January 1981 

Commission Decisions 

1-08-81 

1-09-81 

1-19-81 

1-27-81 

1-28-81 

1-28-81 

Cyprus Industrial Minerals Corp. 

U S Steel Corp. 

Kenny Richardson 

Sigler Mining, Inc. 

Williamson Shaft Contracting Co. 

El Paso Rock Quarries, Inc. 

Administrative Law Judge Decisions 

1-02-81 

1-05-81 

1-05-81 

1-05-81 

1-05-81 

1-05-81 

1-05-81 

1-06-81 

1-06-81 

1-06-81 

1-06-81 

1-07-81 

1-08-81 

1-09-81 

1-09-81 

1-12-81 

1-13-81 

1-13-81 

1-13-81 

1-14-81 

1-14-81 

1-14-81 

1-14-81 

1-14-81 

1-14-81 

1-14-81 

1-16-81 

1-16-81 

1-19-81 

1-21-81 

1-21-81 

1-27-81 

1-28-81 

1-28-81 

1-28-81 

1-28-81 

Harman Mining Corp. v. MSHA & UMWA 

Quarto Mining Co. 

Quarto Mining Co. 

Quarto Mining Co. 

Windsor Power House Coal Co. 

Mathies Coal Co. 

C F & I Steel Corp. 

Jewell Ridge Corp. 

Price Construction, Inc. 

Sharp Mountain Coal Co. 

Belton Sand & Gravel Co. 

Barnes & Tucker Co. 

U S Steel Corp. 

Erie Blacktop, Inc. 

Oliver M. Elam, Jr., Co., Inc. 

Callanan Industries, Inc. 

Mecco, Inc. 

Sharon A. Pace v. Consolidation Coal Co. 

Texas Lime Co. 

Youghiogheny & Ohio Coal Co. 

W. B. Coal Co. 

Ogle County Highway Department 

White Pine Copper Div., Copper Range Co. 

Itmann Coal Co. 

Riverside Cement Co. 

Riverside Cement Co, 

Lone Star Steel Co. 

Midwest Minerals, Inc. 

Kennecott Copper Corp. 

Edward Kraemer & Sons, Inc. 

Quarto Mining Co. 

Island Creek Coal Co. 

Dove Creek Granite Co., Inc. 

Maben Energy Corp. 

Ranger Fuel Corp. 

Climax Molybdenum Co. 

DENV 78-558-M 

HOPE 75-708 

BARB 78-600-P 

WEVA 80'-519 

VA 80-17-C 

DENV 79-139-PM 

VA 80-94-R 

LAKE 80-311 

LAKE 80-360 

LAKE 80-384 

WEVA 80-84 

PENN 79-89-R 

WEST 79-241 

VA 80-77 

CENT 80-276-M 

PENN 80-218-R 

CENT 80-324-M 

PENN 80-246-R 

WEVA 81-33-R 

VINC 79-39-PM 

VINC 78-447-P 

YORK 79-99-M 

LAKE 79-219-M 

SE 80-113-D 

CENT 79-392-M 

LAKE 80-207 

LAKE 79-218 

LAKE 80-210-M 

LAKE 80-236-RM 

WEVA 80-166-R 

WEST 80-20-M 

WEST 80-21-M 

CENT 79-403-M 

CENT 80-86-M 

CENT 79-273..:M 

LAKE 80-393-M 

LAKE 80-385 

WEVA 79-112-P 

SE 80-66-M 

WEVA 80-437-R 

WEVA 79-218-R 

DENV 79-389-PM 

Pg. l 

Pg. 5 

Pg. 8 

Pg. 30 

Pg. 32 

Pg. 35 

Pg. 45 

Pg. 67 

Pg. 68 

Pg. 69 

Pg. 70 

Pg. 86 

Pg. 99 

Pg. 106 

Pg. 109 

Pg. 115 

Pg. 122 

Pg. 127 

Pg. 131 

Pg. 135 

Pg. 161 

Pg. 168 

Pg. 174 

Pg. 176 

Pg. 180 

Pg. 185 

Pg. 193 

Pg. 205 

Pg. 211 

Pg. 224 

Pg. 237 

Pg. 240 

Pg. 243 

Pg. 251 

Pg. 255 

Pg. 259 

Pg. 266 

Pg. 267 

Pg. 272 

Pg. 276 

Pg. 279 

Pg. 281 

Commission Decisions 


JAi~UARY 

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

Secretary of Labor, MSHA v. Salt Lake County Road Department, WEST 79-365-M; 

(Judge Vail, November 25, 1980) 

Local 781, United Mine Workers of America v. Eastern Associated Coal Co., 

WEVA 80-473-C; (Judge Fauver, November 26, 1980) 

Secretary of Labor, MSHA v. Lone Star Industries, Inc., VA 80-67-M; 

(Judge Steffey, November 28, 1980) 

Secretary of Labor, MSHA v. Carolina Stalite Company, BARB 79-319-PM, etc.; 

(Judge Kennedy, December 2, 1980) 

Secretary of Labor, MSHA v. Eastover Mining Company, VA 80-84; (Judge 

Laurenson, December 17, 1980) 

Secretary of Labor, MSHA v. Climax Molybdenum Company, DENV 78-553-M, etc.; 

(Judge Cook, December 18, 1980) 

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

Jackie R. Hammonds v. National Mines Corporation, KENT 79-345-D; (Judge 

Fauver, November 24, 1980) 

Secretary of Labor, MSHA v. Rockite Gravel Company, LAKE 80-130-M; 

(Judge Bernstein, December 4, 1980) 

Secretary of Labor, MSHA v. West Virginia Auger Corporation, WEVA 80-354; 

(Judge Melick, December 10, 1980, default decision) 

Secretary of Labor, MSHA v. Scotia Coal Company, BARB 78-306, etc.; 

(Judge Kennedy, Interlocutory Review of April 30, 1980 order) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CYPRUS INDUSTRIAL MINERALS 

CORPORATION 

January 8, 1981 

Docket No. DENV 78-558-M 

DECISION 

The issue before us is whether the site of the contested withdrawal 

order is a mine as defined by section 3(h)(l) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §801 et~· (Supp. III 1979). 

On August 3, 1978, an imminent danger withdrawal order was issued 

to Cyprus Ind~strial Minerals (CIM), which filed an application for 

review of that order. The area subject to the order was CIM's Bosal No. 

1 claim. An independent contractor, Pee Wee Holmes, had contracted with 

CIM to establish a portal and drift in order to assess the ore on the 

claim. Holmes had one employee, Raymond Pederson, aiding him in performing the work. They b~gan operations on July 29, 1978. On August 2, 

they cleared away muck at the base of the portal and cleared the overburden above the portal in preparation for setting posts. They also 

scaled from the top of the hill and the grotind, and barred and scaled 

the brow. On August 3, Holmes and Pederson completed the barring and 

scaling to their satisfaction and were in the process of setting posts, 

when rocks suddenly broke loose from the face of the drift. Pederson 

was crushed to death by the rocks. An. inspector from the Mine Safety 

and Health Administration (MSHA) investigated the area and issued an 

imminent danger withdrawal order under section 107(a) of the Act. 

The administrative law judge found the operation to be a mine subject 

to the jurisdiction of MSHA under the Act. The judge concluded that the 

work at the Bosal No. 1 claim "was in fact work normally associated with 

a talc mining operation." Dec. at 13. He stated: 

Mr. Holmes was driving a drift at the time of the accident and this 

work included blasting, drilling, cutting, removal and cleaning of 

materials, timbering, bulldozing overburden, barring and scaling of 

loose rock, and attempts at establishing a brow and a portal for 

the express purpose of extracting minerals •••• Further, applicant 

1 81-1-5 
conceded the existence of a mineable ore body and that Mr. Holmes 1 

work was directly related to the eventual mining of that ore; and, 

by the very terms of the contract .•• Mr. Holmes agreed to establish 

a portal and to drive an exploration drift. Under these circumstances, 

I conclude and find that Hr. Holmes' work at the time of the accident 

were in fact mining activities within the meaning of the Act, that 

the work being performed at the Bosal Claim was work at a 11mine 11 as 

defined by the Act, and that MSHA had enforcement jurisdiction to 

regulate those activities through the applicable mandatory 

standards promulgated under the Act. 

Id. The judge affirmed the withdrawal order and dismissed the application for review. For the reasons that follow, we affirm the judge. 

The legislative history of the Act mandates a broad reading of the 

expansive definition of "mine" in the Act. The Senate Committee that 

drafted the bill including the definition adopted in the Act stated with 

regard to that definition: 

The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's 

intention that what is considered to be a mine and to 

be regulated under this Act be given the broadest 

possibl[e] interpretation, and it is the intent of this 

Committee that doubts be resolved in favor of inclusion 

of a facility within the coverage of the Act. 

S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate 

Subcommittee on Labor,Committee on Human Resources; 95th Cong., 2d 

Sess., Legislative History of the Federal Hine Safety and Health Act of 

1977, at 60.2 (1978). See also Marshall y_. Stoudt' s Ferry Preparation Co., 

602 F.2d 589, 592 (3rd Cir. 1979), cert. denied, 444 U.S. 1015 (1980). In 

addition, it is well established that safety and health legislation 

should be liberally construed. See ~· Whirlpool Corp. v. Marshall, 

, 100 S. Ct. 883, (1980)(0SHAct); Freeman Coal Mining Co. 

v. 504 F.2d 741, 744 

(7 

1/ The definition of a mine is found in section 3(h)(l) of the Act: 

"coal or other mine" means (A) an area of land from which 

minerals are extracted in nonliquid form or, if in liquid form, are 

extracted with workers underground, (b) private ways and roads 

appurtenant to such area, and (C) lands, excavations, underground 

passageways, shafts, , tunnels and workings, structures, 

facilities, equipment, machines, tools, or other property including 

impoundments, retention dams, and tailings ponds, on the surface or 

underground, used in, or to be used in, or resulting from, the work 

of extracting such minerals from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or 

used in, or to be used in, the milling of such minerals, or the 

work of preparing coal or other minerals, and includes custom coal 

preparation facilities .•.• 

2 
The purpose of the Mine Act is to protect miners against the hazards 

of their occupation as Congress indicated in section 2(a)-(c) of the 

Act. Those hazards clearly were present in this case, and the activity 

at the Bosal claim must be included in the jurisdiction of the Act. CIN 

has argued that the Bosal operations were purely exploratory and, therefore, 

are not mining. It fears that "virtually any action taken merely to 

assess the ore body, even if the taking of surface samples or use 

of a counter, could convert an undeveloped mining claim into a 

'mine 1 under the Act.If This case involves, however, neither exploration 

with a geiger counter, nor taking of surface samples. Holmes and Pederson 

attempted to drive a drift and establish a portal at the Bosal claim. 

Their work was mining activity and involved the hazards intended to be 

protected by the Act. 1'Jhether or not the Nine Act reaches all act 

labeled "exploratory"--a question we need not decide today--the activity 

at the Basal claim falls within the definition of mining. The Act 

provides an definition of a 11minetr, which Congress stated must 

be the "broadest possible interpretation", with "doubts resolved 

in favor of inclusion." 

Accordingly, the judge's decision is affirmed. 

! ... . '\·I '\,\•\,;1 )02 i ) .. i\ \~\\:....,~ 

Nease, Commissioner 

2 CIM also asserts that the j erred in finding that the activity 

at the Bosal claim was work normally associated with talc mining. CIN 

relies on the uncontradicted testimony of its production manager that 

CIM generally mines talc in open pits rather than from portals and 

drifts, It is true that the record does not contain information on 11norrnal talc mining operations." The judge's error, if any, is harmless. The question in the case was whether the operation was mining, 

not whether it was 11 normal talc mining." 
Distribution 

O'MELVENY & MYERS 

SCOTT H. DUNHAM 

611 West Sixth Street 

Los Angeles, California 90017 

Cynthia Attwood, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Administrative Law Judge George A. Koutras 

Office of Administrative Law Judges 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Building 2 

Falls Church, VA 22041 

4 

CYPRUS INDUSTRIAL MINEAALS CORP. 

