 373 F. Supp. 797 (w. D., Pa.-1973),·a District Court decision 

involving a one man company, relied on by SUN is not binding on the Commission nor 

does it, in the writer's view, correctly state the law. For three District Court 

cases holding a directly contrary view see Marshall v. Kilgore 478 F. Supp. 4 

977 
-4-

(E. D. Tennessee, 1979); Marshall v. Bosack, supra, and Secretary of Interior. 

United States Department of Interior v. Shingara, 418 F. Supp. 693 (M-. D. Pa., 

1976). Also, compare the United States Court of Appeals decision in Marshall 

v. Kraynak 604 F.2d 231 (3rd Cir, 1979). 

SUN's motion to dismiss for lack of jurisdiction is DENIED. 

ALLEGED VIOLATIONS 

The facts pertaining to the alleged violations are enumerated in the hereafter numbered paragraphs. The facts are essentially uncontroverted and they are 

set forth after each of the contested regulations. 

WEST 79-278-M 

Citation 381350 alleges a violation of 30 C.F.R. 55.9-12. 

The cited standard provides: 

55.9-12 Mandatory. Cabs of mobile equipment 

shall be kept free of extraneous materials. 

1. The federal inspector observed fluid leaking from under the dash of SUN's 

loader (Tr 18). 

2. If the loader caught fire, the operator could be burned (Tr 18, 19). 

3. From its size the leak appeared a week or more old (Tr 19). 

Citation 381353 alleges a violation of 30 C.F.R. 55.4-22. The cited standard 

provides: 

55.4-22 Mandatory. Each mine shall have 

available or be provided with suitable firefighting equipment adequate for the size of 

the mine. 

4. The SUN office manager said there were no fire extinguishers on the 

property (Tr 20). 

5. SUN should have three fire extinguishers for its shop which featured 

welding, cutting and grinding (Tr 21, 22). 

6. Oil and grease were stored in the shop (Tr 22). 

978 
-5-

Citation 381354 alleges a violation of 30 C.F.R. 55.14-1. The cited standard 

provides: 

55.14-1 Mandatory. Gears; sprockets; chains, drive, head, 

tail, and takeup pulleys; flywheels; couplings; shafts; 

---sawb-lades-;-fan inlets,-crm:ts-1nri:lar exposed moving machine 

parts which may be contacted by persons, and which may 

cause injury to persons shall be guarded. 

7. Pinch points 3 feet above the ground on 10 conveyors were unguarded. 

(Tr 23, 24) 

8. A maintenance person could be cut or lose a limb if he was caught by the 

pinch points (Tr 23). 

9. The pinch point of the skirt board of each conveyor should be guarded 

(Tr 22-23). 

Citation 381355 alleges a violation of 30 C.F.R. 55.9-7. The cited s~andard 

provides: 

55.9-7 Mandatory. Unguarded conveyors with walkways 

shall be equipped with emergency stop devices or cords 

along their full length. 

10. In lieu of emergency stop devices, MSHA accepts a handrail guard (Tr· 25). 

11. Two workers were affected (Tr 26). 

12. The employer by observing the conveyor could have known there were no 

rails or emergency stop cords available (Tr 26). 

Citation 381356 alleges a violation of 30 C.F.R. 55.4-2. The standard 

provides: 

55.4-2 Mandatory. Signs warning against smoking and open 

flames shall be posted so they can be readily seen in areas 

or places where fire or explosion hazards exist. 

13. Diesel tanks or the oil storage areas had no signs on them (Tr 26, 27k 

14. The hazard of fires affected seven workers (Tr 27). 

979 
-6-

Citation 381357 alleges a violation of 30 C.F.R. 55.11-27. The cited 

standard provides: 

55.11-27 Mandatory. Scaffolds and working platforms shall 

be of substantial construction and provided with handrails 

and maintained in good condition. Floor boards shall be laid 

properly and the scaffolds and working platform shall not be 

overloaded. Working platforms shall be provided with 

toeboards when necessary. 

15. There was a generator plant on a 4 foot high flat bed trailer (Tr 28). 

16. The trailer had a 2 to 3 foot walkway without a railing (Tr 28, 29). 

17. The hazard of slipping with resulting fractures or bruises was present 

here (Tr 29r. 

Citation 381358 alleges a violation of 30 C. F. R. 55 .7--i~- ·The cited standard 

provides: 

55.7-2 Mandatory. ~quipme~t defects affecting safety 

shall be corrected before the equipment is used. 

18. A Chicago pneumatic air track drill had two missing bolts and nuts; this 

- could permit the hose to come off at -its connection (Tr 30). 

19. The hazard occurs from the whipping action caused by the 100 psi if the 

hose comes off (Tr 30). 

20. Two employees were affected (Tr 31). 

Citation 381359 alleges a violation of 30 C.F.R. 55.13-2~. The cited 

standard provides: 

55.13-21 Mandatory. Except where automatic shutoff valves 

are used, safety chains or other suitable locking devices 

shall be used at connections to machines of high-pressure 

hose lines of 3/4-inch inside diameter or larger, and between high-pressure hose lines of 3/4-inch inside diameter 

or larger, where a connection failure would create a 

hazard. 

21. A bull hose requires a safety chain (Tr 32). 

22. A coupling could come loose and the hose could strike a worker (Tr 32, 33). 

980 
-7-

Citation 38136.Q a;l.leges--a- violation of 55.9-22. The cited standard provides: 

55.9-22 Mandatory. Berms or guards shall be provided on 

the outer bank of elevated roadways. 

24. Part of the roadway leading from the plant to the pit and used by 

company trucks lacked a berm to support a vehicle (Tr 34, 35). 

25. The hazardous portion was one quarter of a mile from the pit along the 

15 to 20 foot wide road (Tr 34). 

26. If a vehicle went over the edge it would drop 60 to 70 feet (Tr 34). 

Citation 381383 alleges a violation of 55.6-20(i). The cited standard 

provides: 

55.6-20 Mandatory. Magazines shall be: 

(i) Posted with suitable danger signs so located that a 

bullet passing through the face of a sign will not strike 

the magazine. 

27. There were explosives (12 cases of dynamite) in the SUN ten foot square 

magazine (Tr 37, 38, 51). 

28. Hunters in this open range country could shoot at the warning signs which 

were attached to the magazine itself (Tr 37, 38). 

Citation 381384 alleges a violation of 55.6-20(j). The cited standard 

provides: 

55.6-20 Mandatory. Magazines shall be: 

(j) Used exclusively for storage of explosives or detonators 

and kept free of all extraneous materials. 

29. The magazine contained 3 drill steel, 3 hoses, and a drill machine 

(Tr 40). 

30. This equipment can cause sparks which could result in an explosion. 

Citation 381385 alleges a violation of 55.6-20(k). The cited standard 

provides: 

981 
-8-

55.6-20(k) Mandatory. Magazines shall be: 

(k) Kept clean and dry in the interior, and in good 

repair. 

31. There was a lot of rat litter on the floor of the magazine (Tr 41). 

32. The hazard arises from the natural bleeding of nitro from dynamite 

(Tr 42, 49). 

33. Sparks from shoes could create a fire hazard (Tr 42). 

WEST 79-334-M 

Citation 381349 alleges a violation of 30 C.F.R. 55.15-1. The cited standard 

reads: 

55.15-1 Mandatory. Adequate first-aid materials-, 

including stretchers and blankets, shall be provided 

at places convenient to all working areas. Water or 

neutralizing agents shall be available where corrosive 

chemicals or other harmful substances are stored, 

handled, or used. 

34. The SUN manager said there were no stretchers or blankets on the site 

(Tr 10-11). 

35. The nearest hospital was 40 to 50 miles away (Tr 11). 

36. Seven workers were affected (Tr 11). 

Citation 381351 alleges a violation of 55.11-1. The cited standard reads: 

55.11-1 Mandatory Safe means of access shall be 

provided and maintained to all working places. 

37. Workers had to climb the conveyors and the shaker itself to service it 

(Tr 13-16). 

38. The 15 foot high shaker had to be serviced daily (Tr 15). 

39. A fall from this height could be fatal (Tr 15). 

Citation 381352 alleges a violation of 55.11-1. The standard is the same as 

in preceding citation. 

40. The shaker at this location is about the same as Citation 381351 (Tr 17). 

41. Three workers were affected (Tr 17). 

982 
-9-

CONCLUSIONS OF LAW 

Respondent violated all of the citations in contest herein. In considering 

the statutory criteria for the assessment of civil penalties, I deem the proposed 

penalties to be appropriate. The uncontroverted factual basis supporting each 

citation is set forth after each citation number. 

WEST 79-278-M 

1. Citation 381350 (Facts 1, 2, 3) 

2. Citation 381353 (Facts 4, 5, 6) 

3. Citation 381354 (Facts 7, 8, 9) 

4. Citation 381355 (Facts 10, 11, 12) 

5. Citation 381356 (Facts 13, 14) 

6. Citation 381357 (Facts 15, 16, 17) 

7. Citation 381358 (Facts 18, 19, 20) 

8. Citation 381359 (Facts 21, 22, 23) 

9. Citation 381360 (Facts 24, 25, 26) 

10. Citation 381383 (Facts 27, 28) 

11. Citation 381384 (Facts 29, 30) 

12. Citation 381385 (Facts 31, 32, 33) 

WEST 79-334-M 

13. Citation 381349 (Facts 34, 35, 36) 

14. Citation 381351 (Facts ';>7, 38, 39) 

15. Citation 381352 (Facts 40,41) 

Based on the foregoing findings of fact and conclusions of law, I enter the 

following: 

ORDER 

All citations herein and the proposed civil penalties therefor are AFFIRMED. 

Judge 

983 
-10-

Distribution: 

Mildred L. Wheeler, Esq., Office of the Solicitor, United States Department 

of Labor, 450 Golden Gate Avenue, Box 36017, Room 11071 Federal Building, 

San Francisco, California 94102 

W. T. Elsing, Esq., 34 West Monroe, Suite 202, Phoenix, Arizona 85003 

984 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

-GFRC-£ OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone: (703) 756-6225 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RANGER FUEL CORPORATION, 

Respondent 

I 9 APR 1990 

Civil Penalty Proceeding 

Docket No. WEVA 80-121 

A.O. No. 46-04581-03020 

Beckley No. 2 Hine 

ORDER OF DISMISSAL 

On February 12, 1980, I issued a Denial of Motions for Summary 

Decision, Denial of Motion for Stay, and Prehearing Order •. I denied the 

parties' motion for summary decision on the ground that~there was a 

genuine dispute between the parties as to the type of inspection which 

was involved in this case. The question presented is the entitlement of 

a certain miner to "walkaround compensation" under Section 103(f) of the 

Federal Mine Safety and Health Act of 1977 (the Act). 

In a response to my Prehearing Order filed on April 3, 1980, 

Petitioner resolved this dispute stating, "The parties have agreed that 

the inspection involved was an accident investigation inspection, that 

it was not a 103(i) inspection and that it was not part of a regular 

quarterly inspection." 

Pet·itioner then argued that the inspection in this case is "factually 

and legally distinguishable" from the types of inspections involved in 

Secretary of Labor, Mine Safety and Health Administration (MSHA) v. The 

Helen Mining Company, Docket :~o. PITT 79-11-P, 1 FNSHRC Dees. 1796 (1979), 

appeal docketed, No. 79-2537 (D.C. Cir., Dec. 21, 1979) and KentlandElkhorn Coal Corporation v. Secretary of Labor, Hine Safetv and Health 

Administration (MSHA)., Docket No. PIKE 78-399, 1 FHSHRC Dees. 1833 (1979), 

appeal docketed, No. 79-2536 (D.C. Cir., Dec. 21, 1979) 

I do not agree. In Helen Mining, the Commission held that Section 

103(f) does not require operators to pay a miners' representative for the 

time he spends accompanying a mine inspector during a "spot" inspection 

required by Section 103(i) of the Act. In Kentland-Elkhorn, the Commission made a similar holding with respect to time spent accompanying a 

mine inspector during a special electrical inspection. In both cases, 

the Commission relied upon a statement made by Congressman Perkins during 

Congress' consideration of what was to become the Act. Congressman Perkins 

stated in part that, "it is the intent of the committee to require an 

opportunity to accompany the inspector at no loss of pay only for the 

regular inspections to be made by MSHA personnel at least four times a 

vear in the case of underground mines, and two times per year in the 

985 
case of surface mines. The inspections in Helen Mining and Kentland-Elkhorn 

did not· fall into this .. celie_g_ory, and accordingly the Commissibn denied 

walkaround compens-ation.. While an accident investigation inspection has 

apparently not been specifically ruled on by the Commission in a walkaround 

case, I believe that Congressman Perkins' statement, upon which the Commission relied, mandates denial of compensation in this situation as well. 