DENV 78-558-M 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

January 9, 1981 

v. Docket No. HOPE 75-708 

UNITED STATES STEEL CORPORATION IBMA No. 77-40 

DECISION 

This proceeding was initiated when United States Steel 

Corporation filed an application for review of an order of 

withd~awal issued pursuant to section 104(c)(2) of the 

Federal Mine Health and Safety Act of 1969. After hearing, 

the administrative law judge affirmed the order and dismissed 

the operator's application for review. U.S. Steel appealed 

to the Board of Mine Operations Appeals (BMOA). BMOA acted 

on that appeal on March 15, 1977, remanding the case to the 

administrative law judge for a specific finding of fact to 

be made as to whether there had been a complete inspection 

of the mine subs~quent to the issuance of the section 104(c)(l) 

order, and prior to the inspection which precipitated the 

issuance of the withdrawal order under appeal. The administrative 

law judge on remand found that the applicant (operator) had not 

established by a preponderance of the evidence that there had 

been a complete inspection. 

U. S. Steel again appealed to BMOA. That appeal was 

pending before the Board as of March 8, 1978, and is therefore 

before the Commission for disposition. 30 U.S.C.A. §961 (1978). 

In CF&I Steel Corporation, Docket No. DENV 76-46 (December 2, 

1980), we held that "a prerequisite to the issuance of an order 

of withdrawal under section 104(c)(2) of the 1969 Coal Act was 

the absence of an intervening 'clean' inspection of the entire 

mine, and that it was MESA's obligation to present a prims facie 

case of that fact to sustain the order." In this case, the judge 

erred in not requiring MESA to present a prima facie case on the 

issue of an intervening "clean" inspection. We have reviewed the 

record and find that MESA did not establish a prima facie case 

of the absence of such an inspection. 

5 81-1-9 
Therefore, in accordance with our decision in CF&I Steel, 

the decision of the judge is reversed and the order of withdrawal is vaca~ed. 

Marian Pearlman Nease, Commissioner 
Distribution 

Billy M. Tennant, Esq. 

U.S. Steel Corporation 

600 Grant Street 

Pittsburgh, PA 15230 

Cynthia Attwood, Esq. 

Thomas A. Mascolino, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge George Koutras 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

Falls Church, Virginia 22041 

7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KENNY RICHARDSON 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 19, 1981 

Docket No. BARB 78-600-P 

DECISION 

This case presents several issues arising out of an alleged violation of section 109(c) of the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. §801 et~· (1976) ("the Coal Act" or "the Act"). l/ 

In his decision, the administrative law judge concluded that Kenny 

Richardson, Peabody Coal Company's (Peabody) day shift master mechanic, 

had "knowingly authorized, ordered, or carried out a violation of 30 CFR 

§77.404(a)". He found Richardson individually liable pursuant to 

section 109(c) and assessed a $500 penalty against him. J:./ For the 

reasons below, we affirm the judge. 

On August 4, 1977, a federal mine inspector issued to Peabody a 

notice alleging that it had violated 30 CFR §77.404(a) because: 

[m]obile equipment in unsafe condition was not removed from service 

immediately, in that, a crack in the lower chord of the boom of the 

Bucyrus-Erie 1260 dragline was known to exist and not removed from 

service. )_/ 

1 The alleged violation occurred when the Coal Act was in effect. The 

Secretary of Labor filed a petition for assessment of civil penalty on 

July 28, 1978, after the effective date of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §801 et~· (Supp. III 1979) ("the Mine 

Act"). Thus, while the alleged violation arose under the Coal Act, the 

case has been processed under the Mine Act review procedures. Section 

109(c) of the Coal Act and section llO(c) of the Mine Act are identical 

except for the redesignation of other affected sections. Therefore, 

although our analysis would be the same under either Act, this decision 

discusses the violation in terms of the statute in effect at the time 

the alleged violation occurred, the Coal Act. 

2/ The judge concluded that Richardson had not "knowingly" violated 

another cited standard, 30 CFR §77.405(a). No issue concerning the 

judge's disposition of this alleged violation is before us on review. 

)_/ A dragline is "A [crane-·like] type of excavating equipment which 

casts a rope-hung bucket a considerable distance, collects the dug 

material by pulling the bucket toward itself on the ground with a second 

rope, elevates the bucket and dumps the material on a spoil bank, in a 

hopper, or on a pile." Dictionary of Hining, Mineral and Related Terms, 

at 346 (Department of Interior, 1968). 

8 81-1-13 
The inspector issued the notice following his investigation of a fatal 

accident that had occurred while the boom was being repaired, after the 

dragline had been removed from service. 

On July 28, 1978, the Secretary of Labor filed a petition for 

assessment of civil penalty against Richardson. !±J Richardson contested 

the action and a hearing was held. From the administrative law judge's 

decision finding him in violation of section 109(c) of the Coal Act, 

Richardson filed a petition for discretionary review. We granted the 

petition for review and heard oral argument. 

The issues before us are: 21 

(1) Is the Interior Board of Mine Operations Appeals' decision in 

Everett L. Pritt, 8 IBMA 216 (1977), correct insofar as it held that the 

corporate operator need not be a party to a section 109(c) proceeding 

against the corporate agent; 

(2) Did the judge err in finding that the dragline was unsafe 

while it was in service; 

(3) Did the judge erroneously construe the "knowingly" element of 

section 109(c) of the Coal Act; 

(4) Did the judge err in concluding that Richardson knowingly 

permitted an unsafe dragline to remain in service in violation of 30 CFR 

§77.404(a); 

(5) Is section 109(c) of the Coal Act unconstitutional because it 

imposes liability only on agents of corporate operators? 

In its decision in Everett.L. Pritt, the Interior Board of Mine 

Operations Appeals concluded that the corporate operator need not be a 

par to a section 109(c) proceeding against an agent, even though a 

necessary predicate for an agent's liability under section 109(c) is a 

finding that the operator violated the Act. Richardson urges that the 

Commission not follow the Board's decision, asserting that section 

109(c) requires that a corporate operator must be found to have violated 

a mandatory standard, in a proceeding to which the operator is a party, 

before liability can be imposed on the corporate agent. Richardson 

submits that because the Secretary did not name Peabody as a partyrespondent to the present proceeding, and because Peabody's failure to 

contest the.violation alleged against it should not constitute an 

admission of liability, he cannot be held liable. 

was cited separately for a violation of the same mandatory 

standard, but was not named as a party-respondent to the instant proceeding. Peabody did not contest the charges against it and paid the 

penalties assessed. 

21 Our statement of the issues restates, but encompasses, the issues 

raised in the petition for discretionary review. 

9 
Section 109(c) of the Coal Act provides: 

Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or fails 

or refuses to comply with any order issued under this Act 

or any order incorporated in a final decision issued under 

this Act, except an order incorporated in a decision issued 

under subsection (a) of this section or section 110(b)(2) 

of this title, any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or carried 

out such violation, failure, or refusal shall be subject 

to the same civil penalties, fines, and ·imprisonment that 

may be imposed upon a person under subsections (a) and (b) 

of this section. 

We find the language of section 109(c) and its legislative history 

to be ambiguous and not dispositive of the question presented. Consequently, we have considered the arguments for and against the 

decision, and are persuaded by the strong practical arguments underlying 

the Board's decision. Here the corporate operator, Peabody, paid the 

penalty sought t it prior to formal assessment or a hearing. In 

doing so, the corporate operator exercised its rights under the statute 

and the applicable regulations not to contest the Secretary's allegation 

of a violation and proposed penalty, and by operation of statute it 

became a final order of the Commission not reviewable by any court or 

agency. 30 U.S.C. 815(a); 30 CFR Part 100. As a result of the operator's 

failure to contest the alleged violation, the Secretary could not have 

securea an adjudication on the merits that the operator violated the 

standard. Thus, unless the Secre can prove the corporate operator's 

violation of the standard as an element of proof in its case a~ainst the 

agent, it would be impossible to reach the agent under section 109(c) in 

those cases where, as here, the operator paid the proposed penalty and 

thereby avoided a hearing on the merits. 

Conversely, we are unpersuaded by the arguments in opposition to 

Pritt. First, the rationale of Prit does not jeopardize either the 

agent's or the operator's due process r As did the Board, we 

believe that due process does not require a determination of the 

operator's violation in a proceedin~ separate from that in which the 

agent is found liable. The is not at risk for a penalty in the 

proceeding against the agent. Whet~er or not the operator is found 

liable in a separate proceedin~, the Secretary must still prove 

his case in a section 109(c) proceeding against the agent. The operator's 

violation is merely an element of proof in the Secretary's case against 

the agent. Thus, the agent's due process rights are protected by 

this procedure; he has notice and an opportunity to be heard in the 

proceedings against him, including the opportunity to contest the 

threshold allegation that the operator violated the standard. 

Second, a proceeding against only the agent does not necessarily 

permit the operator to escape without cost. Here the operator paid 

penalties prior to litigation. Such a procedure conserves the operator's 

and the government's resources by eliminating the need for a potentially 

protracted and costly administrative proceeding against the operator. 

10 
Third, we find the rationale of the dissent in Pritt unpersuasive. 

While Congress stated that the agent should not bear the brunt of 

corporate violations, it stated also that an agent should "stand on his 

own and be personally responsible for any penalties or punishment meted 

out to him. 11 !!._/ There is no indication in the legislative history that 

Congress intended to foreclose a penalty proceeding against an agent 

because the operator was not also a par , or that it intended to 

require that a separate proceeding be held to determine if the operator 

violated the standard. Also, we note that the dissent misconstrued the 

law in stating that in the absence of section 109(c), the 11 corporate 

shield" would protect a corporate agent from personal liability. We 

note that the corporate shield, as that terr.i is normally used, does not 

protect agents; it protects shareholders. I.E. Fletcher, Cyclopedia 

of the Law of Private Corporations, §41.3 at 192-193 (rev. perm. ed. 

1974). Therefore, in the absence of section 109(c), agents would be 

protected not by the corporate shield, but rather by the statute's 

general enforceability against operators. 

For these reasons, we conclude that the Board's decision in Pritt 

correctly interpreted and applied section 109(c). 

Did the judge err in finding that the machine was unsafe while in service? 

The cited standard, 30 CFR §77.404(a), provides: 

Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery 

or equipment in unsafe condition shall be removed 

from service immediately. 

The administrative law judge found that the 1260 dragline "was unsafe to 

operate and pursuant to 30 CFR §77.404(a) should have been removed from 

service immediately". Richardson challenges the judge's finding. We 

conclude that the judge's finding is supported by substantial evidence 

of record and must be affirmed. 

Richardson asserts that the judge's find of unsafeness was not 

supported by substantial evidence and that the evidence "compels the 

opposite conclusion". He argues that the finding of unsafeness is 

inconsistent with other findings made by the judge: that later repairs 

weakened the lower chord and caused it to break; that the crack was not 

considered unusual; and that the chord had been repaired numerous times. 

Richardson contends further that the judge's finding, based in part on a 

letter from the dragline's manufacturer after the accident, is unsound 

6 Rep. John H. Dent .-Pa.), House Debate on R.R. 13950, 9lst Cong., 

1st Sess. (1969); reprinted in Senate Subcommittee on Labor, Committee 

on Labor and Public Welfare, 94th Cong., 1st Sess., Legislative History 

of the Federal Coal Mine Health and Safety Act of 1969, Part I at 1191 

(1975). (''Legis. Hist."). 

11. 
because the 

unsafeness. 

defect, not 

manufacturer's field repair instructions do not mention any 

He also argues that the accident was caused by a design 

by an unsafe machine. 