Finally, although Helen Mining and Kentland-Elkhorn have been appealed 

to the United States Court of Appeals for the District of Columaia Circuit, 

I do not believe this case should be held in abeyance while the court cases 

are pending. See: my-comments in the February 12 Order in this case. 

ORDER 

This case is DISMISSED without prejudice. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Jtidge 

James H. Swain, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Gary W. Callahan, Attorney, Ranger Fuel Corporation, Lebanon, VA 

24266 (Certified Mail) 

986 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

-OFFlCE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, 'VIRGINIA 22041 

2 9 APR 19SO 

• 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 80-124 

Petitioner Assessment Control 

v. No. 15-05120-03022 H 

PEABODY COAL COMPANY, Ken No. 4 North Mine 

Appearances: 

Before: 

Respondent 

DECISION 

Joseph M. Walsh, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Thomas R. Gallagher, Esq., St. Louis, Missouri, for 

Respondent; 

Joyce A. Hanula, Attorney, Washington, D.C.,_ for United Mine 

Workers of America. ];./ 

Administrative Law Judge Steffey 

In my decision issued October 29, 1979, in Peabody Coal Company v. 

Secretary of Labor (MSHA) and UMWA, Docket No. KENT 79-107-R, I stated that 

I would decide the civil penaltY. issues raised by Withdrawal Order 

No. 795972, which was under review in that docket, when and if MSHA thereafter filed a Petition for Assessment of Civil Penalty seeking assessment of 

a civil penalty for the violation of 30 C.F.R. § 75.200 alleged by Order 

No. 795972 as modified on June 1, 1979 (Exhs. 1 and 11). J;/ 

Counsel for MSHA filed a Petition for Assessment of Civil Penalty in 

Docket No. KENT 80-124 on January 31, 1980, and the existence of that Petition was called to my attention on February 15, 1980, by a letter to me from 

MSHA's counsel. On February 11, 1980, respondent's counsel filed an answer 

l/ The names of counsel listed above were those who represented the parties 

at the hearing held with respect to the application for review which had been 

filed in Docket No. KENT 79-107-R. 

2/ All references in this decision to transcript pages and exhibit Nos. are 

to the record in Docket No. KENT 79-107-R. It was stipulated at the hearing 

that respondent is subject to the Federal Mine Safety and Health Act of 1977 

(Tr. 6-7). 

987 
to the Petition in Dock~t No. KENT 80-124. The answer notes that evidence 

concerning the civil penalty issues raised by the Petition filed in Docket 

No. KENT 80-124-Was--recelved at the hearing held in Docket No. KENT 79-107-R. 

Issues 

The issues raised by the Petition filed in Docket No. KENT 80-124 are 

whether a violation of section 75.200 occurred and, if so, what civil penalty 

should be assessed, based on the six criteria set forth in section llO(i) of 

the Federal Mine Safety and Health Act of 1977. 

Occurrence of Violation 

Findings of Fact 

1. Order No. 795972 alleged that a violation of section 30 C.F.R. 

§ 75.202 had occurred, but the order was modified on June 15, 1979, to allege 

a violation of 30 C.F.R. § 75.200. The modification order (Exh. 11) states 

that the conditions described in Order No. 795972 constituted a violation of 

section 75.200 because there was inadequately supported roof in respondent's 

mine and because respondent had violated its roof-controT plan (Exh. A). 

2. Section 75.200 requires that the roof in each coal mine shall be 

adequately supported and also requires each operator to submit a suitable 

roof-control plan whose provisions will assure that a safe roof is maintained 

in each operator's coal mine. 

3. Respondent violated section 75.200 because inadequately supported 

roof, as hereinafter described, existed in the No. 1 Unit ID 004 and respondent's top managerial staff had declined to take action to provide supplemental support, as required by respondent's roof-control plan, even though 

the dangerous roo_f conditions had been reported to managerial personnel by 

several operators of roof-bolting machines prior to issuance of Order 

No. 795972 (Tr. 34; 88; 106; 149-150; 168; 428-429). 

The above findings support my conclusion that a violation of section 

75.200 occurred. The six criteria will be evaluated below for the purpose 

of assessing a penalty. 

Size of Respondent's Business 

The parties stipulated that respondent is a large operator (Tr. 7). I 

find, therefore, that the penalty should be in an upper range of magnitude 

insofar as it is determined under the criterion of the size of respondent's 

business. 

Effect of Penalties on Operator's Ability to Continue in Business 

It was also stipulated that payment of penalties will not cause 

respondent to discontinue in business (Tr. 7-9). 

988 
History of Previous Violations 

The computer--pri-nt·out -submitted by MSHA' s. counsel shows that respondent 

violated section 75.200 at its Ken No. 4 North Mine on two occasions in 

1977, six occasions in 1978, and one occasion in 1979 by February 15, 1979 

(Exh. 10). I would have liked to see the trend of violations over a longer 

period than was shown by Exhibit 10, but I consider that nine violations of 

section 75.200 in a period of a little over 2 years show an adverse history 

of previous violations. Consequently, the penalty hereinafter assessed will 

be increased by $150 under the criterion of history of previous violations. 

Respondent's Effort To Achieve Rapid Compliance 

It was the inspector's opinion that the hazardous roof conditions he 

found could have been abated by the installation of crossbars and timbers 

in all areas in which he found separations in the roof strata to exist 

(Tr~ 109). Respondent's management declined to install supplemental roof 

support in the No. 1 Unit because all of the top managerial personnel 

inspected the No. 1 Unit on the day after Order No. 795972 was issued and 

concluded that no imminent danger existed (Tr. 195). It was the position 

of mine management that if they had ordered the installatjon of supplemental 

roof support, they would have been conceding that hazardous conditions 

existed (Tr. 222; 255). Therefore, all miners were withdrawn from the area 

covered by the withdrawal order and all further effort to extract coal in 

that area was abandoned (Tr. 255-257). 

Since all miners were withdrawn from the area covered by Order 

No. 795972 and the miners were never required to go back into that area to 

work, respondent's failure to install supplemental support did not expose 

the miners to any danger after the order was written. Respondent's decision 

to contest the validity of Order No. 795972 caused a delay in production 

which made it uneconomical to return to that area after the results of contesting the order became known. Respondent claims that its failure to produce the coal in the area cited by the order caused respondent to lose 

22,280.5 tons of coal at a loss in income of $103,379 (Tr. 332; 341). 

The order required that respondent withdraw miners from the hazardous 

area described in the order. Such orders do not provide a time within which 

alleged violations must be corrected. An operator has the option of abandoning the area or of making it safe for reentry. If the operator abandons the 

dangerous area, as was done in this instance, the order is terminated on the 

basis of abandonment. 

In such circumstances, I find that the criterion of respondent's good 

faith effort to achieve rapid compliance is not applicable and that the 

penalty to be assessed should neither be increased nor decreased under the 

criterion of whether respondent demonstrated good faith effort to achieve 

rapid compliance. 

989 
Gravity oi the Violation 

The violation was··very serious as is shown by the findings of fact set 

forth below: 

1. When the inspector arrived in the No. 1 Unit of the Ken No. 4 North 

Mine on May 21, 1979, the day Order No. 795972 was issued, all of the men 

stopped at the dinner hole for a while except for Mr. Brock, the unit foreman, 

who made an inspection of the face area. The inspector and his companion, 

Mr. Inman, a roof bolter, began examining conditions in the unit by walking 

up the No. 4 entry toward the face. When they reached the second crosscut 

outby the face, the inspector noticed a broken place in the mine roof near 

the outby rib and water was coming through the roof in steady drops. The 

broken place extended the entire length of the crosscut between the Nos. 4 

and 5 entries. The crack was about an inch or less in width, but it extended 

along the bottom of a V-shaped ridge which projected downward from the roof 

for a distance of about 3 inches. The legs of the V-shaped ridge were about 

10 or 12 inches apart at the roof, or point of origin (Tr. 20-24; 56; 93). 

The inspector considered water dripping from the roof at the site of the 

cracked roof to be a further sign of a weakened roof because water displaces 

material comprising roof strata and creates voids in the· :too-f (Tr. 39). 

2. The inspector believed that the V-shaped broken place in the roof 

of the crosscut constituted an imminent danger which he defined as a condition which might cause injury or death before it could be corrected (Tr. 31; 

57; 107). The inspector thereafter orally issued an imminent-danger order 

under section 107(a) of the Federal Mine Safety and Health Act of 1977 and 

advised Mr. Brock, the unit foreman, that he would determine the extent of 

the area covered by his order as soon as he could complete his examination 

of the unit (Tr. 23-24; 108). 

3. The inspector then found another V-shaped crack in the roof of the 

second crosscut from the face between the Nos. 5 and 6 entries and still 

other cracks in the same crosscut between the Nos. 6 and 7 entries (Tr. 31; 

Exh. 2). The inspector could not divorce the cracks in the roof from the 

separations he had heard described by the miners before he began his underground examination (Tr. 32). Mr. Brock granted the inspector's request th~t 

the operator of the roof-bolting machine be permitted to drill test holes to 

determine whether separations still existed in the roof strata of the No. 1 

Unit (Tr. 24-25). The inspector had the operator of the roof-bolting machine 

to drill about 35 test holes. The inspector concluded that actual separations in the roof strata existed because, when the test holes were made, the 

drill on the roof-bolting machine would suddenly jump about 2 inches after 

the drill had penetrated the roof for a distance of from 36 to 38 inches 

(Tr. 25-26; 74; 90-91). Resin-grouted roof bolts were being used and the 

inspector believed that the roof bolts were pushing the resin into the 

separations which existed near the ends of the bolts. The passage of.the 

resin into the separations was seriously eroding the effectiveness of the 

resin bolts by preventing the resin from hardening along the full length of 

the bolts so as to pin the roof strata together and provide a secure beam 

(Tr. 73; 76; 85-86; 98; 105). 

990 
4. The inspector ultimately determined that the left side of the No. 1 

Unit was the place__wh_e_re tlle.-roof was unsafe and Order No. 795972 delineated 

the territory covered, namely, an area extending 175 feet outby the face in 

No. 7 entry, an area extending 130 feet outby the face in the No. 6 entry, 

an area extending 110 feet outby the face in the No. 5 entry, an area 

extending 80 feet outby the face in the No. 4 entry, and an area in the 

No. 3 entry at. the second open crosscut (Tr •. 141-142; Exh. 1). 

5. The inspector stated that Mr. Shemwell, the roof bolter who drilled 

the test holes, drilled the holes while exerting a steady pressure on the 

upthrust lever and the inspector said that he would have detected it if 

Mr. Shemwell had tried to manipulate the lever so as to fabricate the 

appearance of jumping. The inspector firmly believed that authentic jumping 

was occurring and that the jumping was caused by actual separations in the 

roof strata (Tr. 61-64). The inspector also stated that hitting extremely 

hard rocks with the drill stem would have slowed the drill stem and that the 

speed of the drill would have been restored to normal after the drill had 

passed through such rocks, but the inspector said that operators of roofbolting machines are familiar with var~ations in types of roof strata and 

would not interpret reactions of the machine when rocks are encountered to be 

separations in roof strata (Tr. 62-64; 68-69; 81). -

Negligence Associated with Violation 

A determination as to whether respondent was negligent in violating 

section 75.200 involves consideration of several findings which are set forth 

below: 

1. About a week before imminent-danger Order No. 795972 was issued, 

Mr. Inman, a roof bolter, told Mr. Brock, the unit foreman, about the jumping 

of the drill on the roof-bolting machine (Tr. 357), but Mr. Brock did not 

think the roof was bad enough to need extra support--that is, support in 

addition to the 42-inch resin bolts which were being installed at the time 

the order was issued (Tr. 34; 149-150). Mr. Brock took his hannner and pulled 

down some pieces of shale and decided that he would take no further precautions until such time as the roof appeared to become more adverse than it was 

when Mr. Inman warned him about it (Tr. 162). 

2. Mr. Charles Ford, the unit foreman in the No. 1 Unit on the day 

shift, stated that he had worked the day shift immediately preceding the 

issuance of the imminent~danger order (Tr. 167). Mr. Ford had also known 

about the jumps of 1 to 2 inches in the drill for about a week before the 

imminent-danger order was issued, but he had concluded that the drill was 

hitting soft places in the roof strata because the jumps occurred to within 

10 inches of the working face and he felt that there would have had to h~ve 

been a visible break in the roof in order for separations to have occurred 

that close to the face (Tr. 168). 

3. Order No. 795972 was orally issued at about 3:30 p.m., on the evening shift of May 21, 1979 (Tr. 59-60). Toward the end of Mr. Ford's day 

991 
shift of May 21, 1979, an operator of a roof-bolting machine, Mr. Charles 

Howard, called M~. Ford's attention to some bad roof at a breakthrough near 

the face of the No. -.s-- entry~ Mr. Ford thought that the roof was too hazardous for bolts to be installed until such time as crossbars could first be 

erected. Since it was then close to the end of Mr. Ford's day shift, 

Mr. Ford told Mr. Howard that he would report the bad top to the mine 

manager. Mr. Ford also made an entry in the preshift book stating "All left 

side of unit--bad top and water" (Tr. 164; 175). When Mr. Ford reported to 

work on the following day, May 22, 1979, he was surprised to hear that the 

imminent-danger order had been issued on the evening shift because the mine 

superintendent, Mr. Clyde Miller, had given instructions for the men to 

withdraw from the No. 1 Unit and work in some rooms to the left of the 

No. 1 Unit. Mr. Ford said that he had expected to move back into the No. 1 

Unit after the miners had"*** made it safe to go back in there" (Tr. 171). 

Mr. Miller's decision to withdraw from the No. 1 Unit had been made after 

Mr. Ford had reported the jumping of the roof-bolting machine and the 

existence of bad top in the No. 5 entry. Mr. Ford expected to go back into 

the No. 1 Unit after about three shifts because Mr. Ford estimated that 

two shifts could be required to move a pump into the No. 1 Unit and that one 

shift would be required to install supporting timbers. Mr. Ford would not 

have objected to reentering the No. 1 Unit to work after- the dangerous places 

had been timbered properly (Tr. 177). 

4. Mr. Alton Fulton, the mine manager, worked the day shift on May 21, 

1979, and he received the aforementioned call from Mr. Ford about 2:15 p.m. 

The call had been made by Mr. Ford to advise Mr. Fulton that crossbars were 

needed at two crosscuts. Mr. Fulton advised Mr. Ford that he would check 

into the matter and discuss the problem with Mr. Brock, the unit foreman on 

the evening shift, before Mr. Brock began working on his shift. Mr. Fulton 

made an inspection of the No. 1 Unit. He did not see any cracks and 

Mr. Fulton did not see any roof-bolting machines in operation although he had 

been told that jumps were occurring (Tr. 190-191). 

5. Mr. Fulton had gone home on May 21, 1979, before it was reported to 

him by telephone that the imminent-danger order had been issued. Mr. Fulton 

called Mr. Conrad Bowen, the assistant mine superintendent, and Mr. Ford and 

Mr. Bowen went to the mine and tried to convince the inspector, without 

making any examination of the conditions then existing in the No. 1 Unit, 

that the roof in the No. 1 Unit was not bad enough to warrant the issuance 

of an imminent-danger order, but the inspector adhered to his original position that the top constituted an imminent danger (Tr. 193-194). On May 22, 

1979, Mr. Fulton, Mr. Bowen, Mr. Miller, and Mr. French, the mine safety 

director, went into the No. 1 Unit and made an inspection (Tr. 195). All of 

them concluded that the roof was safe. Mr. Fulton said he would work under 

the roof if he were a union employee (Tr. 202). Mr. Miller said he would 

spend his vacation under the roof (Tr. 247). 

6. Mr. Miller tried to get the supervisor of the inspector who wrote 

the imminent-danger order to make a personal examination of the roof in the 

No. 1 Unit, but the supervisor declined to do so, explaining that he did not 

992 
want to become involved in the controversy (Tr. 252). Mr •. Miller said that 

MSHA could force_~he!!l __ ,to_d.Q_ almost anything, but in this instance he was in 

a position to make a test of MSHA's actions. Therefore, he decided that he 

would not take any steps to abate the order because he believed that any work 

he might do to abate the conditions alleged in the inspector's order would 

be interpreted as a concession by respondent that an imminent-danger actually 

existed (Tr. 222; 255). 

7. Mr. Guy McDowell, respondent's roof-control specialist, presented 

testimony and several exhibits which show that he has considerable expertise 

in designing resin-anchoring systems for both roof bolts and trusses (Tr. 

271-283). After the imminent-danger order had been issued, management 

requested Mr. McDowell to examine the roof in the No. 1 Unit. Mr. McDowell 

saw no signs of roof failure during his examination which was made by testing 

the roof with the sound and vibration method and by observation (Tr. 

284-285). Mr. McDowell also checkt.d 100 of the 2,800 roof bolts in the area 

covered by the order and found thac 50 bolts had resin on them at the bottom 

plate. Mr. McDowell concluded that the resin roof bolts were anchoring 

satisfactorily (Tr. 300-302). 

8. Mr. McDowell made no checks of the roof in the- No. 1 Unit by any 

method which was not also used by the operators of the roof-bolting machines 

and by the inspector, that is, he checked the roof by the sound and vibration 

method and by observation just as the inspector and operators of the roofbolting machines did. Mr. McDowell stated that if there really were separations in the roof at or near the extreme end of the 42-inch bolts, the -i:·e-s1n 

would go into the separations and not produce a proper bond for supporting 

the roof. He also said that one of the signs of roof failure would be cracks 

in the roof. Moreover, he agreed that if the V-shaped cracks described by 

the inspector really existed, such cracks would be a preliminary sign of 

roof failure even when resin bolts are used (Tr. 321; 324). 

9. Mr. Inman, the roof bolter who accompanied the inspector on May 21, 

1979, was afraid to work under the roof in the No. 1 Unit as it existed just 

prior to issuance of the imminent-danger order (Tr. 358). Mr. Inman said 

that resin will exude at the bottom or heads of resin bolts when no jumps 

or separations occur near the tops of the bolt holes, but the last night that 

Mr. Inman bolted before the imminent-danger order was is~ued, the drill stem 

was jumping in seven out of eight holes drilled and resin was coming out at 

the bottom of only one or two bolts out of eight (Tr. 376-378). Mr. Inman 

did not cause the jumps by deliberately manipulating the roof-bolting machine 

to produce that sort of manifestation and Mr. Inman did not believe that it 

would be possible for anyone to operate a roof-bolting machine so as to 

create an artificial appearance of jumping (Tr. 366-367). Mr. Inman did not 

think the jumps could have been caused by the drill stem's encountering 

alternate soft and hard places in the roof strata (Tr. 379-380). 

10. Mr. Shemwell, who operated the roof-bolting machine for drilling 

test holes for the inspector, agreed with Mr. Inman's and the inspector's 

description of the jumps occurring when holes were drilled. Mr. Shemwell 

993 
was still at the dinner hole on May 21, 1979, when he heard someone say that 

one of the working places had been designated as an imminent danger by the 

inspector (Tr. 388~389L --Mr: Shemwell believed that the roof in the No. 1 

Unit was definitely bad and he would have been afraid to have continued 

working in the unit without installation of support in addition to the resin 

bolts they were installing at· the time the imminent-danger order was issued 

(Tr. 390). Mr. Shemwell said that every operator of a roof-bolting machine 

has experienced hitting hard rocks and soft places in the roof strata and 

knows the difference between the slowing down of the drill and the speeding 

up of the drill at such times, as compared with the jumps which occur when 

the drill hits separations between the strata as was occurring in the No. 1 

Unit prior to the issuance of the imminent-danger order (Tr. 394-395). 

Mr. Shemwell agreed with Mr. Inman that it was very dangerous to work in the 

No. 1 Unit and he said he would have joined with any other miners who might 

have been willing to decline to work under the roof (Tr. 396). 

11. Management had used conventional bolts in the No. 1 Unit up to 

May 15, 1979, but management had changed to use of resin bolts because water 

had been encountered and tests showed that torque was being lost on the bolts 

after they had been installed (Tr. 266). Mr. Shemwell did not think the 

resin bolts were performing their intended function withrespect to water 

leaking through the roof because he could install resin bolts and thereafter 

find water dripping off the bottom of them when he came by the same bolts 

again during the next mining cycle. In Mr. Shemwell's opinion, if the resin 

bolts had been anchoring as was intended, water would not have been running 

off the bolt heads (Tr. 401). 

12. Mr. Charles W. Howard, among other things, operated the roofbolting machine and he had shortly before the imminent-danger order was 

issued declined to install resin bolts in the No. 5 entry because he considered the roof unsafe. He reported the unsafe roof to Mr. Ford, the unit 

foreman, and Mr. Ford reported the hazardous condition to the mine manager 

(Tr. 407). Mr~ Howard agreed with the other operators of roof-bolting 

machines that the drills cannot be made to jump by manipulating the upthrust 

lever to create such an impression (Tr. 418). 

13. Mr. Jerry D. Fulton has been a coal miner for about 11 years and 

has been an opera.tor of a roof-bolting machine for approximately 10 years 

(Tr. 424). He agreed with the other operators of roof-bolting machines that 

the roof was in fair to good condition in the Nos. 1, 2, and 3 entries, but 

he believed that the roof in the Nos. 4, 5, 6, and 7 entries was in poor 

condition, as cited in the inspector's order, because the drilling stem would 

jump in those entries. He had previously had to back up his roof-bolting 

machine in the No. 7 entry and install longer roof bolts when the conventional bolts then being used lost their torque (Tr. 425). Thereafter, 

management converted to using resin bolts (Tr. 426). Mr. Fulton tested the 

roof by using sound and vibration and observation and the roof appeared to be 

fair in the Nos. 1, 2, and 3 entries and substandard in the Nos. 4, 5, 6, 

and 7 entries. Mr. Fulton said that on previous occasions when the operators 

of the roof-bolting machines believed that they had encountered adverse 

994 
conditions whi"ch _warranted use of roof support in addition to roof bolts, 

management had provided-'tne-extra support, but for some reason, when the 

roof bolters encountered the jumps and the miners observed cracks in the 

roof in the No. 1 Unit shortly before the imminent-danger order was issued, 

management refused to provide the extra support the miners thought was -

needed (Tr. 428~429). 

The findings above support a conclusion that a high degree of negligence 

was associated with the violation of section 75.200 cited in Order 

No. 795972. If respondent's management had been given no preliminary reports 

concerning hazardous roof conditions in the No. 1 Unit prior to the writing 

of the imminent-danger order, I would have concluded that little, if any, 

negligence was associated with the violation because the facts show that 

respondent was using a 42-inch resin bolt which is superior to conventional 

bolts. Respondent had adopted the use of the 42-inch resin bolt for the purpose of overcoming problems associated with separations in the roof and with 

water_ coming through the roof. 

As the above findings show, however, respondent's management had made a 

superficial response to complaints from the roof bolters about the jumping 

of the drill stem and the miners' concern about separations in the roof 

strata. Mr. Jerry Ford, for example, testified that when separations had 

previously occurred, management had been responsive and had provided supplemental support in addition to roof bolts, but when the roof bolters reported 

the separations prior to issuance of the imminent-danger order, management 

declined to provide extra support. 

The inspector was put on the defensive at the hearing by respondent's 

counsel who wanted to know why the inspector did not use a borescope to 

enable him to determine for certain whether separations in the roof actually 

existed (Tr. 51-53). Respondent's management had available among its 

employees an expert in designing and experimenting with resin bolts and 

trusses. Respondent's management could have asked its roof-control expert to 

check the roof with a borescope when the roof bolters complained about the 

separations. If the jumps in the drill stems of the roof-bolting machines 

had been proven by the borescope to be mere soft strata in the roof, the 

miners would have been reassured and management would have had a basis for 

its belief that no separations in the roof strata were actually occurring as 

claimed by the miners. 

Management's inspection of the roof before and the day after issuance 

of the imminet-danger order consisted of nothing more than personal observations of the roof. Top management did not even watch the roof bolters 

install roof bolts. Their conclusions, therefore, that no separations 

existed were not based on a thorough investigation of the dangerous conditions about which their miners and some unit foremen were complaining. 

Management's efforts to convince the inspector that no imminent danger 

existed were first made without engaging in any kind of preliminary examination of the conditions which actually existed at the time the inspector's 

order was written. The inspector was able to justify the issuance of his 

995 
order on:- the basis of Jnformation gained by observing the drilling of 35 test 

holes. Those hQ_~es __ w~re_ accompanied by jumps in the drill stem and by no 

resin appearing around the bolt heads to provide evidence that the resin was 

hardening along the full length of the bolts rather than being lost into the 

cavities formed by the separated strata. Management's decision to contest 

the order was made without ever watching any roof-bolting machines in operation and without ever using the borescope which they apparently believed 

would have removed all doubt about whether the roof strata had actually 

separated. 

Management's failure to determine for certain whether separations were 

occurring left management with no solid reason for declining to have supplemental supports installed when the hazardous roof conditions were reported. 

Since management did not make an updated personal inspection of the conditions which existed at the time the imminent-danger order was issued, management had no basis for trying to persuade the inspector to retract his 

imminent-danger order. If the inspector had been less suspectible to 

pressure from mine officials, he might have been persuaded to vacate the 

order and the miners might have been killed when they continued to produce 

coal without having the protection which would have been provided by the 

erection of the crossbars which the inspector and the-m1ners believed were 

needed in the absence of any concrete proof that the roof bolters were mistaken about the separations which they believed existed in the roof strata. 