The Secretary submits that Richardson "has •.. ignored the basic 

legal principles pertaining to substantial evidence," because "[i]t is 

axiomatic ..• that a judge 1 s finding cannot be overturned merely because 

•.. the judge could have made a contrary finding.ii The Secretary asserts 

that the judge could have, and did, reasonably conclude that the lower 

chord was cracked in all but 9 inches of its 33-inch circumference at 

the time of Richardson's inspection; that the crack was in a iocation 

which had been repaired on numerous previous occasions; and that the 

crack would continue to enlarge, thus permitting a reasonable inference 

that the dragline was unsafe. 

An observation may help to clarify our discussion and resolution of 

the question of the dragline's unsafeness. A fatal accident occurred 

after the machine had been taken out of service a,nd was under repair, 

after the violation at issue allegedly had occurred. Although this 

fatality is irrelevant to whether Richardson had knowingly failed to 

remove the unsafe machine from service at an earlier time, it has colored 

the discussion of the violation at issue by the parties and the judge. !}_/ 

extended discussion, two further challenges made 

by the sufficiency of the evidence. Richardson argues 

that the judge's findings were not supported by substantial evidence 

because the Secretary purportedly based his entire case on uncorroborated 

hearsay evidence. First, evidence is admissible in an administrative 

proceeding so long as it is not immaterial or irrelevant. Administrative 

Procedure Act, 5 U.S.C. §556(d) (Supp. III 1979). Richardson v. Perales, 

402 U.S, 389 (1971). The hearsay evidence relied on by the judge in 

this case was both material and relevant: it related to the safeness of 

the dragline and to Richardson's knowledge. 

only in part on hearsay evidence. Virtually 

unsafeness and knowledge was corroborated by 

cussion, .!_nfra, at 6. 

Second, the judge relied 

all of the hearsay regardin~ 

direct evidence. See disRichardson asserts also that the proper standard of proof to be 

applied by the administrative law judge is "direct and clearly convincing." The usual standard of proof required in an administrative 

proceeding is a preponderance of the evidence, and we hold that this is 

the appropriate standard of proof in proceedin~s before Commission 

administrative law judges. See 2 Admin. Law §932, at 199. 

In any event, the Mine Act imposes a substantial evidence test for 

Commission review of findings of material fact. 30 U.S.C. §823(d)(2). 

Ii_/ An alleged violation arising out of the fatality was also tried 

before the judge: that Richardson had knowingly failed to ensure that 

the boom had been properly blocked or supported during repairs, as 

required by 30 CFR §77.405(a). The judge found for Richardson on this 

point because there was insufficient evidence of the "knowingly" 

element. The Secretary did not petition for review on this matter, and 

it is not before us. 

12 
The presence of a crack in the boom of the dragline is undisputed. 

There was also general agreement as to how long the crack had existed 

and that it had worsened over time. Numerous witnesses including 

Richardson testified that the crack, indicated by a drop in a pressure 

gauge, had developed sometime before Richardson's Au~ust 2 examination 

of .the dragline. Richardson testified that he was told about the crack 

on August 1, the day before his examination, and that the crack "had 

extended a sna.11 amount from what they could see." Tr. at 233-234; Tr. 

II at 31, 130-131, 172, 187. He testified in addition that, on August 2, 

prior to his examination, he was told that the crack was getting worse. 

Tr. II at 64. When he examined the crack, he "could detect just a 

little movement ..•. " Id. at 137. Other witnesses corroborated the fact 

that the crack was getting larger; "it was moving a little." Id. at 

172, 199. 

The testimony relative to the extent of the crack is somewhat 

ambiguous, and it is unclear whether Richardson realized the magnitude 

of the crack. Richardson testified that during his examination of the 

dragline from the catwalk, he could see a 10-inch long crack. Tr. II at 

65, 66. The Secretary's witnesses reiterated that fact, and testified 

that the crack actually extended for about 29 inches of the chord's 38-

inch circumference. Tr. at 94, 158-161, 217, 261. 

There was also testimony by the federal mine inspector and a 

mechanical engineer familiar with the construction of the dragline that 

a 29-inch crack, or even the 10-inch segment visible from the catwalk, 

was serious enough to warrant removal of the machine from service. Tr. 

at 168-169, 266-267. Their testimony was substantiated by one of 

Richardson's witnesses, Peabody's di rec tor of heavy equipment. He 

testified in the hypothetical that if he had seen a 9-inch crack from 

the catwalk, and in investigating further had determined it was actually 

a 27-30 inch crack, he would have shut the machine down iTI1JTlediately. 

Ir. II at 263. 

Richardson made a number of admissions, which go to the unsafeness 

of the dragline, as well as to his knowledge of the condition. He 

testified that he was concerned about the periodic recurrence of cracks 

in the boom. Prior to August 2, he had contacted the manufacturer for 

advice on repairs because he "wanted to achieve the possibility and 

reduce the chances of this area that had been cracked. It had been too 

numerous; it needed something to be stopped." Tr. II at 37-39, 64. 

Despite his testimony that he did not consider the machine to be unsafe, 

Richardson apparently decided that immediate repairs were necessary, 

because he stated "that we needed to make some repairs pretty quick." 

Tr. II at 66-67, 201. In response to a question about whether he 

believed that the machine should be shut down for repairs, Richardson 

answered, "As soon as I got the available equipment over." Id. at 67. 

Therefore, his conclusion that the machine was safe is at odds with his 

testimony relative to the immediacy of the risk. 

13 

;,.·/'7 
Other evidence also tends to show that the dragline was unsafe 

while it was in service. The Secretary introduced into evidence a 

letter from the dragline 1 s manufacturer, Bucyrus-Erie, in which it 

commented on the Secretary's post-accident report. The letter stated: 

"The machine is equipped with a crack detection and warning system. The 

crack should have been repaired immediatelv when it was detected. 11 Pet. 

Exh. 38. '}_/ Richardson also introduced evidence of prior cracks and 

repairs to support his argument that this crack was no different than 

many that preceded it and impliedly did not make the machine unsafe. We 

reject that argument. As the judge correctly stated: 

It is not enough that Mr. Richardson had allowed 

the machine to operate with a cracked chord in the past. 

This means only that the miners were lucky it did not 

break in the past, not that it was safe or that it 

should have been considered as safe. 

We believe that the above evidence constitutes substantial evidence 

to support the judge's finding that the machine was unsafe while in 

service. We note, however, that the basis of the judge's finding of 

unsafeness is at least partially defective. The judge noted testimony 

by Richardson and his witnesses to the effect that the dragline was 

safe. However, he accepted as more convincing the testimony of the 

Secretary's witnesses "because the ultimate breaking of the chord 

demonstrates that the machine was unsafe". (Emphasis added.) 

Richardson correctly argues that this basis for the judge's finding is 

unsound. The breaking of the chord on the day the alleged 

violation occurred did not necessarily demonstrate anything about the 

safeness of the machine at the time of the alleged violation because, as 

found by the judge, the collapse was caused, at least in part, by a 

repairman's actions, and we do not rely on this rationale in reaching 

our decision. 

One further evidentiary issue merits comment. The judge found that 

the dragline would have been safe and the violation at issue would not 

have occurred if the dragline had been equipped with a modified suspension system. This finding is largely irrelevant to the violation at 

issue because the question here is whether the machine, however equipped, 

was unsafe while in service. The fact of unsafeness, rather than the 

reason for the unsafeness, is relevant. If the machine was unsafe, 

30 CFR §77.404(a) required that it be removed from service immediately. 10/ 

Richardson argues that the judge's finding of unsafeness is "glaringly 

inconsistent" with the manufacturer's instructions for repair. This 

argument is without merit because the instructions relate only to 

support of the boom during repairs, not to the point at issue here, 

i.e., the unsafeness of the machine before it was taken out of service. 

Richardson refers also to the letter from Bucyrus-Erie as "clearly 

inconsistent" with its field instructions, because it failed to mention 

what Richardson contends was a design defect and the proximate cause of 

the accident. Again, the cause of the fatal accident is not at issue. 

10/ Although there was some controversy over the length of time 

Richardson allowed the machine to remain in service, this factor relates 

to the amount of the penalty, not to the fact of violation. 

14 
For the above reasons, we affirm the judge's finding that the 

dragline was unsafe at the time of the alleged violation. 

Did the judge erroneously construe the "knowingly'' 

element of section 109(c) of the Coal Act? 

In his decision, the administrative law judge construed the term 

"knowingly" as used in section 109(c) of the Coal Act to mean "knowing 

or having reason to know." Richardson asserts that the judge should 

have applied a "willfulness" test, rather than what he terms a "negligence" test. Alternatively, he urges that the·statute requires a 

showing of actual knowledge. We reject both ar~uments and affirm the 

judge. 

The statutory provision and its legislative history provide little 

guidance on the construction to be given to the term "knowingly". 

Section 109(c), as enacted, adopted the language of section 308(c) of 

the Senate bill insofar as it dealt with an agent's knowing violation. 

Neither the Conference Report nor the prior Senate Report discussed the 

knowledge requirement. 11/ The House bill imposed a "knowingly" element 

for criminal penalties against agents, but not for civil penalties. 

Although Congress did not specify the meaning of "knowingly" that 

it intended to convey in section 109(c) of the Coal Act, we are per~ 

suaded that Congress did not intend that "knowingly" should be synonymous with "willfully." Section 109(b), which imposed criminal liability 

for violatio~s. stated that any operator who violates a 

mandatory health or safety standard, or knowingly violates or fails or 

refuses to comply with any order issued under section 104 .... " is 

subject to fine 0r imprisonment.(Emphasis addecJ We believe that 

because the words "willfullyn and "knowingly" were used in the disj unc ti ve in section 109(b), and used singly in other sections of the 

Coal Act, e.g., sections 109(c), (d) and (e), must have intended 

the words to have different meanings. See .S. v. Illinois Central 

Ry. Co., 303 U.S. 239, 242, 243 (1938),~oting St. Louis and S.F.R. Co. 

v. U.S., 169 F. 69, 71 (8th Cir. 1909); see also, .s. v. Consolidation 

Coa~., 504 F.2d 1330, 1335 (6th Cir. 1974~There , we reject 

Richardson's argument that "willfulness" must be shown in order to 

establish a violation of section 109(c) . 

. Rep. No. 7 , 16, 71-72; S. 2917, 108; S. Rep. No. 91-

Cong., 1st Sess., 93 (1969); Legis. Hist. at 219, 889, 1515-

The Mine Act's legislative history on section llO(c)'s continued 

use of the term "knowingly" sheds no further light on the issue. See H. 

Rep. No. 95-31, 20; S. Rep. No. 95-181, 40-41; and the Conference 

Report, S. Rep. No. 95-461, 57, 95th Cong., 1st Sess. (1977); reprinted 

in Legislative History of the Federal Mine Safety and Health Act of 1977, 

95th Cong., 2d Sess. (1978) at 376, 628-629, 1335. 

15 
The question remains, however, as to whether Congress intended the 

interpretation reached by the judge in this case, that .,knowingly" means 

"knew or should have known." As the judge observed: 

The word 'knowingly,' as used in civil and criminal statutes, is 

not a term of precise definition. The courts have given various 

shades of meaning to the word, depending upon the context in which 

it was considered. 

In our view, the judge analogized the meaning of "knowingly!! 

as set forth in U.S. v. ., 92 F. Supp. 777 (D.S.C. 

1950), to section 109 of the Coal Act. Although Briar involved 

the liquidated damages provision of the Walsh-Healey Public Contracts 

Act, 41 U.S.C. §35 et~· (1976), and not the imposition of a civil 

penalty as is involved here, that Act, like the Coal Act, has certain 

humanitarian objectives; under it Congress used the government's purchasing power to raise labor standards. 92 F. Supp. at 779. Consequently, we believe the court's reasoning is equally applicable to the 

statutory requirement at issue here. In Sweet Briar the court stated: 

'[K]nowingly,' as used in the Act, does not have any meaning of bad 

faith or evil purpose or criminal intent. Its meaning is rather 

that used in contract law, where it means knowing or having reason 

to know. A person has reason to know when he has such information 

as woula lead a person exercising reasonable care to acquire 

knowledge of the fact in question or to infer its existence. 