Assessment of Pe?alty 

In view of the fact that the violation was very serious, that a large 

operator is involved, and that there was a high degree of negligence, a 

penalty of $8,000 would have been assessed. As indicated above, however, 

the penalty will be increased by $150 to $8,150 under the criterion of 

respondent's ~istory of previous violations. 

WHEREFORE, it is ordered: 

Respondent, within 30 days from the date of this decision, shall pay a 

civil penalty of $8,150.00 for the violation of section 75.200 cited in 

Order No. 795972 dated May 21, 1979. 

Richard 

~C.~~ C. Steffey~ Administrative Law Judge 

(Phone: 703-756-6225) 

996 
Distribution: 

_,' - --

John H. O'D~~nell, Trial Attorney, Office of the Solciitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

William F. Taylor, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Thomas R. Gallagher, Esq., Attorney for Peabody Coal Company, P.O. 

Box 235, St. Louis, MO 63166 (Certified Mail) 

Joyce A. Hanula, Attorney for United Mine Workers of America, 

900 - 15th Street, NW., Washington, DC 20005 (Certified Mail) 

997 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Cl LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

FALLS CHURCH, VIRGINIA 22041 

2 9 APR 1980 

Petitioner 

Civil Penalty Proceeding 

Docket No. BARB 79-190-P 

A/O No. 40-02280-03003F 

B.S.K. No. 1 Surface Mine 

B.S.K. MINING COMPANY, INC., 

Respondent 

DECISION 

Appearances: Darryl A. Stewart, Esq., Office of the Soli~itor, U.S. Department of Labor, for Petitioner; - ----

Gary N. Fritts, Esq., Dayton, Tennessee, for.Respondent. 

Before: Judge Cook 

I. Procedural History 

On December 29, 1978, the Mine Safety and Health Administration (Petitioner) filed a petition for assessment of civil penalty in the abovecaptioned proceeding pursuant to section UO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 ~ ~· (1978) (1977 Mine Act). The 

petition alleges two violations of provisions of the Code of Federal Regulations as set forth in two notices of violation issued pursuant to section 

104(b) of the Federal Coal Mine Health and Safety Act of 1969, 30 u.s.c. 

§ 801 et ~· (1970) (1969 Coal Act). The Petitioner's certificate of 

service was filed on January 5, 1979, alleging that a copy of the petition 

had been mailed to B.S.K. Mining Company, Inc. (Respondent) on January 4, 

1979. 

On February 28, 1979, the Petitioner filed a motion for an order to 

show cause as to why the Respondent should not be deemed to have waived its 

right to a hearing and to contest the proposed penalty and why the proposed 

order of assessment should not be entered as the final order of the Federal 

Mine Safety and Health Review Commission (Commission). As grounds therefor 

the Petitioner stated that the Respondent had failed to file a timely answer 

to the petition. The requested order to show cause was issued on March 9, 

1979, requiring the Respondent to respond within 15 days. 

On March 15, 1979, the Respondent filed an answer to the motion for an 

order to show cause as well as a proposed answer to the petition. In addition, the Respondent filed an affidavit alleging that it had not received a 

998 
copy of the petition. A written communication was filed by the Respondent 

on April 30, 1979, stating that as of April 26, 1979, copies of the documents 

had been mailed to~counsef for the Petitioner. 

The Respondent's answer was received for filing by an order dated 

May 10, 1979. In addition, the order noted that the Petitioner had not 

filed a certified mail receipt establishing the Respondent's receipt of the 

petition. The Petitioner was ordered to serve a copy of the petition on 

the Respondent and to file proof of service in the form of a certified mail 

receipt, but only in the event that the Petitioner was unable to file a 

certified mail receipt. showing actual service of the December 29, 1978, 

petition. 

On May 14, 1979, the Petitioner filed a written communication stating 

that counsel for the Respondent had been provided with a copy of the petition and copies of all attachments thereto. 

A notice of hearing was issued on August 24, 1979, scheduling the case 

for hearing on the merits on November 27, 1979, in Chattanooga, Tennessee. 

The hearing was held as scheduled with representatives of ~oth parties 

present and participating. · --

A schedule for the submission 

following the presentation of the 

hearing brief on March 13, 1980. 

briefs. 

of posthearing briefs was agreed upon 

evidence. The Respondent filed its postThe Petitioner did not file any posthearing 

Additionally, Exhibit No. 0-5 was set aside during the hearing for the 

posthearing filing of a certified copy of the Respondent's 1978 Federal tax 

return. The Petitioner was accorded time in which to file any objections to 

the receipt of such exhibit into evidence. On April 11, 1980, the Respondent 

filed a copy of its 1978 Federal tax return. The Petitioner filed no objections thereto. Accordingly, the tax return, denominated Exhibit 0-5, was 

received in evidence by an order dated April 29, 1980. 

II. Violations Charged 

Notice No. 

7-6 (1 LRA) 

8-1 (1 LRA) 

Date 

November 2, 1977 

February 22, 1978 

III. Witnesses and Exhibits 

A. Witnesses 

30 C.F.R. Standard 

77.1700 

77.404(a) 

Both Petitioner and Respondent called Robert McCann, president of B.S.K. 

Mining Company, Ince, as a witness. Additionally, the Petitioner called MSHA 

inspectors Lee Aslinger and Lawrence Spurlock as witnesses. 

999 
B. Exhibits 

1. The Petitioner-in-Eroduced the following exhibits in evidence: 

M-1 is a computer printout compiled by the Office of Assessments 

listing the history of previous violations for which the Respondent had 

paid assessments beginning November 2, 1975, and ending November 2, 1977. 

M-2 is a copy of Notice No. 7-6 (1 LRA), November 2, 1977, 

30 C.F.R. § 77.1700. 

M-3 is a copy of the termination of M-2. 

M-4 is a copy of the inspector's statement pertaining to M-2. 

M-5 is a copy of Notice No. 8-1 (1 LRA), February 22, 1978, 

30 C.F.R. § 77 .1606(c). 

M-6 is a copy of the termination of M-5. 

M-7 is a copy of the inspector's statement pertainin~ to M-5. 

M-8 is a copy of a subsequent action form modifying M-5 to allege 

a violation of 30 C.F.R. § 77.404(a) instead of 30 C.F.R. § 77.1606(c). 

2. The Respondent introduced the following exhibits in evidence: 

0-1 is a copy of a document prepared by the Alabama Department--Of 

Revenue, Motor Vehicle and License Division. 

0-2 is a copy of a document styled "Employer's Quarterly Contribution Report, Tennessee Department of Employment Security." 

0-3 is a copy of safety rules in effect on October 30, 1977, to 

be observed by the Respondent's ·employees. 

0-4 is a copy of a document styled "BSK Mining Co., Inc., Statement 

of Financial Position." 

0-5 is a copy of the Respondent's 1978 Federal tax return. 

3. J-1 is a drawing prepared by Robert McCann during the hearing. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: 

(1) did a violation of the 1969 Coal Act occur, and (2) what amount sho?ld 

be assessed as a penalty if a violation is found to have occurred? In 

determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of 

1000 
previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of 

the penalty on the opera~of s ability to continue in business; (5) gravity 

of the violation; and (6) the operator's good faith in attempting rapid 

abatement of the violation. 

v. Opinion and Findings of Fact 

A. Stipulations 

On November 27, 1979, the parties filed the following stipulations: 

The parties, by and through their respective counsel, 

for the sole purpose of this proceeding, hereby agree to 

the following stipulations: 

I 

The Secretary of Labor (Secretary), in the civil penalty proceeding docketed above, filed a Petition for the 

Assessment of Civil Penalty pursuant to section llO(a)·of · 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

section 820(a), hereinafter referred to as the Act, and in 

accordance with the Interim Procedural Rules of the Federal 

Mine Safety and Health Review Commission published in 

Title 29, CFR 2700.24 against respondent for alleged violations of the Act and the regulations issued thereunder 

(30 CFR Part 77). 

II 

On March 7, 1979, respondent, B.S.K. Mining Co., Inc., 

filed its answer to the Secretary's Petition pursuant to 

Interim Procedural Rules of the Federal Mine Safety and 

Health Review Commission published in Title 29 CFR 2700.25. 

III 

Respondent, B.S.K. Mining Co., Inc., is, and at-all 

times hereinafter mentioned was, engaged in the operation of 

a mine known ~s the B.S.K. No. 1 Surface Mine located at 

Pikeville, Bledsoe County, Tennessee. 

IV 

Respondent, B.S.K. Mining .co., Inc., B.S.K. No. 1 

Surface Mine is, and at all times hereinafter mentioned was, 

subject to the provisions of both the Federal Coal Mine 

Health and Safety Act of 1969, 30 u.s.c. 801, ~~·and 

1001 
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

section 801, et ~· and the regulations issued under them 

(30 CFR Part 7!) •. 

v 

During the period November 2, 1977 through February 22, 

1978, respondent's B.S.K. No. 1 Surface Mine was inspected by 

Inspectors Lee R. Aslinger and Lawrence Spurlock, authorized 

representatives of the Secretary, pursuant to section 813(a) 

of the Federal Coal Mine Health and Safety Act, 30 u.s.c. 

813(a). 

B. Respondent's Liability for Violations of Mandatory Safety Standards 

On Sunday, October 30, 1977, 17-year-old Jody Lynch sustained a fatal 

injury at the B.S.K. No. 1 Surface Mine. Federal mine inspectors conducting 

the ensuing fatal accident investigation believed that the victim was the 

Respondent's employee (Tr. 35, 48). However, the evidence presented by the 

Respondent establishes that the victim was never its employee (Tr. 116-117). 

The initial question presented is whether the Respondent can be properly 

charged with violations of the mandatory safety standards in connection with 

Mr. Lynch's death. For the reasons set forth below, I answer this question 

in the affirmative. 

The relationship among three separate business entities, as set forth 

in the testimony of Mr. Robert Mccann, presid.ent of B. S .K. Mining Company, 

Inc., must be considered in resolving the liability issue. 

The Respondent held written, recorded leases to the mine property (Tr. 

154-155). Both the permit and Mine Safety and Health Administration mine 

identification number were issued in its name (Tr. 72-75). Howton Coal 

Company (Howton) mined coal at the subject mine under an oral agreement with 

the Respondent (Tr. 119, 124-125). Mr. Mccann described the t~rms of this 

oral agreement as "quite loose" (Tr. 165). Under the agreement as structured, it would not have been feasible to separate Howton out for a separate 

permit (Tr. 173). Howton was not at liberty to sell the coal it mined to 

the customer of its choice. Once mined, the coal became the Respondent's to 

sell (Tr. 164-165). In fact, "ownership" of the coal pa~_sed to the Respondent when it was loaded aboard the trucks in the pit area, trucks belonging 

to unidentified independent trucking companies engaged by the Respondent 

(-Tr. 166-167). Howton was paid whatever the Respondent received for the 

coal, less the cost of handling, tippling, and "the royalties that were paid 

for the certain tax." Thus, payments to Howton varied as the markets varied 

(Tr. 170). 

Howton supplied its own mining equipment (Tr. 124-125, 165). The 

Respondent had no control over the determination as to when Howton started 

or stopped work, over how much coal Howton produced per day, or over any of 

Howton's equipment operators. Additionally, the Respondent had no right to 

direct Howton's employees in the performance of their tasks (Tr. 140). 

1002 
According to Mr. Mccann, Howton was "in essence" more responsible for 

the overall operation of the pit than was the Respondent. He further testified that the Resppn~~At _as_sumed responsibility for marketing and office work 

(Tr. 167). However, it is significant to note that the Respondent also 

mined on the property (Tr. 116) and that the oral agreement did not designate 

a specific area in which Howton was to work (Tr. 163-164). The best available evidence indicates that coal mined by the two companies was stockpiled 

separately, but in the same general area (Tr. 159). 

According to Mr. Mccann, Samuel Lynch, Sr., the victim's father, was 

an outside contractor hired by Howton to perform maintenance work on Howton's 

equipment (Tr. 117, 125, 168-169). Mr. McCann further testified that to the 

best of his knowledge the victim worked for Samuel Lynch, Sr. (Tr. 117). In 

view of the circumstances surrounding the accident, as set forth below, I 

find that the victim was in his father's employ on October 30, 1977 (See 

also, Tr. 58-59). No contractual or employment relationship existed between 

the Mssrs. Lynch and the Respondent (Tr. 117-118). ];,/ 

The foregoing considerations compel the conclusion that Howton's status 

at the subject mine was that of an independent contractor engaged in the 

extraction of coal, and that Samuel Lynch, Sr. was an independent contractor 

performing maintenance work for Howton. The alleged violations arose from 

activities performed at the B.S.K. No. 1 Surface Mine in the course of the 

equipment maintenance activities of Samuel Lynch, Sr. 

In Republic Steel Corporation, 1 FMSHRC 5, 1979 OSHD par. 23,455 

(1979), the Commission held that a mine owner can be held responsible for 

violations of the 1969 ·Coal Act created by independent contractors performing 

work on mine property even though none of th~ mine owner's employees were 

exposed to the violative conditions and even though the mine owner could not 

have prevented the violations. Accordingly, it is found that the Respondent 

was properly charged with the alleged violations. 

!/ The possibility remains that Jody Lynch was a regular employee of Howton. 

The inspector's possessed information indicating that he had been a drill 

operator at the mine for approximately 2 months .(Tr. 15). The existence of 

an employer-employee relationship between Howton and Jody Lynch would resolve 

much of the conflict in the testimony as to his regular employment status. 

Inferences drawn from Inspector Spurlock's testimony would support such a 

conclusion since at one point the inspector indicated that Jody Lynch came 

to the mine to see his father and that his father asked whether he could help 

perform some maintenance while he was there (Tr. 58-59). The.tone of this 

conversation implies that Jody Lynch visited the mine for a purpose other 

than equipment maintenance but was persuaded to assist his father. However, 

it remains clear that at the time of death Jody Lynch was engaged in his 

father's equipment maintenance activities. 

1003 
c. Occurrence of Violations 

MSHA inspectors Lawrence Spurlock and Lee Aslinger participated in an 

investigation at the B.-s-.L No. 1 Surface Mine which began on November 1, 

1977 (Tr. 12, 46). The record reveals that Mr. Pete Patterson, an employee 

of Howton (Tr. 118), was the primary source of their information as relates 

to the facts surrounding the death of Mr; Jody Lynch. The three individuals 

present at the mine on the day of the fatality did not testify at the hearing. The findings of fact set forth in the following paragraphs are based 

largely upon both the out-of-court statements given to the inspectors during 

the investigation and the testimony of Mr.. Robert Mccann. 

1. Notice No. 7-6 (1 LRA), November 2, 1977, 30 C.F.R. § 77.1700 

Notice No. 7-6 (1 LRA), November 2, 1977, 30 C.F.R. § 77.1700 (Exh. 

M-2), alleges in pertinent part that the decedent "was assigned or being 

allowed to work in an area where hazardous conditions exist~d and he could 

not be seen, heard or communicated to in this area." The cited mandatory 

safety standard provides as follows: "No employee shall be assigned, or 

allowed, or be required to perform work alone in any area where hazardous 

conditions exist that would endanger his safety unless he can communicate 

with others, can be heard or can be seeno" 

Jody Lynch arrived at the mine at approximately 10 a.m., October 30, 

1977, and helped his father perform some maintenance (Tr. 48, 58-59). The 

evidence in the record reveals that Jody Lynch was allowed to work alone in 

the pit area of the B.S.K. No. 1 Surface Mine on the afternoon of October 30, 

1977 (Tr. 19, 24, 50). He left the maintenance area in his own pickup truck 

at approximately 12:45 p.m. in order to change the air filters and oil on 

one of Howton's DB bulldozers located in the pit (Tr. 20, 48-49, 117). Three 

other individuals were present on the mine site, all of whom were working in 

the maintenance area (Tr. 28, 48-49). 2/ Mr. Lynch's body was found in the 

pit area at approximately 1:50 p.m. pinned between the underside of the 

pickup truck and the ground (Tr. 22, 42, 49). · The vehicle was approximately 

one-half mile from the maintenance area and was parked on a 10-percent grade 

(Tr. 13, 24, 50-51). 

Mr. Patterson was of the opinion that Mr. Lynch had positioned the truck 

on the incline in such a manner so as to permit him to craw~ underneath it 

for_some purpose. Mr. Patterson believed that the truck apparently rolled 

back, pulled him out of an offset and pinned him between the .truck and the 

ground (Tr. 42, 50-52). 

'!:_/ The three individuals were identified as Pete Patterson, an employee of 

Howton; Burl Wise, a truck driver; and Samuel Lynch, Sr. (Tr. 28, 47-48, -

118). 

1004 
According to Inspector Spurlock, the three men in the maintenance area 

could not have heard Mr. Lynch due to the distance involved, the approximate 50-foot height of--the- highwall and the fact that "you had to go down 

a plateau and down a bluff into the pit area" (Tr. 50~51). The testimony of 

Inspector Aslinger reveals that mounds of dirt would have prevented the men 

in the maintenance area from seeing Mr. Lynch (Tr. 25). 

Based on the foregoing, it is found that Jody Lynch was allowed to work 

alone in the pit area of the B.S.K. No. 1 Surface Mine. 3/ It is further 

found that he could not communicate with others, could not be heard or could 

not be seen by the three other men at the mine while working alone in the pit 

area. 

The remaining question is whether the Petitioner has proved that the pit 

was an area where hazardous conditions existed within the meaning of the 

mandatory safety standard. For the reasons set forth below, I answer this 

question in the negative. 

The Administrative Procedure Act provides that "[a] sanction may not be 

imposed * * * except on consideration of the whole record or those parts 

thereof cited by a party and supported by and in accordagce with the reliable, probative, and substantial evidence." 5 U.S.C. § --556(d). The inspectors' testimony precludes a finding that a hazardous condition has been 

established by reliable and substantial evidence. Inspector Aslinger 

initially testified that hazardous conditions were involved throughout the 

pit area as far as incline of roadways and highwalls (Tr. 13), but contradicted himself on cross-examination by stating that the truck was the only 

hazardous condition (Tr. 37). During recross-examination, Inspector Spurlock 

attempted to show that all surface coal mines are inherently hazardous and 

that the B.S.K. No. 1 Surface Mine was as hazardous as any other surface 

mine, as set forth in the following testimony: 

'}_/ Mr. McCann testified that the fatality occurred on the approach to the 

topsoil storage area. He described the pit area as several hundred feet 

south of this location (Tr. 120-121, 125). However, Mr. McCann was not 

present at the mine on the day of the accident (Tr. 150) and the source 

of his information was not revealed. Inspector Aslinger, however, testified that Mr. Patterson and a former truck driver pointed aut where the 

victim was found (Tr. 16-17). Additionally, the inspector testified that 

he had observed indications that oil had been changed in the immediate area 

where Mr. Lynch's body had been found (Tr. 23). The inspectors' account as 

to where the accident occurred is deemed the most probative of the two 

accounts since the record reveals that their information was provided by 

a man who was at the mine on the day of the fatality and that corroborating 

evidence was found in the pit area. 

1005 
Q. There wasn't any type of hazardous conditions which 

had been existing like coal, dust, or gas, or anything like 

that? 

A. Mr. Fritts, I don't know what you are referring to, 

but in a coal mine -- In a coal mine, anything can happen. 

You can slip off a piece of equipment getting down. We have 

accidents happen like that; or such as a truck run over. 

Coming into the pit area, there was a steeping incline coming down into the bottom of the pit off the wall. He could 

have lost control of his vehicle there. He could have. 

There are many_ ways you can get injured in a coal mine. 

(Tr. 59). However, when pressed, he too took the position that Jody Lynch's 

pickup truck was the sole hazardous condition existing on October 30, 1977 

(Tr. 59-60). 

In summary, Inspector Aslinger appears to refer to specific hazards 

existing in the pit area as relate to roadways and highwalls at one point 

in his testimony, yet both inspectors affirmatively state that the pickup 

truck was the sole hazard. As set forth in Part V(C)(2), infra, the Petitioner has failed to prove the existence of the all~ged--def.ect. as relates to 

the truck at the time of the accident. Therefore, it cannot be found that 

either the truck or the pit area presented a hazardous condition within the 

meaning of 30 C.F.R. § 77.1700 when the accident occurred. 

Additionally, I cannot accept the proposition that the pit was an area 

where hazardous conditions existed within the meaning of the regulation __ _ 

merely because it was a pit area. All surface mines present certain common 

dangers, yet the wording of the regulation is such that its mandate applies 

only when conditions outside the norm are present. The regulation is 

designed to assure that an individual working in an area where hazardous 

conditions exist that would endanger his safety is within sight or hailing 

distance of others who can render or summon assistance when necessary. 

In view of the foregoing, I find that the Petitioner has failed to prove 

the violation alleged in Notice No. 7-6 (1 LRA), November 2, 1977, 30 C.F.R. 

§ 77 .1700. 

2. Notice No. 8-1 (1 LRA), February 22, 1978, 30 c·;F.R. § 77.404(a) 

The subject notice states as follows: 

The victim's vehicle, a green Chevrolet truck, license 

number Ala. PP0228, was being used as a haulage pit truck 

for transportation of lubrication and supplies on the 001 

working section,·whereby the transmission linkage, an 

equipment defect affecting safety~ had not been corrected 

before the truck was.put into use. 

1006 
.(Exh. M-5, Tr. 77). !:_! 

Mandatory safety-standard 30 c.F.R. § 77.404(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 collective testimony of Inspectors Aslinger and Spurlock asserts 

that Mr. Patterson told them that he had seen Jody Lynch crawl under the 

pickup truck on numerous prior occasions to release or unhang the transmission levers (Tr. 15, 49). According to Inspector Spurlock, Mr. Patterson 

indicated that the problem was associated with having changed from a column 

shift to a floor shift (tr. 107). The inspector testified that Mr. Patterson 

indicated that the transmission levers on the shift column would "hang up," 

and that Jody Lynch would have to go underneath the truck to release them 

before he could move the vehic.le (Tr. 108-109). The inspector further testified that Mr. Patterson stated that on the day of the accident Jody Lynch had 

apparently experienced a problem with the transmission levers, had crawled 

under the truck to disengage them, and that when he disengaged the levers the 

truck rolled over him and smothered him (Tr. 51-52, 110). 

The truck was removed from the mine site subsequent to· the accident but 

prior to the investigation (Tr. 37-38, 52, 55, 81). 5/ The inspectors went 

to a nearby home where the truck was allegedly parked (Tr. 37-38, 55, 104). 

Inspector Aslinger did not examine the truck (Tr. 37-38), and the evidence 

reveals that Inspector Spurlock performed only a cursory examination consisting merely of shifting gears with t.he .engine .off (Tr. 55). He testified that 

~he gears "worked pretty s.tiff, but that still does not mean it was not 

4/ The truck mentioned in the notice is a 1964 green Chevrolet pickup truck, 

Alabama license number PP0228 .(Tr. 20, 77). The Respondent read the "O" in 

the license number set forth in the notice as a "V" and obtained a document 

from the Alabama Department of Revenue, Motor Vehicle and License Division, 

showing that Alabama license number PPV228 identified a blue 1967 Ford pickup 

owned by one w. s. Cooper (Exh. 0-1). Therefore, it cannot be found that 

Exhibits M-5 and 0-1 refer to the same vehicle. 

5/ It appears that disturbance of the accident site was ~ principal reason 

for the Petitioner's inability to produce reliable, probative and substantial 

evidence establishing the occurrence of the alleged violations. The Respondent should have been charged with a violation of section 103(e) of the 

1969 Coal Act which provides, in part, that "[i]n the event of any accident 

occurring in a coal mine, the operator shall notify the Secretary [of 

Interior] thereof and shall take appropriate measures to prevent the destruction of any evidence which would assist in invest-igating the cause or causes 

thereof." No information has been·presented to the undersigned indicating 

whether such charge was brought and, if. so, disposed of prior to the Respondent's request for an evidentiary hearing. 

1007 
jammed" (Tr. 55, 106), and that he found no distinguishing, unsafe conditions 

(Tr. 104). 2._/ 

I am unable to conclude that the Petitioner has proved the occurrence of 

the alleged violation by reliable, probative and substantial evidence. Three 

factors weigh heavily in this determination. First, the theory propounded by 

the hearsay declarants as to how the accident occurred was not corroborated 

by a thorough MSHA examination of the truck designed to determine on the 

basis of reliable, probative evidence whether the alleged transmission 

linkage problem existed and whether it was responsible for Mr. Lynch's death. 

Second, it cannot be stated with certainty that the truck examined by 

Inspector Spurlock was the truck involved in the fatality. There is no indication that individuals capable of positively identifying the truck accompanied the inspectors to the nearby home, and both inspectors indicated that 

the dwelling's residents were not at home when the examination was performed 

(Tr. 38,55). The inspectors never spoke to the decedent's father, an individua-1 who certainly possessed the necessary information (Tr. 38, 105). 

Furthermore, the testimony of Inspector Aslinger heightens the level of 

uncertainty. He testified as follows during cross-examination: 

Q. Now, this truck, did you examine it? 

A. No, sir. 

Q. You didn't examine it? 

A •. The truck had been removed from the mine property 

immediately after the fatality, and we had learned where it 

was parked, and we went to see the truck at a neighboring 

home nearby. 