92 F. Supp. at 780. We believe this interpretation is consistent with 

both the statutory language and the remedial intent of the Coal Act. If 

a person in a position to protect employee safety and health fails to 

act on the basis of information that gives him or reason to 

know of the existence of a violative condition, he has acted knowingly 

and in a manner contrary to the remedial nature of the statute. 12/ 

Did the judge err in concluding that Richardson 

knowingly permitted an upsafe machine to remain in service? 

found that Richardson "knew or should have known that the 

1260 was unsafe," and did not remove it from service immediately. 

Therefore, "Richardson, as agent of ... [Peabody] corporation, knowingly 

authorized, ordered or carried out ... [a] violation 30 CFR §77.404(a)]." 

The j stated that "[i]t was the kind of situation which would raise 

a person's suspicion, particularly a mechanic with considerable exl1erience, 

that bad was happening which could well personnel." 

He concluded that Richardson "had such information as would lead a 

person exercising reasonable care to acquire knowledge of the facts in 

question or to infer [their] existence," as well as "considerable direct 

knowledge about a potentially situation." 

_12/ We note that the judge's 

arose only in terms of evalua 

section 109(a)(l) of the Coal 

Act. 

discussion of Richardson's 

the p~nalty assessment 

Act, now section llO(a)(l) 

lG 

"ne~ligence" 

criteria of 

of the Mine 
Richardson submits that even if the judge's finding were properly 

based on a "should have known" test, it erroneously imputed.to him 

knowledge of the machine's unsafeness, in view of his testimony that he 

was unaware of the modified intermediate boom suspension system and his 

lack of control over the purchase and installation of the system. 

Richardson contends:.further that his knowledge must be determined as of 

the time before the accident, and that no evidence demonstrates that he 

had any reason to consider the dragline unsafe. 

We agree with Richardson that his knowledge must be determined as 

of the time of the violation at issue on review, before the 

machine finally was removed from service and before the fatal accident 

occurred. We conclude, however, that the record overwhelmingly supports 

the judge's finding that Richardson knew or should have known the 

machine was unsafe while it was in service. Although Richardson 

emphasizes his ignorance of the modified intermediate boom suspension 

system, the judge did not base his finding as to Richardson's knowledge 

on the presence or absence of that system, nor do we. The judge 

observed that, even without knowledge of the suspension system and the 

protection it would have provided, Richardson had reason to believe the 

machine was unsafe. The judge relied for the most part on the same 

evidence recited in our previous discussion establishing the unsafeness 

of the dragline. We find that this evidence also establishes that 

Richardson, in view of his position as day shift master mechanic with 

general supervisory authority over the dragline, knew or had reason to 

know that the dragline was unsafe and should have removed it from 

service. 13/ 

Accordingly, we affirm the administrative law judge's conclusion 

that Richardson knowingly violated the mandatory safety standard at 30 

CFR §77 .404(a). 

Richardson also asserts he cannot be held responsible for 

Peabody's failure to comply with the manufacturer's recommended equipment modifications because he had no control over the purchase or 

modification of equipment. This argument misses the mark. The violation at issue involves only the question of whether Richardson knowingly 

permitted an unsafe machine to remain in service. There was undisputed 

testimony, including admissions by Richardson, chat anyone, including 

Richardson, could remove from service a machine considered to be unsafe. 

This is the duty imposed by the standard. Richardson's authority to 

order the modified suspension system or other equipment is irrelevant. 

17 
Is section 109(c) of the Coal Act unconstitutional 

because it imooses liability onlv on corporate agents? 

The administrative law judge rejected as a ground for dismissal 

Richardson's claim that section 109(c) is unconstitutional because it 

denies him protection of law. The j ruled that resolution of 

challenges to the constitutionality of a provision of the Act is 

reserved to the courts. 

Before us Richardson reiterates his that section 109(c) of 

the Coal Act violates his constitutional r equal protection 

because it ects him to a penalty solely because his employer does 

business in a corporate form. He asserts that such a distinction is 

illogical and bears no rational relation to the objective of mine 

safety or to any difference between a corporate or other form of 

business. The Secretary argues that the j correctly held that the 

Commission lacks the authority to decide the constitutional question 

raised. that the Commission has such power, the Secretary 

argues that section 109(c) does not deny protection to corporate 

agents because the classification in that section has a rational basis. 

The threshold question we must decide is whether we have the power 

to determine the constitutionality of a provision of the Act. We 

acknowledge the traditional view that administrative agencies lack the 

power to decide whether legislation is constitutional because such 

authority is reserved to the courts. 14/ K. Davis, 3 Administrative 

Law §20.04, at 74 (1967 ed). However, we find that view and 

its underlying rationale deficient with to the situation here 

presented. See Southern Pacific Transp. Co; v. Public Utilities Commission, 18 Cal.2d 308, 556 P.2d 289 (1976); see "The Authority of 

Administrative Agencies to Consider the Constitutionality of Statutes," 

90 . L. Rev. 1682 (1977); and Adjudication of 

Constitutional Questions; Confusion in Florida Law and A Dying Misconception in Federal Law," 33 U. Miami L. . 527 (1979). 

We note first that the Mine Act that this Commission, 

rather than the United States district courts, has primary adjudicative 

jurisdiction over disputes arising under the Act. 30 U.S.C. §823(d). 

Congress authorized the Commission to decide independently questions of 

fact, law and policy. Id.; see also, v. Helen Mining Co., 

1 Fr1SHRC 1796, 1800-1802 (1979), ~· for Nos. 79-2518, 

79-2537 (D.C. Cir., December 19 and 21, 197 

Many of the cases generally cited for the proposition that an 

administrative agency may not decide constitutional questions stop short 

of an absolute bar to ag~ncy determination, or do so in conditional 

language. "Adjudication of ... constitutionality ... has generally been 

thought beyond the jurisdiction of administrative a~encies." Oestereich 

v. Selective Service Local Bd. No. 11, 393 U.S. 233, 242 (1968)(J. 

Harlan, concurring) (emphasis added). See v. Robison, 415 U.S. 

361, 368 (1974). 

18 
that authority is that this Commission, whose members are sworn to 

upho1d the Constitution, must make its determinations in accordance with 

the Constitution. Every branch of the government is obligated to uphold 

the Constitution, and "a law repugnant to the Constitution is void." 

Marbury v. Madison, 5 U.S. 368, 391 (I Cranch 137)(1803). We believe 

that we cannot properly fulfill our duty to interpret the law and to 

apply it constitutionally, without at the same time deciding whether the 

law or a portion of it conforms to the Constitution. 

We have examined with great care, and have found inapplicable to 

us, the arguments advanced for denying administrative agencies the power 

to resolve constitutional questions. The conventional view is that only 

Article III courts, insulated from the influences of both the executive 

and legislative branches, possess the independence necessary to render 

an impartial decision on a constitutional question. We note, 

however, that this reasoning is generally applied to administrative 

agencies significantly different from this Commission, in that they 

often have combined regulatory and adjudicatory responsibilities. 

Because we do not have these combined functions, but are vested with 

solely adjudicative responsibilities, we are not susceptible to any 

inherent bias believed to exist in agencies that simultaneously 

regulate, prosecute and adjudicate. 16/ 

We are insulated also from pressures that some fear might be 

exerted on adjudicatory components that are one part of a larger 

executive department. The Mine Act established the Commission as an 

independent administrative adjudicatory agency. Commission members are 

appointed by the President with the advice and consent of the Senate. 

Members are selected from persons "who by reason of training, education, 

or experience are qualified to carry out the functions" of the office. 

Members are appointed for fixed terms of six years and can be removed 

from office only for "inefficiency, neglect of duty, or malfeasance in 

office". 30 U.S.C. §823. We believe that this independence assures the 

necessary impartiality for deciding constitutional questions. 

E.g., J. Monaghan, "First Amendment Due Process, 11 83 Harv. 

==-=-:_:_.-=-:__::.:.;:;..;_;;_ 

• 523 (1970). 

16/ The Board of Tax Appeals (BTA) was established in 1924 as an independent adjudicatory agency in the executive branch, and retained that 

characteristic after being renamed the Tax Court in 1942. Old Colony 

Trust Co. v. Commissioner, 279 U.S. 716, 721, 725 (1929). 90 Harv. L. 

Rev. 1682, 1687, n. 29. Section 951 of the 1969 Tax Reform Act, 26 

U.S.C~ §lOl(a) et seq., converted the Tax Court to an Article I legislative court, but its prior designation as an independent adjudicatory 

agency in the executive branch did not change. Although the BTA 

initially divided sharply over its authority to decide constitutional 

questions (Cappellini v. Commissioner, 14 B.T.A. 1269, 1293 (1929)), it 

later found that it had such power and has since exercised it "with the 

apparent acquiescence of reviewing courts." 90 Harv. L. Rev., supra, at 

1687, n. 29. 

The Occupational Safety and Health Review Commission, an independent 

adjudicatory agency with functions analo~ous to this Commission's, has 

stated that it has "no power to declare any portion of its enabling 

legislation unconstitutional.'; Buckeye Industries, Inc., 3 BNA OSHC 

1837, 1975-1976 CCH OSHD ,120,239 (No. 8454, 1975). However, because the 

OSHRC did not discuss the underlying rationale for its conclusion, we 

find little that is instructive in its decision. 

19 
In addition to our institutional independence, the judicial nature 

of Commission proceedings adequately preserves due process. Our procedures 

are largely governed by the Administrative Procedure Act, 5 U.S.C. §551 

et~.; notice and an opportunity to be heard are provided; parties may 

retain counsel; and hearings culminate in reasoned opinions rendered by 

experienced administrative law judges. These decisions may then be 

reviewed by Presidentially-appointed Commissioners who possess the 

requisite competence for exercising their adjudicatory powers. 30 

U.S.C. §823. Due process is protected further because aggrieved parties 

may appeal an adverse Commission decision to a United States court of 

appeals. 30 U.S.C. §816. Therefore, because of our "essentially 

judicial procedures and experience," we avoid the potential for bias 

that would undermine our ability to decide constitutional issues. 

Aircraft and Diesel Corp. v. Hirsch, 331 U.S. 752, 769 (1947); Dobson v. 

Commissioner, 320 U.S. 489 (1943). We believe that the judicial nature 

of our proceedings assures parties of reasoned consideration of their 

arguments and provides us with the institutional competence to decide 

constitutional issues, further distinguishing us from other agencies 

denied this authority by the courts. See Oestereich, 393 U.S. at 242 

{J. Harlan, concurring); cf. Glines v. Wade, 586 F.2d 675, 676 (9th Cir. 

1978). - --

Other reasons support our conclusion as well. It is generally 

agreed that, because of its expertise, an administrative agency may 

entertain constitutional issues at least to develop a factual record and 

clarify the issues for ultimate disposition by a reviewing court. An 

administrative agency may also hear constitutional issues where it is 

possible that the administrative proceeding will leave no remnant of the 

constitutional question. Weinberger v. Salfi, 422 U.S. 749, 765 (1975); 

Public Utilities Commission of California v. U.S., 355 U.S. 534, 539 

(1958); Far East Conference v. U.S., 342 U.S. 570, 574 (1952). It has 

also been stated that an agency may resolve constitutional questions 

"not by reviewing the constitutionality df its statute but by interpreting the statute and by applying constitutional principles to specific 

facts." Babcock and Wilcox v. Secretary of Labor and Occupational 

Safety and Health Review Commission, 610 F.2d 1128, 1139 (3rd Cir. 