Q. Was the truck there? 

A. I think it was. 

Q. Okay. Did you examine the truck there? 

A. No, I did not myself. 

Q. Was anyone with you that did examine the truck? 

A. The investigating team did. 

(Tr. 37-38) (emphasis added). 

2._/ It should also be noted that the inspector appeared to contradict himself 

while describing the test performed. At one point, he testified that he 

tried to engage the transmission levers and that "[t]hey weren't rough." 

(Tr. 55). However, he subsequently indicated that the gears felt rough when 

he shifted·them (Tr. 106). 

1008 
The fo'I'egoing passage confirms that an examination was performed on a 

truck, but the emphasized portion betrays some uncertainty on the inspector's 

part as to whether-the-truck-actually examined was the one involved in the 

fatality. 

The testimony of Inspector Spurlock indirectly confirms Inspector 

Aslinger's testimony on this point. It.is significant to note that Inspector 

Spurlock did not affirmatively state that the victim's family actually 

resided in the dwelling. Instead, he testified that he "went to the place 

where they.was supposed to live" (Tr. 55) (emphasis added). 

Third, the inspector opined that the transmission locked when the victim 

stopped and turned off the engine (Tr. 112)• He further testified that "when 

one of the levers lock up, they split gears, they lock up the whole works," 

and that the vehicle cannot be moved (Tr. 113). However, the testimony indicates that the victim carefully selected the site on which the truck was 

parked, a site where the terrain permitted him sufficient space to crawl 

under the truck (Tr. 42, 111-112). This testimony cannot be characterized 

as reliable, probative and substantial evidence establishing the violation as 

charged since it is inconsistent. On the one hand it points to careful 

selection of a site to correct an existing problem or pe~f orm· some other 

undisclosed maintenance or inspection, and on the other hand indicates that 

the levers malfunctioned the instant the engine stopped. The ·two accounts 

contain an unresolvable inconsistency. 

It could be argued that the levers malfunctioned every time the vehicle's 

engine was turned off. This theory could resolve the inconsistency since the 

victim would have foreseen the necessity of parking in a location providing 

sufficient space to permit access to the underside of the truck. However, 

the record contains no evidence of this. The hearsay declarant's statement points to "numerous occasions," but the record contains no indication 

as to how the hearsay declarant defined the term. (See,~·_&•, Tr. 17-109.) 

In summary, there is no reliable, probative, and substantial evidence 

as to the actual condition of Jody Lynch's truck on the day of the accident. 

Accordingly, I conclude that the Petitioner has failed to prove the violation alleged in Notice No. 8-1 (1 LRA), February 22., 1978, 30 C.F.R • 

. § 77 .404(a). 

VI. Conclusions of Law 

1. B.S.K. Mining Company, Inc •. , and its No. 1 Surface Mine have been 

subject to the provisions of the 1969 Coal Act and the 1977 Mine Act at 

all times relevant to this proceeding. 

2. Under the Acts, the Administrative Law Judge has jurisdiction over 

the subject matter of, and the parties to, this proceeding. 

3. · MSHA inspectors Lee.Aslinger and Lawrence~ Spurlock were- duly 

·authorized representatives of the Secretary of Interior between November 1, 

1977» and February 22; 1978. 

1009 
4. The Petitioner has failed to prove the violations charged in Notice 

No. 7-6 (1 LRA), November 2, 1977, 30 C.F.R. § 77.1700, and Notice No. 8-1 

(1 LRA), February 22, 1978, 30 C.F.R. § 77.404(a). 

5. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated hereino 

VII. Proposed Findings of Fact and Conclusions of Law 

The Respondent submitted a posthearing brief. Such brief, insofar as it 

can be considered to have contained proposed findings and conclusions, has 

been considered fully~ and except to the extent that such findings and conclusions have been expressly or impliedly affirmed in this decision, they 

are rejected on the ground that they are, in whole or in part, contrary to 

the facts and law or because they are immaterial to the decision in this 

case. 

ORDER 

IT IS ORDERED that Notice No. 7-6 (1 LRA), November 2, 1977, 30 C.F.R. 

§ 77.1700 and Notice No. 8-1 (1 LRA), February 22, 1978, 30 C.F.R. 

§ 77.404(a) be, and hereby are, VACATED. 

IT IS FURTHER ORDERED that the petition for assessment of civil penalty 

be, and hereby is, DISMISSED. 

Law Judge 

Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of 

Labor,. Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Gary N. Fritts, Esq., P.O. Box 367, 117 North Market Street, Dayton, 

TN 37321 (Certified Mail) 

. Administrator for Coal Mine Safety and. Health, u. s. Department of Labor 

Standard Distribution 

1010 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

-S-KYLINE TOWERS NO. 2, lOTH FLOOR 

52~ LEESBURG PIKE 

HELVETIA COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

HELVETIA COAL COMPANY, 

FALLS ,w.t~ ~~~~~1A 22041 

t \\ l\~R \9SO 

Application for Review 

Applicant 

Docket No. PENN 79-165-R 

Lucerne No. 6 Mine 

Respondent 

Civil Penalty Proceeding 

Docket No. PENN 80-68 

Petitioner A.C. Control No. 36-00917-03036 

Lucerne No. 6 Mine 

Respondent 

DECISION 

Appearances: Jay w. Freedman, Esq., Freedman, Levy, Kroll, & Simonds, 

Washington, D.C., for Helvetia Coal Company; 

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for Secretary of Labor. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a consolidated proceeding involving an application for review and 

a civil penalty proceeding. The application for review was filed by Helvetia 

Coal Company (hereinafter "Helvetia") under section 107(e) of the Federal Mine 

1011 
Safety and Health Act of 1977, 30 u.s.c. § 817(e), to modify an order of withdrawal due to immiri.ent .dang-er--issued by a federal mine inspector employed by 

the Mine Safety and Health Administration (hereinafter "MSHA") pursuant to 

section 107(a) of the Act. The civil penalty proceeding was filed by MSHA 

under section llO(a) of the Act, 30 u.s.c. § 820(a), to assess a penalty 

against Helvetia for violation of a mandatory safety standard. The 

parties filed prehearing statements and the case was heard in Pittsburgh, 

Pennsylvania, on March 11 and 12, 1980. The following witnesses testified 

on behalf of MSHA: Roy c. Craver, inspector; George E. Tersine, inspector; 

and Robert Nelson, inspection supervisor. The following witnesses testified 

on behalf of Helvetia: Robert Anderson, manager of mines; Ronald Evanick, - -~· 

section foreman; Jerome Strong, mine foreman; and Edward Onuscheck, assistant 

to the president and safety director. 

This matter involves the discovery of methane concentrations in excess 

of five percent at the Lucerne No. 6 Mine in September 1979. Thereafter, MSHA 

issued the following: (1) an order of withdrawal of the entire mine due to 

imminent danger; and (2) a citation for failure to immediately notify MSHA 

of the occurrence of an accident. Helvetia contends as follows: (1) 

although an imminent danger existed, the order of withdrawal should be modified to close only one section of the mine rather than the entire mine; and 

(2) Helvetia was not required to report an accident because there was no 

unplanned inundation of a mine by a gas. Helvetia requested a modification 

of the withdrawal order and a vacation of the citation. MSHA requested that 

the withdrawal order be affirmed as issued and that a civil penalty be assessed 

for the violation of the Act. 

1012 
ISSUES 

The first general issue is whether the order of withdrawal due to imminent danger was properly issued. Tite specific issue is whether the order 

of withdrawal should be modified to cover only the one section rather than 

the entire mine. 

The second general issue is whether Helvetia violated the Act or regulations as charged by MSHA and, if so, the amount of the civil penalty which 

should be assessed. 

APPLICABLE LAW 

Section 107(a) of the Act, 30 u.s.c. § 817(a), provides as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger 

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 f~om, and to be prohibited from 

entering, such area until an authorized representative of 

the Secretary determines that such imminent danger and the 

conditions or practices which caused such imminent danger 

no longer exist. The issuance of an order under this subsection shall not preclude the issuance of a citation under 

section 104 or the proposing of a penalty under section 110. 

Section 3(j) of the Act, 30 u.s.c. § 802(j), states: "'imminent danger' 

means 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." 

1013 
,jU c.-F.R. § 50.10 provides in pertinent part as follows: "If an accident occurs, an operator shall immediately contact the MSHA district or 

subdistrict office having jurisdiction over its mine * * *•" 

30 C.F.R. § 50.2 defines an "accident," inter alia, to be "an unplanned 

inundation of a mine by a liquid or gas * * *•" 

Section llO(i) of the Act, 30 u.s.c. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, the appropriateness of such penalty to the siz~ of 

the business of the operator charged, whether the-operator 

was negligent, the effect on the operator's ability to-continue in business, the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of a 

violation. 

STIPULATIONS 

1. Lucerne No. 6 Mine is subject to the jurisdiction of 

the Mine Safety and Health Act of 1977. 

2. Lucerne No. 6 Mine is a gassy mine liberating in 

excess of one million cubic feet of methane within a 24-hour 

period. 

3. Lucerne No. 6 Mine is a large mine employing approximately 460 miners working on 13 working sections rotating on a 

three-shift basis. 

4. Lucerne No. 6 Mine is a part of Helvetia Coal Company, 

which is a subisidary of R & P Coal Company. 

5. The inspectors who represent the Secretary in this 

case were at all pertinent times to this proceeding duly authorized representatives of the Secretary of Labor. 

6. The operator has a previous history of 448 paid violations issued against Lucerne No. 6 Mine within the previous 

24-month period to September 7, 1979. There is no previous 

history of violation of section 50.10. 

1014 
7. The operator does not contest the validity of the 

issuance of the imminent danger order but is primarily concerned with the extent of the order. 

8. Any penalty assessed in this proceeding would not 

affect the operator's ability to remain in business. 

9. With regard to the alleged violation of 

30 C.F.R. § 50.10, the violation was abated by the operator in good faith. 

SUMMARY OF THE EVIDENCE 

Undisputed Evidence 

The Lucerne No. 6 Mine was classified as a gassy mine with a prior 

history of excessive methane concentrations and methane ignitions. The 

section involved in this incident, 1 Butt 4 Right, had been mined by 

retreat mining. At approximately 12:30 p.m. on September 5, 1979, the dayshift foreman of this section was making his weekly inspection of the 

return airway. He called the mine superintendent, William Tanner, and 

reported that he had found methane in the return airway in concentrations 

of five percent or greater. No other section used this return airway. 

When the 4:01 shift came on duty that day, this information was reported 

to section foreman Ronald Evanick. Thereafter, Mr. Evanick took his crew 

of six or seven men up to the working face where he foun~ only .1 to .2 

percent methane. The crew went to work and Mr. Evanick went to the air 

return to check for methane. He reported that the methane in the air 

return "pegged my spotter." The reading was taken 12 inches from the roof 

and indicated that there was more than 9.9 percent methane in that area. 

Thereupon, Mr. Evanick returned to his section and consulted with other memhers of mine management. At approximately 6:30 to 7 p.m. on September 5, 

1979, management decided to cut off all power to the affected section and 

1015 
to stop all mining. Thereafter, the members of the crew remained in the 

area to correct pr...Qpl~.ms. with- the ventilation system. The working face in 

this section was approximately 500 feet from the place where the high concentration of methane was found. 

On the morning of September 6, 1979, a regular MSHA inspector of this 

mine, George E. Tersine, was on the mine property to conduct an inspection. 

No one from management reported to him that high concentrations of methane 

had been found on the previous day. He went about his regular inspection 

in another section of the mine. At about the same time, Robert Anderson, 

manager of mines, was informed that methane in excess of five percent had 

been found in the return airway on the prior day. Manager Anderson, Superintendent Tanner, and Mine Foreman Jerome Strong went into the section to 

investigate. They found methane in excess of five percent. They decided to 

rearrange the stoppings and tighten the canvas and checks in order to bleed 

off the excessive methane. They reaffirmed the prior decision to de-energize 

the section and discontinue mining operations. 

While Inspector Tersine was conducting his regular inspection of the 

Lucerne No. 6 Mine, a miner approached him at the dinner hole and advised 

him that Helvetia had voluntarily closed one section of the-mine because 

of methane problems. At approximately 1:30 p.m., Inspector Tersine 

encountered Manager Anderson and Superintendent Tanner. When the inspector 

inquired about the methane problem, he was advised by Superintendent Tanner 

that approximately 1.8 percent methane had been found in the return airway 

of the affected section and that this section was closed and the power was 

cut off. Inspector Tersine asked why this had not been reported to MSHA and 

1016 
Helvetia stated that it had no duty to report this incident. Mr. Anderson 

conceded that the operator-did not have a copy of Part 50 of the applicable 

regulations in its mine office. After this exchange, Inspector Tersine 

returned to the MSHA office. He did not go into the affected section at 

any time on September 6, 1979. 