1979). We reject as undesirable and artificial, however, the conventional view that an agency may only compile a factual record relevant to 

a constitutional· issue or apply constitutional principles to particular 

facts, but may not pass judgment on the ultimate question of the constitutionality of the organic act or portions of it. As a solely 

adjudicatory agency the Commission regularly considers myriad legal 

questions, many with substantial constitutional components. We decide 

due process claims and consider constitutional objections to rules, 

standards, or other administrative actions. It is our belief that the 

judicial role of the Commission, admittedly adequate for entertaining 

various constitutional objections to agency actions, also appropriately 

permits the Commission to entertain constitutional objections to the 

underlying statute, especially where, as here, review in a United States 

court of appeals is available. 

Finally, there are also several important policy considerations 

supporting our authority to decide constitutional questions. In establishing the Commission, Congress intended that the Commission have primary 

'jurisdiction over disputes arising under the Mine Act. The ability to 

pass upon constitutional challenges is a vital step in the resolution of 

20 
many of those disputes, and is consistent with Congress' expressed 

preference for administrative adjudication under the Act. Such administrative review, we believe, will foster efficient and expeditious 

resolution of constitutional issues, as it does with non-constitutional 

questions, reduc costs of litigation to the parties as well as reducing 

delays in the ultimate disposition of the cases in which such questions 

arise. We believe also that courts will benefit from the Commission's 

action in compiling a complete factual record and in analyzing the 

constitutional question presented within the context of that record and 

the statute that the Commission interprets on a daily basis. 

In sum, we are persuaded that there is no valid reason for our 

refusing to address the constitutional challenge raised against the 

enforcement of the statute in this case. Therefore, we now turn to an 

examination of Richardson's equal protection claim. 

The first inquiry made in examining a claimed denial of equal protection is whether a suspect class or a fundamental r is involved. 

If the regulation burdens a suspect classification or a fundamental 

right, a strict scrutiny test is applied. If a suspect classification 

or a fundamental right is not involved, a rational relationship test 

applies. Vance v. Bradley, 440 U.S. 93 (1979); 

Retirement v·. 427 U.S. 307 (1976). 

Both tests require analysis of the purpose of the legislation and 

the means the legislature has chosen to accomplish that purpose. Where 

the rational relationship test is applied, the law is presumed to be 

valid. The challenging party has the burden of proving that there is no 

rational reason for the means the legislature has used to reach its 

purpose or end. See v. Natural Carbonic Gas Co., 220 U.S. 61 

(1911), and Williamson v. Lee Optical, 3Mi U.S. 483 (1955). The fact 

that some legislation must, by its nature, classify people or activities 

is recognized by the Supreme Court. s Board o 

v. supra. The question is whether the means are rationally 

related to the ends. 

Under the strict scrutiny test, once it is established that a. 

suspect class or a fundamental right is adversely affected by a classificai::ion, the burden shifts to the government to show a "compellinq; 

state interest" to justify the le~islation. The government must also 

prove that, not only is there a rational relationship between the 

purpose of the law and the means by which it accomplished, but that 

the means are necessary to the accomplishment of those ends. A court 

must look to see whether there actually is a less restrictive alternative 

to the ture's choice. McLauqhlin v. 379 U.S. 184 

(1964); 413 U.S. 717 (1973); Casualty 

and Surety Co., 406 U.S. 164 (1972). 

Persons classified according to the business form of their employer, 

, corporate agents versus non-·corporate agents, do not fall within 

any of the suspect classifications. Nor does imposing liability for 

21 
payment of civil penalties infringe on fundamental rights. 17/ As the 

Supreme Court observed in Murgia: "[W]e have expressly stated that a 

standard less than strict scrutiny 'has consistently been applied to .•• 

legislation restricting the availability of employment opportunities.'" 

427 U.S. at 313. Thus, Richardson must carry the burden of proving that 

the classification in section 109(c) is not rationally related to the 

purpose of the Act. 

To assist in our analysis of the denial of equal protection claimed 

in this case, we turn to a discussion of six Supreme Court cases applying 

the rational relationship test. One of the more recent equal protection 

cases is Massachusetts Board of Retirement v. Murgia, supra. There the 

Court was faced with an equal protection challenge to a Massachusetts 

statute requiring that uniformed state police retire at age 50. Despite 

evidence that many persons over the age of 50 continue to be physically 

and mentally capable of meeting the rigorous demands of their profession, 

the Court found that the statute is "rationally related to furthering a 

legitimate state interest." 427 U.S. at 312. The Court conceded that 

"the state perhaps has not chosen the best means to accomplish" its 

purpose of protecting "the public by assuring physical preparedness of 

its uniformed police." 427 U.S. at 314, 316. In applying the rational 

relationship test, the Court stated: 

This inquiry employs a relatively relaxed standard 

reflecting the Court's awareness that the drawing 

of lines that create distinctions is peculiarly 

a legislative task and an unavoidable one. Perfection in making the necessary classifications 

is neither possible nor necessary. [citation 

omitted]. Such action by a legislature is presumed to be valid. 

427 U.S. at 314. 

11/ The Court provided the following list of fundamental rights and 

suspect classes in Massachusetts Board of Retirement v. Murgia, supra, 

427 U.S. at 312 n.3, 4: The fundamental rights:~., Roe v. Wade, 410 

U.S. 113 (1973) (right of a uniquely private nature); Bullock v. Carter, 

405 U.S. 134 (1972) (right to vote); Shapiro v. Thomoson, 394 U.S. 618 

(1969) (right to interstate travel); Williams v. Rhodes, 393 U.S. 23 

(1968) (rights guaranteed by the First Amendment); Skinner v. 

ex rel. Williamson, 316 U.S. 535 (1942) (right to procreate). The 

suspect classes: !.:_g_., Graham v. Richardson, 403 U.S. 365 (1971) 

(alienage); McLaughlin v. Florida, 379 U.S. 184 (1964) (race); Oyama v. 

California, 332 U.S. 633 (1948)(ancestry). 

There is also a very limited middle ground: gender and age. The 

Court has shied away from labelling these classifications as being 

suspect, but in most gender cases and some age cases the Court has 

imposed a 11 substantial relationship" test, rather than either of the two 

standard tests: rational relationship or strict scrutiny. See Califano 

v. Webster, 430 U.S. 314 (1977)(age); Craig v. Boren, 429 u.S:-190 

(1976)(sex); and Personnel Administrator of Mass. v. Feeney, 442 U.S. 

256 (1979). \ 

22 
Smith v. Cahoon, 283 U.S. 553 (1931), concerned the imposition of 

certain licensing requirements upon connnercial carriers, excluding 

private carriers a.nd commercial carriers transporting agricultural and 

dairy products. The statutes in question carried criminal sanctions. 

The Court held that, although the state has "broad discretion in 

classification in the exercise of its power of regulation, ••• the 

constitutional guaranty of equal protection of the laws is interposed 

against discriminations that are entirely arbitrary." 283 U.S. at 566-

567. The classifications drawn in the laws in question were found to be 

so totally arbitrary in their distinctions as to be violative of equal 

protection. 

Colgate v. 296 U.S. 404 (1935), concerned a tax scheme that 

imposed a higher tax on dividends derived from corporations outside the 

state then on dividends derived from resident corporations. This portion 

of the tax was found to be constitutional because the Court found a 

"fair and reasonable" reason for the differentiation. Another portion 

of the scheme taxed interest from interest-bearing securities, but 

exempted interest received on account of money loaned within the state, 

while taxing income derived from similar loans made outside the state. 

This portion of the tax was found to be unconstitutional. The Court 

found that the tax was not rationally related to the purpose of the 

Act--raising revenue. It noted that if the legislation had gone further 

and required that the income from in-state loans be invested within the 

state as well, then it would have had a purpose: increasing the actual 

wealth within the state. The Court declined to interpret the provision 

in this manner, how-ever, "for that would be to amend [the provision] and 

not to construe it." 296 U.S. at 424. Thus, the Court did not reject 

the entire tax scheme, but rather invalidated only that portion for 

which it was unable to find a rational explanation. 

In Liggett Co. v. Lee, 288 U.S. 517 (1933), a Florida tax statute 

was challenged on equal protection grounds. The purpose of the statute 

was to require the licensing of all stores. The act established a 

licensing fee on a per store basis, but the amount of the per store fee 

increased if the owner operated stores in more than one county. The 

Court was unable to find a rational reason for increasing the tax where 

an owner had a store in more than one county. The Court found that the 

statute was not aimed solely at large corporate chains, which frequently 

owned stores in more than one county, but that it was aimed at all store 

owners. The Court stated: 

The lature of Florida has declared the purpose 

and object of the statute to be to tax every store owner 

and operator, and we should not go behind that declaration 

and attribute to the lawmakers some other ulterior design. 

Corporations are as much entitled to the equal protection 

of the laws guaranteed by the Fourteenth Amendment as are 

natural persons. [Citations omitted.] Unequal treatment 

and arbitrary discrimination as between corporations and 

natural persons, or between different corporations, inconsistent with the declared object of the legislation, cannot 

be justified by the assumption that a different classification 

for a wholly different purpose might be valid. 

23 
Those provisions of §5 which increase the tax if 

the owner's stores are located in more than one county 

are unreasonable and arbitrary, and violate the guaranties 

of the Fourteenth Amendment. 288 U.S. at 536. 

Williamson v. Lee Optical, 348 U.S. 483 (1955), may be the seminal 

case concerning the Supreme Court's view of the requirements of equal 

prote~tion and due process. In Williamson the Court upheld an Oklahoma 

statute that forbade opticians from filling or duplicating eye glass 

lenses without a prescription from an opthamologist or optometrist. The 

Court stated 11 that regulation of economic interest will violate the 

principle of equal protection if such regulation fails to bear a 

rational relation to the objective sought. 11 However, the Court went on 

to find the challenged statute constitutional: 

The problem of legislative classification is a perennial 

one, admitting of no doctrinaire definition. Evils in 

the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. [Citation omitted.] Or the reform may 

take one step at a time, addressing itself to the phase 

of the problem which seems most acute to the legislative 

mind. [Citation omitted.] The legislature may select one 

phase of one field and apply a remedy there, neglecting 

the others. 

348 U.S. at 488-89. The Court speculated on various rationales the 

legislature might have had in mind when enacting the legislation. From 

these speculations, the Court concluded that "[w]e cannot say that the 

regulation has no rational relation to that objective and therefore is 

beyond constitutional bounds." 348 U.S. at 491. 

A final example of the Supreme Court's rational relationship 

analysis is Idaho Department of Employment v. Smith, 434 U.S. 100 

(1977). The statute involved precluded any person who attended school 

during the day from receiving unemployment benefits. The classification 

challenged was night students versus day students. The Court stated: 

The holding below misconstrues the requirements of 

the Equal Protection Clause in the field of social welfare and economics. This Court has consistently deferred 

to legislative determinations concerning the desirability 

of statutory classifications affecting the regulation of 

economic activity and the distribution of economic benefits. 11 If the classification has some 'reasonable basis,' it does 

not offend the Constitution simply because the classification 

'is not made with mathematical nicety or because in practice 

24 
it results in some inequality.'" v. Williams, 

397 U.S. 471,485 (1970), quoting Lindsley v. Natural 

Carbonic Gas Co., 220 U.S. 61, 78 (1911). See also 

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 

(1976); Mathews v. De Castro, 429 U.S. 181 (1976); 

Jefferson v. Hacknev, 406 U.S. 535 (1972). The legislative 

classification at issue here passes this test. It was 

surely rational for the Idaho Legislature to conclude 

that daytime employment is far more plentiful than nighttime work and, consequently, that attending school during 

daytime hours imposes a greater restriction upon obtaining 

fulltime employment than does attending school at night .... 

The fact that the classification is imperfect and that the 

availability of some students desiring full-time employment 

may not be substantially impaired by their attendance at 

daytime classes does not, under the cases cited supra, 

render the statute invalid under the United States 

Constitution. 

434 U.S. at 101-102. Thus, despite the imperfection in the classification, the legislation was upheld because the Court found a rational 

reason to support the classification. 

Richardson here argues that the classification of agents according 

to the business form of their employers cannot withstand constitutional 

challenge. Applying the rational relationship test we have examined 

whether the classification established by Congress in section 109(c) is 

rationally related to the accomplishment of its intended purpose, As 

discussed below, we find a rational basis for the classification in 

section 109(c) and reject Richardson's challenge. 

The expressed fundamental purpose of the 1969 Coal Act is to ttprotect 

the health and safety of the Nation's coal miners." 30 U.S.C. §801 (1976), 

Section 109(c) is intended to provide one vehicle for accomplishing this 

purpose by holding corporate agents who commit knowing violations 

individually liable. We believe that imposing personal liability on 

corporate agents furthers the overall goal of the Act by providing an 

additional deterrent to many of those individuals in a position to 

achieve compliance. That this was the intent of Congress in enacting 

section 109{c) is clear. As stated in the legislative history concerning this section: 

The committee expended considerable time in discussing the 

role of an agent of a corporate operator and the extent to 

which he should be penalized and punished for his violations 

of the act. At one point, it was agreed to hold the corporate operator responsible for any fine levied against an 

agent. It was ultimately decided to let the agent stand 

on his own and be personally responsible for any penalties 

or punishment meted out to him. 

25 
The committee zes, however, the awkward situation of 

the agent with respect to the act and his supervisor, the 

corporate operator, and his position somewhere between the 

it did not want to break the chain of responsibility for 

such violations after penetrating the corporate shield. 

The committee does not, however, intend that the 

should bear the brunt of corporate violations. It is presumed that the is often acting with some higher 

authority when he chooses to violate a health 

or safety standard or any other provision of the act, or 

worse, when he knowingly violates or fails or refuses to 

comply with an imminent danger withdrawal order or any 

final decision on any other order. 

Legis. Hist. at 1041-1042 (Emphasis added.) 

Furthermore, as stated by the Supreme Court in Lindsley v. Natural 

Carbonic Gas Co., "when the classification ••• is called into 

question, if any state of facts reasonably can be conceived that would 

sustain it, the existence of that state of facts at the time the law was 

enacted can be assumed". 220 U.S. at 78. The Secretary has proffered a 

further explanation in support of the rationality of section 109(c). In 

his brief the stated: 

Congress was obviously aware that it is often difficult 

to penetrate the corporate decision-making processes of 

large corporate mining operations and determine t~e precise involvement of individual officers, directors, and 

agents in any given situation. In contrast, when a mine 

is run by an individual partnership, or association, 

generally the operation is smaller and the individual, 

partner, or associate is involved in the day-to-day 

operation of the mine and thus is chargeable as a mine 

operator himself under the Act. 

The rational basis for the classification in [section 

109(c) of the Coal Act] is the Congressional acknowledgement 

of the for piercing the shield and 

placing the blame directly on the individuals responsible 

for the violations. 

Also, as stated by counsel for the Secre at oral argument: 

One of the problems which concern[ed] the Congress when 

they considered the Coal Act was that while operators 

who conducted their business in the form of a partnership or sole proprietorship were directly and personally 

liable for violations of the Act, the decision makers in 

a mine conducting business within a corporate structure 

20 
were insulated from such personal liability •••• Congress also knew that a high proportion of the nation's 

coal mines are operated by corporate operators. 

In fact, as we noted in our brief, the top fifteen 

corporate operators of coal in this country produce 

forty percent of all the coal mined in the United 

States. 

To remedy this inequity, Congress chose to make 

corporate operators agents, as well as directors and 

officers, liable for knowing violations of the Act •... 

We find that the explanations set forth in the legislative history 

and by the Secretary provide rational reasons for the classification 

made in section 109(c). We recognize that much of the reasoning for 

placing individual liability on agents of corporate operators would 

likewise be applicable to imposing similar liability on agents of noncorpora te operators. Such agents are also in a position to secure 

compliance with the Act's requirements to assure the safety of miners, 

but unlike their corporate counterparts they are not subject to the 

threat of direct enforcement against them. As noted by the Supreme 

Court in v. 397 U.S. 471, 485 (1970), 

Lindsley v. Natural Carbonic Gas Co., however: 

If the classification has some 'reasonable basis', it does 

not offend the Constitution simply because the classification 'is not made with mathematical nicety or because 

in practice it results in some inequality'. 

As also recognized by the Supreme Court, Congress "may take one step at 

a time addressing itself to the phase of the problem which seems most 

acute to the legislative mind". Williamson v. Lee Optical, supra, 348 

U.S. at 488-489. Finally, as cogently stated by the Supreme Court in 

Vance v. supra, where a statutory distinction does not burden 

a suspect group or a fundamental interest, 

••. courts are quite reluctant to overturn governmental 

action on the ground that it denies equal protection of 

the laws. The Constitution presumes that, absent some 

reason to infer antipathy, even improvident decisions 

will eventually be rectified by the democratic process 

and that judicial intervention is generally unwarranted 

no matter how unwisely we may think a political branch 

has acted. Thus, we will not overturn such a statute 

unless the varying treatment of different groups or 

persons is so unrelated to the achievement of any 

combination of legitimate purposes that we can only 

conclude that the legislature's actions were irrational. 

440 U.S. at 96-97 (footnotes omitted). 

27 
Applying ~hese principles we find that Congress' imposition of 

liability on corporate agencs is not totally arbitrary but has a rational 

basis, and therefore conclude that the classification in section 109(c) 

does not offend the Constitution. 

Accordi:1gly, we affirm the judge's conclusion that Richardson 

violated section 109(c) of the Coal Act by 

equipment in an unsafe condition 

the $500 penalty assessed the 

A. E. Lawson,fCo .issioner 

. . ~'- I " ·'\ 

\j \I ' ' I \ ) 'j·• ,, I ' ' I 1' ti ".l . .,, 

\l.'~1 i_a_l· \v, .. 'J 1,(.1 / 1,.u..t..-\..1· 

R. V. Bad~ley, Chairman, 

Marian Pearl~~Nease, Commissioner 

Concurring In Part And Ilj.ssenting In Part. 

I must dissent from that part of the decision that upholds the 

constitutionality of section 109(c) of the Coal Act. I do so because I 

can perceive no rational basis for singling out the of corporate 

operators for violations of the Act and excusing other a~ents for the 

same acts. The purpose of the section is to penalize individuals 

responsible for the of the miners who knowingly fail in that 

res?onsibility. I fail to see how mine health and is advanced 

when agents who are guilty of some grievous act are allowed to escape 

liability solely because work for a partnership or sole proprietorship. 

In this re~ard, the Secretary's comments quoted on pages 19-20 of the 

ority are wide of the mark. The question is not whether the liability 

falls directly upon the partnership or sole proprietorship but whether 

it can be placed upon the of those entities. In the case of a 

corporation, both the ion and those individuals ennumerated in 

section 109(c), are subject to the assessment of a civil penalty. This 

is the case before us. However, under the same circumstances, the agent 

of a non-corporate operator would escape liability. Accordingly, I find 

no rational basis for the exclusion if the purpose of the section is to 

responsibility where it properly belongs. In my opinion not only 

is the classification but exculpatory. The exoneration of one 

class of offenders under the Act provides little support for the rational 

basis test. 

Richard V. Backley, Chairman ~ 

28 
D 

Rees 

Sam Jarvis, 

Jarvis, 

0 1 Bryan Court 

Esq. 

& Kinney 

Building 

P.O. Box 569 

Greenville, KY 42345 

J. Philip Smith, Esq. 

MSHA Trials Branch 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Kenny Richardson BA~B 78-600-P 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SIGLER MINING, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 27, 1981 

Docket No. WEVA 80-519 

DECISION 

We directed the judge's order of default against Sigler Mining for 

review sua sponte on December 4, 1980. 30 U.S.C. §823(J)(2)(B) (Supp. 

III 1979). The Secretary had filed a petition for assessment of civil 

penalties on August 18, 1980. On October 6, an order to show cause was 

issued requiring Sigler Mining to file an answer within 15 days or show 

good reason for its failure to do so. Sigler Mining responded on 

October 18 by a letter to the judge stating that due to poor market 

conditions and recent resumption of operations, it did not have funds to 

pay the penalty. The judge assigned to the case th,en issued an order 

declaring the operator to be in default, and assessing the proposed 

penalty of $1,174. The order noted that Commission Rule 28, 29 C.F.R. 

§2700.28 (1979), requires that answers include a statement of why the 

violations are contested and whether a hearing is requested. The judge 

found that the operator's letter to the judge failed to comply with 

these requirements. We disagree. Sigler Mining filed pro se a timely 

response to the show cause order alleging an inability to pay the 

penalties. This response at least brings into issue one of the six 

criteria to be considered in assessing penalties under the Act--effect 

of the size of the penalty on the operator's ability to continue in 

business. 30 U.S.C. §820(i)(Supp. III 1979). As we have indicated in 

the past, a default judgment is a harsh remedy not suitable when a party 

has substantially complied with a show cause order, and has not 

demonstrated bad faith. Coaltrain Corp., 1 FMSHRC 1831 (1979); BB&W 

Coal Co. Inc., 1 FMSHRC 467 (1979). We express no view, of course;-as 

to the merits of the operator's allegations, or as to the effect, if 

true, on any penalty ultimately assessed. 

Accordingly, the order is vacated and the case is remanded. 

A. E. L w n, Commissioner 

\\.i~~ui. ~Qi}~Q1Hf),c~ 1\llcu..o 

Marian Pearlman Nease, Commissioner 

30 81-1-17 
Distribution 

Cynthia Attwood, Esq. 

Deputy Associate Solicitor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Leonard L. Sigler, President 

Sigler Mining Company, Inc. 

Jodie, West Virginia 26674 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety and Health Review 

Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

31 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 28, 1981 

LOCAL UNION NO. 6843, DISTRICT 28, 

UNITED MINE WORKERS OF AMERICA 

v. 

WILLIAMSON SHAFT CONTRACTING 

COHPk'TY 

DECISION 

Docket No. VA 80-17-C 

This proceeding arises under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. §801 (Supp. III 1979). The United Mine 

Workers of America applied for compensation for 13 miners pursuant to 

section 111 of the Act. 1_/ The company moved to dismiss the application 

for failure to state a claim upon which relief could be granted. The 

administrative law judge granted the motion. We affirm the judge. 

In its application the union alleged the following: that an MSHA 

inspector visited the mine to conduct a roof-control inspection; that 

during the inspection he found that a majority of the roof bolts used to 

support the roof in a particular area lacked a proper amount of torque; 

that the inspector advised the company the only work which could be done 

in the area was to support the roof: and that as a result of this statement normal mining operations halted and 13 miners were idled. The 

union asserted that the inspector's instruction amounted to an oral 

imminent danger order of withdrawal under section 107(a) of the Act. 1_/ 

Section 111 of the Act provides: 

If a ... mine is closed by an order issued under section 103, 

section 104, or section 107, all miners working during the shift 

when such order was issued who are idled by such order shall be 

entitled, regardless of the result of any review of such order, to 

full compensation by the operator at their regular rates of pay for 

the period they are idled, but for not nore than the balance of 

such shift. If such order is not terminated prior to the next 

working shift, all miners on that shift who are idled by such order 

shall be entitled to full compensation by the operator at their 

regular rates of pay for the period they are idled, but for not 

more than four hours of such shift •.•. 

]:_/ Section 107(a) states: 

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 imm..i..nent 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 withdravm from, 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 .•.. 

81-1-19 
The judge noted that section 107 specific~lly requires imminent 

danger orders to be written. ]_/ The judge found that under the circumstances alleged in the application, the only type of withdrawal order 

the inspector could have issued was one for imminent danger and that he 

clearly did not issue one. Without an order upon which to base the compensation claim, the judge concluded the union's application was fatally 

defective. 