Upon returning to the MSHA office, Inspector Tersine mentioned the 

methane problem at this mine to Robert Nelson, his supervisor. Supervisor 

Nelson then ordered Inspector McClure to investigate this matter during the 

4:01 p.m. shift on September 6. According to Helvetia's witnesses, Inspector McClure went into the affected section and took methane readings. It 

was alleged that he obtained methane readings in exc~ss of five percent, but 

left the mine without issuing any orders or citations. In any event, 

Inspector McClure did not testify in this case. 

At approxim~t~ly 11:30 p.m. on September 6, 1979, Supervising Inspector 

Nelson entered the mine to conduct his own inspection. No one from Helvetia 

advised him that methane in excess of five percent had been found. In fact, 

the company advised him that it had obtained low readings in this area. 

Supervisor Nelson took several readings in various places but did not detect 

methane in excess of 1.3 percent. Based upon the information that was available to him at the time, Supervisor Nelson concluded that he did not have 

enough evidence at that time to issue a withdrawal order. While he was conducting his inspection, Supervisor Nelson noted that the power to the 

section was cut off and no mining was being performed. Miners w~re 

hand-carrying blocks for stoppings. 

1017 
On th~ morning of September 7, 1979, Supervisor Nelson assigned· Inspector 

Roy C. Craver and-regular-Inspector George E. Tersine to the mine in question 

to conduct a further inspection. At approximately 8:15 a.m., Inspectors 

Craver and Tersine went underground. Inspector Craver admitted that he may 

have said that he would issue a closure order for the entire mine if he 

found methane in excess of 1.5 percent. After arriving in the affected section, four check points were established for methane sampling. At each check 

point, the inspectors took methane readings on their methanometers and 

obtained bottle samples which were later analyzed in the MSHA laboratory. 

At check point No. 1, the methanometers indicated 1.2 to 1.3 percent methane. 

A bottle sample was subsequently analyzed as showing 1.13 percent methane. 

The inspectors then advanced inby and established check point No. 2. The 

methanometers indicated 1.1 to 1.3 percent methane. A bottle sample was 

subsequently analyzed as showing 1.2 percent methane. The inspectors again 

advanced inby and established check point No. 3. The methanometers indicated 

methane at 2.8 percent and a bottle sample was subsequently analyzed at 

2.83 percent. At this point, Inspector Craver advised management that they 

were over 1.5 percent methane and were subject to a closure order. He did 

not write any closure order at this time but rather advanced inby to 

establish check point No. 4 to determine the extent and concentration of 

the methane. At check point No. 4, the methanometer indicated 4.0 percent 

methane and a bottle sample was subsequently analyzed at 6.25 percent 

methane. Although no additional check points were established, Inspector 

Craver testified that he took additional methane readings which established 

methane concentrations in the range of 5 to 10 percent. Inspector Craver 

believed that the methane was coming from a caved-in section of the gob area. 

1018 
Based upon finding the foregoing methane concentrations, Inspector Craver 

determined that ,a-section-f07( a) order should be issued closing the entire 

mine due to imminent danger. He thereupon left the section and returned to 

the surface. He called Supervisor Nelson and informed him of the methane 

readings and his decision to issue the order of withdrawal. At 1:15 p.m. 

on September 7, 1979, the order of withdrawal was issued closing the entire 

mine. Thereupon, 161 miners were removed. On September 9, 1979, Inspector 

Tersine terminated the withdrawal order during the day shift. The termination was based upon the fact that methane had been reduced below one 

percent in the entire affected area. 

On September 12, 1979, Inspector Tersine issued a citation under section 

104(a) for violation of 30 C.F.R. § 50.10 for Helvetia's failure to notify 

MSHA of an accident. This citation was based upon the fact that Helvetia 

never reported an accident to MSHA and did not mention the methane problem 

until after interrogation by Inspector Tersine. 

It is undisputed that methane concentrations between five and 15 percent are explosive. It is agreed that no one from MSHA had any disagreement with the methods used by Helvetia to abate this condition. 

Other Evidence 

Roy c. Craver has been an MSHA inspector for nine years. He testified 

that based upon his experience and findings on September 7, 1979, the 

methane problem in the affected section presented an imminent danger to 

miners working in the mine and required the closure of the entire mine. 

His reasons were as follows: (1) there was no way to determine the extent 

1019 
of the area which would be affected in the event of an explosion and the 

threat of an explo-sion affected the entire mine; (2) it was impossible to 

determine the amount of methane present in the mine; (3) continued mining 

in other sections would have liberated more methane; (4) if the sand rock 

roof collapsed, it could cause a spark which could ignite the methane; 

(5) all three elements necessary for an explosion were present: oxygen, 

fuel, and a possible ignition source; and (6) the mine had a history of 

an ignition during the preceding month and five ignitions in the previous 

8 years. Inspector Craver testified that he was primarily concerned about 

an ignition and the safety of miners. He stated that he would not necessarily close an entire mine if 1.5 percent methane w_ere- found in an advancing section. However, in this case he found methane in excess of five 

percent in a retreat section. While he did not know precisely where the 

other working sections were located in the mine, he testified that if the 

No. 1 fan had a problem, eight working sections would be affected. At the 

time he issued the order, no one from Helvetia complained to him that the 

order was too broad or that it should be limited to the one section. 

George E. Tersine has been an MSHA inspector for 4 years. He was a 

regular inspector of this mine. He testified that Superintendent Tanner 

advised him that there was a feeder resulting from a fall in the affected 

area. Since there was no report of a methane accumulation in the prior 

weekly report, he assumed that this was a sudden inundation of methane~ 

Although Helvetia never advised h~m of the existence of the methane problem, he did not believe that it was trying to hide the problem from him~ 

1020 
Robert Nelson has been an inspection supervisor since 1971. He has 

been a mine inspee~or--sirrce-i962. He reported that on March 11, 1977, 

Helvetia experienced a cave-in at this mine resulting in an inundation of 

methane. At that time, Helvetia innnediately reported this accident to 

MESA (MSHA's predecessor). In September 1979, all of the top management of 

the mine were new to this mine within the previous year. Supervisor Nelson 

did not think that mine management had experience in liberating large quantities of methane. He stated that if the methane exploded, it would endanger 

a large area of the mine. He further testified that the order of withdrawal 

for the entire mine was proper under the circtnnstances. He stated that 

while the methane was being diluted and removed from th~mine it could 

cause an explosion at a fan or bathhouse. At the time the order of withdrawal was written, Helvetia had no plan to remove the methane and had not 

decided where to build stoppings. It was necessary to issue an order 

of withdrawal for the entire mine because of the necessity to move large 

quantities of methane. Control of a large area of the mine was necessary 

in order to liberate this amount of methane. 

Supervisor Nelson did not recall any conversation with Helvetia management wherein they expressed the opinion that only one section of the mine 

should be closed. He also testified that he would not necessarily close an 

entire mine if methane in excess of 1.5 percent was found. With regard to 

Inspector McClure's alleged detection of methane in excess of five percent, 

Supervisor Nelson testified that he was informed that Inspector McClure 

obtained such a reading at a cave by the roof rather than at a place where 

methane readings should be taken by law. Supervisor Nelson stated his 

1021 
opinion that an inundation of gas was a sudden inrush or a slow build 

up that covered a:n .. ai;-~a ... -

Robert Anderson has been the manager of mines for Helvetia for one year. 

He testified that he did not know if anyone from Helvetia informed Inspector Tersine of the levels of methane found by the operator. Prior to the 

issuance of the order ·of withdrawal, Helvetia was rearranging stoppings and 

tightening canvas and checks. Four stoppings had been built during the day 

shift on September 6. The return air flow was changed. Manager Anderson 

asstnned that the acctnnulation of methane was due to falls that knocked out 

canvas and disturbed the ventilation system. He never ascertained the 

cause of the acctnnulation of methane. 

Manager Anderson testified that he was unable to determine the exact 

area of methane concentration because of the existence of falls. Nevertheless, he expressed his opinion that the entire mine should not have been 

closed, because even if there was an explosion, it would only affect 

one section, and ~he possibility of ignition was remote. He conceded that 

he had no experience or expertise in the area of mine explosions. 

Manager Anderson admitted that on September 6, 1979, he did not have 

Part 50 of the MSHA regulations concerning a duty to .report accidents. 

He thought he was only required to report inundations of water rather than 

inundations of gas as well as water. On the morning of. September 7, 1979, 

he was informed by Superintendent Tanner that Inspector Craver had said 

that he would close the entire mine if he· found· over LS percent methane 

because the inspector "had orders." Manager Anderson knew that the 

1022 
inspector would find more than 1.5 percent methane because the sampling 

by Helvetia repor.t~d_higher-concentrations. Helvetia took more readings 

of methane than are reported on its Exhibit 0-1. 

Jerome Strong, mine foreman, testified that he was the general assistant 

mine foreman in March 1977 and he was involved in the removal of methane 

from the mine at that· time. In the early afternoon of September 5, 1979, 

Section Foreman, Richard Barkley, called him and reported finding methane 

of "five percent or better." Mine· Foreman Strong conceded that no one told 

Inspector Tersine, who was on the premises on September 5 and 6, 1979, what 

had been found regarding methane. 

Edward Onuscheck is the assistant to the president and safety director 

of R & P Coal Company, Helvetia's parent company. He was on vacation· 

at the time of this incident. He returned to work on September 8, 1979. He 

testified that he conducted an investigation which resulted in verbal 

reports being submitted to him. His investigation indicated that at a 

point a couple of hundred feet inby check point No. 4, retreat mining had 

disturbed ventilation and a combination of feeders, cave-ins, and ventilation problems resulted in the excessive accumulation of methane. He further 

concluded that there had been a gradual build up of metha~e but no inundation. He distinguished the March 1977 methane incident at this mine as 

being a massive chain reaction of falls which required that the entire mine 

be de-energized. He also distinguished the March 1977 incident because at 

that time, the extent of the affected area could not be identified, whereas 

in the present case, the area was defined. However, he agreed that as late 

as September 8, 1979, a finding of 4.1 percent methane was made at the 

1023 
right regulator after the methane had been diluted. He also conceded that 

if there were an ~~pl_Q_~ion in the mine, he would feel safer if all men were 

outside the mine. He defined "inundation" as a flooding or outburst. 

Hence, he did not believe that the incident in question was an inundation 

of methane. He also noted that section 50.10 of the regulations became 

effective in January 1978, wherein the definition of "accident" was expanded 

to include inundations of gas as well as inundations of liquid. 

Documentary Evidence 

Helvetia submitted reports of methane readings taken at various points 

in the mine from September 5 through 9, 1979. However, no~e of the reports 

for September 5, 1979, showed the percentage of methane found. On 

September 6, 1979, 9.7 percent methane was found at check point No. 3 at 

2:35 p.m. The various readings for September 6 show three readings of five 

percent methane or more. On September 7, 9.9 percent methane was found at 

check point No. 3 at 9:35 a.m. Even as late as September 8, 4.1 percent 

methane was found at the right regulator which was approximately 1 mile 

from the points where methane in excess of five percent was previously found 

(Exh. 0-1). 

The Mine Examiner's Report of Daily Inspections submitted by Helvetia 

showed several alterations under the subject of explosive gases. For 

example, on September 5, the word "none" appears under the colmnn of 

"Explosive Gases" but is crossed out and the following appears: "excessive amount of CH4 found in right return" (Exh. 0-3). 

Helvetia submitted a copy of the definition of the term "inundation" 

from the Dictionary of Mining, Mineral, and Related Terms, Bureau of Mines, 

which is as follows: "An inrush of water on a large scale which floods 

1024 
the entire mine or a large section of the workings" (Exh. <r-4). Helvetia 

also submitted-a definl:tl:on of the term "inundate" from Webster's New 

Collegiate Dictionary which is as follows: "l: to cover with a flood: 

overflow. 2: overwhelm" (Exh. 0-5). 

MSHA submitted a computer printout of the prior violations at the mine 

in question for the previous 2 years. In that period of time, 448 violations were assessed for a total amount of $60,626. There were no prior 

violations of 30 C.F.R. § 50.10,, (Exh. G-4). 