The union would have us find the judge erred. It argues the 

requirement of the Act that an innninent danger order be in writing can 

not be relied upon to defeat a compensation claim. We disagree. 

The mandate of section 107(d) that an imminent danger order be 

written is explicit. It reflects congressional concern that an operator 

be adequately advised of the imminent danger so that corrective action 

may be taken. !!._/ In so doing it offers protection to an operator's 

property and to a miner's life and limb. Moreover, it offers all 

parties procedural protection in any subsequent litigation by placing 

them on notice as to the conditions which constitute the alleged imminent 

danger and the conditions under which the order arose. Presumably this 

el~minates much of the speculation and dispute an oral order would 

almost surely engender. This is not to say that a claim for compensation may never be based upon an oral finding of imminent danger. 

There may well be extraordinary circumstances wherein an inspector who 

makes such a finding fails in or is prevented by subsequent events from 

confirming it in a written order of withdrawal. However, no such special 

circumstances were ple~ded by the union. The mere assertion that an 

inspector's statements are tantamount to an oral order without assertions 

that he intended to issue an imminent danger order and as to why the 

inspector was prevented from reducing it to writing will not support a 

claim. Accordingly, the judge's order is affirmed. 

Section 107 ) state: 

MarianlPear man Nease, 

(c) Orders issued pursuant to subsec i (a) shall contain a 

detailed description of the conditions or practices which cause and 

constitute an imminent danger and a description of the area of the 

coal or other mine from which persons must be withdrawn and prohibited from entering. 

(d) Each finding and order issued under this section .•. shall 

be in writing, and shall be signed by the person making them. 

!!_I S. Rep. No. 95-181, 95th Cong., 1st Sess. 41 (1977) reprinted in 

Senate Subconnnittee on Labor, Committee on Human Resources, 95th Cong., 

2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977 at 626 (1978). 

33 
Distribution 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

William H. Howe, Esq. 

Timothy J. Parsons, Esq. 

Loomis, Owen, Fellman & Howe 

2020 K Street, N.W. 

Washington, D.C. 20005 

Cynthia L. Attwood, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charles C. Moore, Jr. 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

Falls Church, Virginia 22041 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY A...>\!D HEAL TH 

ADMINISTRATION (MSHA) 

v. 

EL PASO ROCK QU1\ 'R.RIES, ... INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON. D.C. 20006 

January 23, 1981 

Docket Nos. DENV 79-139-PM 

DENV 79-140-PH 

DEN\' 79-176-PM 

DECISION 

This is a civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (Supp. III 1979). 

Mine Safety and Health Administration (NSHA) inspectors issued citations 

under section 104(a) of the Act to El Paso Rock Quarries, Inc., for 

alleged violations of mandatory safety standards. El Paso contested the 

citations and an evidentiary hearing was held. The administrative law 

judge held in part for El Paso vacating several of the citations, and in 

part for the Secretary finding that certain alleged violations occurred 

and assessing pena_lties with respect to those violations. Both El Paso 

and the Secretary sought Commission review of portions of the judge's 

decision adverse to them. 1/ The Commission granted, in part, each of 

the petitions for discretionary review. 2/ For the reasons that appear 

below, we affirm in part, and reverse and remand in part. ]./ 

Citation No. 159658 

This citation involved an alleged violation of 30 CFR §56.9-22. 4/ 

The inspector issued the citation because an elevated roadway that provided access to the top of the quarry wall was not equipped with either 

berms or guards along its outer edges. The roadway was elevated three 

hundred feet on one side and forty to fifty feet on the other side. 

Although the roadway was not used by El Paso to haul rocks, it was used 

to haul explosives and to provide access to areas which were to be 

drilled and blasted. 

1_/ El Paso sought review of the judge's findings of violation only. 

It did not seek review of the penalties assessed. 

lJ We directed review of seven ci~ations that the judge vacated, and 

of three citations that the judge upheld; 

3/ The citations are treated separately, except where a common 

question of law or fact is presented. 

4/ Section 56.9-22 provides: 

- Berms or guards shall be provided on the outer bank of 

elevated roadvays. 

35 

81-1-20 
The judge vacated the citation on the ground that the standard 

applies only to roads used for loading, hauling and dumping and that the 

activities that the roadway was used for her2 did not fall into any of 

those categories. 5/ We disagree. The hauling of explosives is the 

kind of haulage contemplated by section 56.9. tTherefore, we reverse the 

decision of the judge, rei:istate the citation ~nd remand for further 

proceedings consistent with this opinion. !!._/ 

Citation No. 159662 

This citation also involved an alleged violation of 30 CFR 

§56.9-22. The citation was issued because El Paso had allowed haulage 

trucks to be driven on a "bench" before berms were erected. 7/ The 

bench where the haulage took place was elevated forty feet above a lower 

bench. On the basis of those facts, the judge found a violation of 

section 56.9-22. The question on review is whether a "bench" is an 

"elevated roadway" within the meaning of the standard. El Paso argues 

that it is not and that the judge, therefore, erred in finding a 

violation. We disagree. Under the facts of this case, the quarry bench 

where the haulage trucks were driven is indeed an elevated roadway 

within the meaning of section 56.9-22. The judge's finding of a 

violation is, therefore, affirmed. 

Citation Nos. 159660 and 159664 

These citations involve a common question of law: whether El Paso 

may be held liable when its customers or employees of its customers do 

not comply with mandatory safety standards.§_/ One citation (No. 159660) 

5/ The judge apparently based his conclusion upon the fact that 30 CFR 

§56.9 is entitled, "Loading, hauling, dumping." 

!i/ Because hauling activities were involved here, we do not pass upon 

the question of whether the provisions of 30 CFR §56.9 are applicable 

only to loading, hauling and dumping activities. 

7/ The term "bench" is in part defined by A Dictionary of Mining, 

Mineral, and Related Terms, Department of the Interior (1968), as: 

A ledge, which, in open-pit mines and quarries, forms a single 

level of operation above which mineral or waste materials are 

excavated from a contiguous bank of bench face. The mineral or 

waste is removed in successive layers, each of which is a bench, 

several of which may be in operation simultaneously in different 

parts of, and at different ~levations in an open-pit mine or 

quarry. 

8/ Ti12 customers and employees of customers were refe;:-ed to during 

the proceeding and in the judge's decision as "rock pickers". 

" r-. uo 
alleged a violation of 30 CFR §56.15-4. 9/ It was issued because two 

rock pickers were not wearing eye protective equipment whil~ breaking 

rocks with a hammer. The other citation (No. 159664) alleged a 

violation of 30 CFR §56.3-12. 10/ That citation was issued because two 

other rock pickers, who, while--:foading onto a truck rocks that were 

being rolled down to them from the top of the quarry bank, were working 

between the truck and the bank and did not have access to an adequate 

escape route. 

The judge found that violations of both standards occurred. He 

also determined that El Paso was liable for the violations, because the 

rock pickers were "miners" as that term is defined in section 3(g) of 

the Act. He concluded, therefore, that the rock pickers were entitled 

to the same protection as that afforded miners who are employees of the 

mine owner. 

We affirm. First, we hold that the judge was correct in concluding 

that the rock pickers were miners within the meaning of section 3(g) and 

were, therefore, entitled to the protections of the Act. We note that 

section 3(g) defines a "miner" as "any individual working in a coal or 

other mine". Here, the rock pickers broke, loaded and hauled the rock 

out of the quarry. In light of these activities the rock pickers were 

miners as defined by section 3(g). 11:.I 

Second, we hold that the judge was correct in finding that El Paso 

was liable for the violations. The substantial involvement by the rock 

pickers in the quarrying operation of El Paso is a sufficient basis upon 

which to predicate El Paso's liability for the violations committed. 

Therefore, we affirm the judge's holding that El Paso is liable for 

the failure of its customers or the employees of its customers to comply 

with the mandatory safety staudards. 

2/ Section 56.15-4 provides: 

All persons shall wear safety glasses, goggles, or face 

shields or other suitable protective devices when in or around an 

area of a mine or plant where a hazard exists which could cause 

injury to unprotected eyes. 

10/ Section 56.3-12 provides: 

Men shall not work between equipment and the pit wall: or bank 

where the equipment may hinder escape from falls or slides of the 

bank. 

11/ Neither in that section nor elsewhere in the Act is one's status as 

a"minerlt made contingent upon an employment relationship with the owner 

or operator of a mine. 

37 
Citation ~o. 159661 

Here, the inspector cited El Paso for an alleged violation of 30 

CFR §56.9-40(a). That standard provides that ~en shall not be transported "[i]n or on dippers, forks, clamshells, [or] beds of trucks 

unless special provisions are made f,or their safety, or buckets except 

shaft buckets." The inspector issued the citation upon observing a 

person riding on the running board of a truck. At the opening of the 

hearing, counsel for the Secretary moved to amend the citation so as to 

allege a violation of section 56.9-40(c), rather than section 

56.9-40(a). Section 56.9-40(c) provides that men shall not be transported "[o]utside the cabs and beds of mobile equipment, except trains." 

Counsel for El Paso objected to the amendment and the judge denied the 

Secretary's motion. 

We affirm. Granting or denying amendments is largely a discretionary matter with the judge to whom the motion is made. Although 

we might have ruled differently as an initial matter, 12/ we conclude 

that the judge did not abuse his discretion in denying-:the Secretary 

leave to amend the citation. 

Citation No. 159665 

This citation involved an alleged violation of 30 CFR §56.9-87. 

That mandatory standard requires that where an operator of heavy duty 

mobile equipment has an obstructed view to the rear, such equipment is 

to be provided with an automatic reverse signal alarm that is audible 

above the surrounding noise level, or in the alternative, that an observer is to be .present in order to signal when it is safe to back up. 

The inspector issued the citation upon observing a truck back up with an 

inoperative reverse signal alarm. The judge vacated the citation on the 

ground that although the reverse alarm was inoperative, the Secretary 

failed to establish that El Paso knew or should have known it was inoperative. 

The question on review is whether, under the 1977 Mine Act, an 

operator may be held liable for a violation of a mandatory safety 

standard regardless of fault. We answer that question in the affirmative. As we have previously held with respect to the Federal Coal Mine 

Health and Safety Act of 1969, 30 u.s.c. §801 et seq. (1976) (amended 

1977), unless the standard itself so requires,-an operator's 

12/ In this regard, we note that Rule lS(a), Fed. R. Civ. P., in part 

provides: 

(a) Amendments. A party may amend his pleading once as a 

matter of course at any time before a responsive pleading is served 

or, if the pleading is one to which no responsive pleading is 

permitted and the action has not been placed upon the trial 

calendar, he may so amend it at any time within 20 days after it is 

served. Otherwise a party may amend his pleading only by leave of 

court or by written consent of the adverse party; and leave 

shall be freely given when justice so requires. [Emphasis added.] 

38 
negligence has no bearing on the issue of whether a violation occurred. 

Rather, it is a factor that is to be considered in assessing a penalty. 

United States Steel Corp., 1 F}tSHRC 1306, 1 BNA HSHC 2151, 1979 CCR OSHD 

,[23,863 (1979). Therefore, we reverse the decision of the judge, reinstate the citation and remand for further proceedings consistent with 

this opinion. 

Citation Nos. 159669, 159675 and 159695 

Each of these citations involved an all~ged violation of 30 CFR 

§56.11-2. 13/ The inspector issued the citations upon observing tools, 

bars, pulleys, hooks, wire rope and rocks lying near the edge of elevated walkways that were not equipped with toeboards (i.e., raised edges 

around the perimeter of the walkway platforms). The inspector believed 

that the absence of toeboards constituted a violation of section 56.11-2 

because the loose material lying on the walkways could fall over the 

sides of the platforms and onto employees working below. The judge 

vacated the citation on the ground that the standard is intended to 

protect only those employees working on the elevated walkways, and not 

those employees working underneath them. 