EVALUATION OF THE EVIDENCE 

All of the testimony, exhibits, stipulations, and arguments of counsel 

have been considered~ The evidence shows that in the early afternoon of 

September 5, 1979, Richard Berkely, a section foreman, found methane in 

excess of five percent in the return airway of the 1 Butt 4 Right Section 

of the Lucerne No. 6 Mine. Several hours later, the power was cut off 

and normal mining operations were voluntarily discontinued in this section 

by Helvetia. No one informed MSHA of this condition until a miner mentioned 

the methane problem to MSHA Inspector George Tersine approximately 24 hours 

after the discovery of the excessive methane. When Inspector Tersine 

inquired of Helvetia management about the methane problem, he was advised 

that 1.8 percent methane had been found in the return -airway and that the 

power had been cut off and normal mining operations ~iscontinued. Inspector 

Tersine did not.go into the affected area to conduct an inspection. He 

returned to the MSHA office and subsequently informed his supervisor, 

Robert Nelson. Three MSHA inspectors went into the affected section on the 

evening of September 6 and early morning of September 7. No orders were 

issued. At 8:15 a.m. on September 7, 1979, Inspector Roy Craver went 

1025 
undergro~nd to conduct an inspection. He found concentrations of methane 

in excess of five-percent at several places in the affected section. He 

advised Helvetia management that he would issue an imminent danger withdrawal order based upon his findings. He returned to the surface and discussed his findings and proposed course of action with Supervisor Robert 

Nelson. At 1:15 p.m. on September 7, 1979, Jnspector Craver issued an 

imminent danger withdrawal order for the entire mine. At the time of the 

issuance of the imminent withdrawal order, 161 miners were removed. The 

.order was terminated on September 9. On September 12, 1979, Inspector 

Tersine issued a citation to Helvetia for violation of 30 C.F.R. § 50.10, 

failure to report an accident to MSHA. 

MSHA contends that the withdrawal order due to imminent danger pursuant 

to section 107 of the Act was properly issued and that the entire mine should 

have been closed because of the imminent danger. MSHA further contends that 

a civil penalty in the amount of $60 should be assessed against Helvetia for 

failure to report an accident. Helvetia concedes that an· imminent danger 

existed in the affected section of its mine but contends that the withdrawal 

order should be modified to permit the rest of the mine to remain open 

because no imminent danger existed in other sections. Helvetia further 

contends that there was no inundation of its mine by gas and, hence, it had 

no duty to report an accident to MSHA. 

Withdrawal Order due to Imminent Danger 

Since Helvetia concedes that there was an imminent danger which warranted the issuance of a withdrawal order in the affected section, its 

evidence concerning the remoteness of a possible ignition of the methane 

1026 
is of no moment. The sole issue is whether the order of withdrawal should 

be modified to limit it to the affected section rather than to the entire 

mine. In this regard, Helvetia is the party proposing a modification of 

the order and, hence, has the burden of proof to establish such a modification. See 5 U.S.C.A. § 1006(c) and Environmental Defense Fund v. 

Environmental Protection Agency, 548 F.2d 998 (D.C. Cir. 1977). 

Helvetia's evidence fails to show that the imminent danger was confined 

to one section of the mine. Although Robert Anderson and Edward Onuscheck, 

Helvetia management employees, expressed their opinions that the order was 

too broad, they failed to support such opinions with facts_ OJ:' expertise in 

the area of mine explosions. Edward Onuscheck conceded that in the event 

of an explosion in the mine, he would feel safer if all miners were outside 

the mine. Moreover, since the area containing methane could not be specifically identified, it was impossible to estimate the extent of a potential 

' explosion. Hence, the opinions of Robert Anderson and Edward Onuscheck concerning the area of the mine which would be affected by an explosion are 

entitled to little weight. 

However, MSHA presented credible evidence that the entire mine would· 

be affected by an explosion and that the safety of the miners required the 

protection of a withdrawal order encompassing the entire mine. Inspector 

Craver and Supervisor Nelson presented credible testimony concerning the 

reasons for closing the entire mine. 

The preponderance of the evidence establishes that the withdrawal order 

of the entire mine was properly issued and should not be modified. The 

application for review is DISMISSED. 

1027 
Civil Penalty Proceeding 

A mine operator is required to "immediately contact the MSHA District 

or Subdistrict Office having jurisdiction of its mine" if an accident occurs. 

30 C.F.R. § 50.10. An "accident" is defined, inter alia, as "an unplanned 

inundation of a mine by a liquid or gas." 30 C.F.R. § 50.2. MSHA contends 

that a civil penalty should be assessed because Helvetia failed to notify it 

of the accident in question. Helvetia contends that it did not violate the 

Act because there was no "inundation" of the mine and, hence, no duty to 

report this occurrence to MSHA. 

Resolution of the civil penalty case depends up()~_.whether there was an 

"inundation" by methane. The parties cite no prior cases construing this 

term. 

As noted, supra, the term "inundation" is defined in the Dictionary of 

Mining, Mineral, and Related Terms as "an inrush of water on a large scale 

which floods the entire mine or a large section of the workings." Webster's 

New Collegiate Dictionary defines "inundate" as "l. to cover with a flood: 

Overflow. 2. Overwhelm." Webster's New International Dictionary, 2d Ed., 

Unabridged (1955) defines inundation as follows: 

1. Process or act of inundating, or state of being 

inundated; an overflow; a flood; a rising and spreading 

of water over low grounds. 

2. An overspreading of any kind; an overflowing or 

superfluous abundance; as, an inundation .of tourists. 

Clearly, the purpose of the regulation in _question is to afford MSHA 

the opportunity to make its own assessment of the "inundation" in order to 

accomplish the goal of protecting the safety of miners. Although Helvetia 

1028 
never voluntarily informed MSHA of the methane problem in this case, MSHA's 

actions in the 24noufs'arter it had notice of the condition present a sorry 

example of mine safety enforcement. Upon questioning Helvetia management on 

the afternoon of September 6, 1979, Inspector Tersine was informed that 

1.8 percent methane was found in the return airway of the affected section. 

Helvetia's own evidence shows that over five percent methane had been found 

prior to that time. None of Helvetia's witnesses contradicted the statement 

of the inspector that Helvetia reported only 1.8 percent methane. It is 

noted that Robert Anderson of Helvetia was present at the time Inspector 

Tersine was informed of the methane reading in question. 30 C.F.R. § 75.308 

provides that where the air contains 1. 5 percent or more o-f. methane' all 

miners, except those necessary for abatement, shall be withdrawn and all 

electric power shall be cut off. Even though Helvetia advised the inspector 

that miners had been withdrawn and electric power cut off, the inspector did 

not go into the affected area to determine the actual amount of methane or 

the extent of the area affected by the hazard. Rather, the inspector 

returned to his office. While three MSHA inspectors visited the affected 

section later that same day,- no orders were written despite Helvetia's 

own records which showed methane concentrations of up to 9.7 percent. It 

was not until September 7, 1979, at 1:15 p.m., 24 hours after MSHA's first 

notice and 48 hours after Helvetia's discovery of methane in the explosive 

range, that Inspector Craver issued the order of withdrawal for the entire 

mine. During the 48 hours after the methane was detected by Helvetia, 

all of the. elements necessary for a mine explosion were present. Fortunately, 

no such incident occurred. 

1029 
While MSHA can be criticized in this case for its lack of diligent 

enforcement of the l~~. e~a~~ed to ensure the safety of miners, I find that 

the principal culprit in this occurrence was Helvetia. On a prior occasion 

in 1977, it had encountered a large quantity of methane and promptly 

reported it to MSHA's predecessor. In the instant case, it not only failed 

to report the incident to MSHA, but when asked about this condition by 

Inspector Tersine, Helvetia gave incorrect and misleading information to 

MSHA which minimized the danger. At no time did Helvetia advise MSHA that 

it found methane in the explosive range. Helvetia's Mine Examiner's Reports 

beginning on September 5, 1979, have been altered. The original entries 

showed no findings of explosive gas, whereas the alterations show "excessive 

amount of CH4 found in right return." 

In any event, the weekly inspection of the right return airway on 

August 31, 1979, showed no evidence of methane. The inspection on 

September 5, 1979, revealed methane concentrations in that area between five 

and ten percent. Neither the extent of the affected area nor the source 

of the methane was ever specifically identified. However, it is clear that 

the affected area was over 200 feet from the end of the mine and all reported 

readings in that area on September 5, 1979, were in excess of five percent 

methane. The facts of this case establish the following: (1) there was no 

methane present in the return airway on August 31, 1979; (2) on September 5, 

1979, all of Helvetia's methane readings in the affected area were between 

five and ten percent; and (3) the.methane in question covered a large, undefined area of the mine. Therefore, whether the term "inundation" is defined 

as an inrush of gas which floods an area, a covering of an area with a flood 

1030 
of gas, or an overspreading of gas, I find that this mine was inundated by 

methane on September 5, 1979, and that Helvetia was required to report it 

as an accident to MSHA pursuant to 30 C.F.R. § 50.10. 

Section 103(j) of the Act, 30 U.S.C. § 812(j) requires an operator to 

notify MSHA of any accident occurring in a mine. Section 3(k) of the Act, 

30 U.S.C. § 802(k), defines "accident" to include a "mine inundation." 

Since I find that Helvetia violated section 103(j) of the Act and 30 C.F.R. 

§ 50.10, a civil penalty must be assessed. 

In assessing a civil penalty, the six criteria set forth in section 

llO(i) of the Act, supra, shall be considered. As pertinent here, the 

operator's prior history of 447 violations in this mine in the previous 

2 years is noted. None of those violations was for 30 C.F.R. § 50.10. 

Helvetia is a large operator and the assessment of a civil penalty will 

not affect its ability to continue in business. 

Helvetia was negligent in failing to report the inundation in question. 

Helvetia's management did not even have a copy of the regulation in question 

at its mine office. There is evidence in the record, in the form of alterations in the Mine Examiner's Report of Daily Inspection and-misleading 

statements to Inspector Tersine that only 1.8 percent methane had been found, 

which would support an inference of gross negligence on the part of Helvetia. 

However, there is also evidence that Helvetia voluntarily cut off electric 

power and discontinued normal mining operations in this section and believed 

that it had no duty to report this occurrence to MSHA because the accumulation of methane did not amount to an "unplanned inundation of a mine by a 

1031 
* * * g~s." Although I have found that these contentions by Helvetia do 

not preclude a -£-ind-ing -of-violation of the Act and regulation, they are 

·relevant to the issue of Helvetia' s negligence. For these reasons, I 

find that Helvetia's conduct amounted to a high degree of negligence but 

less than gross negligence. 

The gravity of this violation is extremely serious. MSHA's ability to 

perform its duty to protect the safety of miners was significantly impaired 

by Helvetia's failure to notify it of the inundation of the mine by methane. 

More than 400 miners continued to work in the mine after the discovery of 

excessive concentrations of methane. Since I have upheld the validity of a 

withdrawal order for the entire mine, supra, I find that the failure to 

report the inundation of the mine by methane constituted an extremely 

serious condition. I reject Inspector Tersine's testimony that this was 

not a serious violation. The inspector's conclusion that the failure to 

report an inundation of methane was not serious can only be explained by 

his refusal to take any action after being informed that 1.8 percent 

methane had been found and Helvetia had voluntarily cut off electric power 

and discontinued normal mining in the affected section. There can be no 

justification for concluding that the failure to report a mine inundation 

by methane is not serious. 

The citation in question shows that it was terminated 15 minutes after 

it was issued upon a review by management of the procedures to notify MSHA 

of an accident. The issue of good-faith compliance is of little significance in this case. 

1032 
At the_hearing, the attorney for MSHA requested that a civil penalty 

of $60 be assessed.-- Such a Si:-atement in light of the evidence of record 

makes a mockery of the criteria mandated by Congress in section llO(i) 

of the Act. It is the purpose of those criteria to insure that while 

the amount of the penalty will not unduly hamper the ability of the operator to stay in business, it will deter future violations of the Act. 

I conclude that the evidence established that Helvetia violated 

section 103(j) of The Act and 30 C.F.R. § 50.10 by failing to report 

to MSHA an inundation of its mine by methane. Helvetia's conduct amounted 

to a high degree of negligence. After MSHA finally heard about the problem, 

Helvetia told the inspector that it had only 1.8 percent methane when its 

own tests showed methane concentrations between five and ten percent. I 

further find that the violation was extremely serious because the lives of 

more than 400 miners were endangered. For these reasons, I reject MSHA's 

request to impose a civil penalty of $60. Based upon all of the evidence 

of record and the criteria set forth in section llO(i) of the Act, I conclude that a civil penalty of $2,500 should be imposed for the violation 

found to have occurred. 

ORDER 

Therefore, it is ORDERED that the application for review is DENIED and 

the subject withdrawal order is AFFIRMED. 

1033 
It is FURTHER ORDERED that Respondent pay the sum of $2,500 within 

30 days of the date _ _o_f this- decision as a civil penalty for the violation 

of section 103(j) of the Act and 30 C.F.R. § 50.10. 

s A. Laurenson, Judge 

Distribution by Certified Mail: 

Jay W. Freedman, Esq., Freedman, Levy, Kroll and Simonds, 1730 K 

Street, Washington, DC 20006 

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street, 

NW., Washington, DC 20005 

•u.s. GOVERNMENT PRINTING OFFICE : 1980 0-311-143/3454 

1034