We disagree. In view of the renedial nature of the 1977 Mine Act, 

we hold that one of the purposes of the toeboard provision contained in 

that standard is to protect persons working below elevated walkways from 

falling objects. 14/ Therefore, we reverse the decision of the judge, 

reinsta~e the ci~ations and remand for further proceedings consistent 

with this opinion. 

J;i/ Section 56.11-2 provides: 

Crossovers, elevated walkways, elevated ramps, and stairways 

shall be of substantial construction provided with handrails, and 

maintained in good condition. Where necessary, toeboards shall be 

provided. [Emphasis added.] 

14/ The Occupational Safety and Health Review Commission has also 

recognized such a purpose of toeboards in similar standards under the 

Occupational Safety and Health Act. See Western Waterproofing 

Co., Inc., 7 BNA OSHC 1625, 1979 CCH OSHD ,[23,785 (1979); Truax & 

Hovey Drywall Corp., 6 BNA OSHC 1654, 1978 CCH OSHD ~[22,799 (1978). 

Also, with respect to toeboards, the Accident Prevention Manual 

For Industrial Operations, National Safety Council, 7th ed. (1978) 

states: 

Open-sided floors or platforms more than 4 ft above floor or ground 

level, and scaffolds more than 10 ft above floor or ground level, 

should be guarded by a 36- to 42 in.-high railing (with midrail). 

If persons can pass beneath or if there is moving machinery 

or other equipment with which falling materials could create 

a hazard, the guardrail should also have a 4-in.-high toeboard. 

Screening can also be added. [Fig. 16-7, at p. 389; emphasis 

added.] 
Citation No. 159691 

This citation involved an alleged violation of 30 CFR §56.12-68. 15/ 

The inspector issued the citation upon observing that the gate to a 

fence surrounding an electrical power transformer was not locked. In 

vacating the citation, the judge stated that it had apparently been 

issued within minutes after the issuance of another citation alleging 

the existence of a hole in the same transformer fence. The judge concluded that because of the hole in the transformer fence, El Paso was no 

longer under an obligation to keep the transformer gate locked at the 

time that the unlocked gate citation was issued. 

We reverse •. The 1977 Mine Act imposes a duty upon operators to 

comply with all mandatory safety and health standards. It does not 

permit an. operator to shield itself from liability for a violation of a 

mandatory standard simply because the operator violated a different, but 

related, mandatory standard. Therefore, we reverse the decision of the 

judge, reinstate the citation and remand for further proceedings consistent with this opinion. 

Accordingly, the judge's decision is affirmed with respect to 

Citation Nos. 159662, 159660, 159664 and 159661. With respect to 

Citation Nos. 159658, 159665, 159669, 159675, 159695 and 159691, the 

judge's decision is revers~d and.the citat·,<,ms are 

remanded for further proceedings cons/ t 'wi . 

t 

Backley, Chairman, dissenting in part -

\\fl r'' I '\' 

·'.)~,.'...· 

Commissioner 

I dissent from that part of the majority opinion that would reverse 

the judge's decision vacating Gita tion No. 159691. This citation 

involved an alleged violation of 30 CFR Sec. 56.12-68, which requires 

that.transformer enclosures be kept locked against unauthorized entry. 

The record discloses that this citation was issued to the operator two 

minutes after the latter had received a citation for having a hole two 

feet wide in the transformer fence. 

15/ Section 56.12-68 provides: 

Trans~ormer enclosures shall be kept locked against unauthorized entry. 

40 
The citations of the inspector were laudable - to a point. In 

issuing Citation No. 159691, the inspector gave the operator 30 hours to 

install a lock on the gate. The operator abated in 4~ hours.~The 

operator was given 4 davs to repair the fence. He abated this violation 

in 9~ hours. 

The purpose of keeping a transformer fence locked is clear. What 

is not clear is whether the manner of enforcement present in this case 

accomplishes the purpose - keeping unauthorized persons out of the 

enclosure - where there is no enclosure. Had the operator abated both 

citations at the maximum time allowed by the inspector, he would have 

bad a locked transformer fence with a hole in it. Somewhere, I miss the 

point. 

~·· 

41 
Distribution 

Ralph W. Scoggins, Esq. 

El Paso Rock Quarries, Inc. 

Suite 342 

5959 Gateway West 

El Paso, Texas 79925 

Cynthia L. Attwood,Esq. 

Office of the Solicitor 

U.S.Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charles C. Moore, Jr. 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

Falls Church, Virginia 22041 

42 
Administrative Law Judge Decisions 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 1981 

HARMAN.MINING CORPORATION, 

Contestant 

Contest of Order and Citations 

v. Docket No. VA 80-94-R 

SECRETARY OF LABOR, Order No. 698509 

MINE SAFETY AND HEALTH February 9, 1980 

ADMINISTRATION (MSHA), 

Respondent Docket No. VA 80-95-R 

UNITED MINE WORKERS OF AMERICA, 

(UMWA), 

Citation No. 0698510 

February 11, 1980 

Appearances: 

Before: 

Respondent 

Docket No. VA 80-96-R 

Citation No. 0698511 

February 11, 1980 

Docket No. VA 80-97-R 

Citation No. 0698513 

February 14, 1980 

Central Preparation Plant 

DECISIONS 

Robert M. Richardson, Esq., J. Peter Richardson, Esq., 

Bluefield, West Virginia, for Contestant; 

John H. O'Donnell, Attorney, Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for Respondent MSHA. 

Judge Koutras 

Statement of the Proceedings 

These consolidated contests concern a section 103(k) order and three 

section 104(a) citations issued by MSHA to the contestant in February, 1980. 

The order was issued by MSHA inspector Roger L. Clevinger on February 9, for 

the purpose of facilitating an investigation into a fatal railroad haulage 

accident which occurred at contestant's cent 1 al preparation plant on the 

evening of February 8. The accident :'esulted in the death of an employee 

(brakeman) of the Norfolk & Western Railroad (,)mpany who was struck by a 

45 
trip of two runaway loaded railroad cars being dropped by an employee (car 

dropper) of the contestant. The facts and circumstances surrounding the 

accident are detailed in the accident investigation report prepared by MSHA 

inspectors Clevinger and Merian O'Bryan (Exh. R-1). The citations were 

issued as a result of the information obtained by the inspectors during the 

course of their investigation, but only two of them were related to the 

accident. 

The section 103(k) Order No. 0698509, February 9, 1980, issued by 

Inspector Clevinger reads as follows: "A fatal accident has occurred on the 

railroad side track serving this preparation plant. This order is issued 

pending an investigation to determine the cause and means of preventing a 

similar occurrence." 

Citation No. 0698510, February 11, 1980, issued by Inspector Clevinger, 

cites a violation of 30 C.F.R. 77.1607(v), and states as follows: "The 

railroad car dropper did not have the two loaded railroad cars being dropped 

on the side track under control in a manner to where the cars could be 

stopped safely when needed. This was issued during a fatal accident 

investigation." 

Citation No. 0698511 (as amended), February 11, 1980, issued by Inspector Clevinger, cites a violation of 30 C.F.R. 77.1713, and states as follows: 

"The onshift examination for hazardous conditions at the Central Preparation 

Plant was not being conducted by a certified person." 

Citation No. 0698513, February 14, 1980, issued by Inspector Clevinger, 

cites a violation of 30 C.F.R. 48.31, and states as follows: "Hazard training was not provided for the Norfolk and Western employees serving this 

preparation facility." 

A hearing was conducted in Pikeville, Kentucky on September 11, 1980, 

and the parties appeared and participated therein. Post-hearing proposed 

findings and conclusions were submitted by the parties and the arguments presented have been fully considered by me in the course of these decisions. 

Although notified of the hearing, respondent UMWA failed to appear and I 

dismissed them as a party (Tr. 80). 

Issues Presented 

1. Whether the accident occurred on contestant's coal mine property 

and whether the asserted mining activities engaged in by the contestant at 

the time of the accident constituted "mining11 within the meaning of the Act. 

2. Whether the order and citations were properly and validly issued by 

the inspector pursuant to the Act, and whether the conditions and practices 

described in the citations constituted violations of the cited mandatory 

safety standards. 

46 
3. Whether the order and citations should have been served on the 

Norfolk and Western Railroad Company (N & W) as the "operator" of the 

"mine," rather than on the contestant. 

4. Additional issues raised by the parties are identified and disposed 

of in the course of these decisions. 

Findings and Conclusions 

The Jurisdictional Question 

Resolution of the legal question concerning MSHA's jurisdiction in this 

case centers on the following questions: (1) Is the tipple and preparation 

plant part of a coal mine within the meaning of the Act? (2) Is the area of 

land where the & tracks are located and where loaded coal cars 

are parked awaiting transportation by the railroad part of a coal mine? 

The definition of "coal or other mine" found in section 3(h)(l) of the 

Act is as follows: 

"[C]oal or other mine" means (A) an area of land 

from whi~h minerals are extracted in nonliquid fonu or, if 

in liquid form, are extracted with workers underground, (B) 

private ways and roads appurtenant to such area, and (C) 

lands, excavations, underground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, equipment, 

machines, tools, or other property including impoundments, 

retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the 

work of extracting such minerals from their natural deposits 

in nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such 

minerals, or the work of preparing coal or other minerals, 

and includes custom coal preparation facilities. 

In its post-hearing brief contestant argues that the fatal accident and 

all car-dropping activities relating to and leading up to the accident 

happened on the N & W railroad tracks, at a site physically separate from the 

preparation plant and that any coal preparation had been completed and transportation begun. In these circumstances, contestant advances the argument 

that since the accident did not occur in '~ coal or other min~' as defined by 

the Act, MSHA has no jurisdiction to issue orde~s or citations for conditions 

or practices over which contestant has no control. 

Conceding that the definitions of "coal or other mine" follows the mining process from extraction through preparation, contestant nonetheless 

advances the argument that while specific facilities are referred to by the 

definitions section found in the Act, transporting prepared coal in railroad 

cars is not included among the itemized activities listed therein. Further, 

contestant asserts that it conveyed all of its tangible property interests in 

47 
the railroad tracks, roadbeds, and appurtenances thereto to the railroad. 

Contestant would draw the line at the production or preparation ~nd of its 

mining process precisely where the coal has been prepared and completely 

loaded into the railroad car delivery vehicle while it is on the track, but 

would not extend MSHA's jurisdiction to loaded railroad cars assertedly off 

of the coal company's property. In support of this argument, contestant 

points out that MSHA has not undertaken to regulate the defective railroad 

car brakes such as the ones which caused the accident in this case, and that 

the railroad has refused to submit itself to MSHA's jurisdiction because it 

believes that the accident occurred on a railroad rather in a coal mine, 

thereby subjecting the railroad to the jurisdiction of the Interstate 

Commerce Commission rather than MSHA. 

Contestant's jurisdictional position was succinctly stated by its counsel 

during the course of the hearing as follows (Tr. 219): 

When that car is dropped onto tracks belonging to the 

Norfolk and Western Railroad in a Norfolk and Western railroad 

car completely loaded and ready for transportation to its 

destination with nothing more to be done to it in the manner 

of preparation or extracting, then I say that is the fine 

line. Because I say under the definition of a coal mine there 

is nothing, no language that would include the tracks of the 

Norfolk and Western Railroad as a part of the coal mine. But 

I think it is definitely a far cry different thing from a 

preparation facility belonging to Harman and I think when that 

car's under that preparation plant being loaded that it is 

subject to inspection. When it is dropped in position, which 

is the case in this case, below that tipple loaded in a 

Norfolk Western Car on a Norfolk and Western track with defective brakes on it that it is not on a coal mine. 

Respondent MSHA's arguments in support of its jurisdiction in this 

matter includes a detailed analysis of the deed and agreement between contestant and the railroad concerning the use of the land and railroad equipment in question (Exhs. R-15 and R-16). In summary, MSHA argues that when 

read together, the agreement and deed do not reflect any intention on the 

part of contestant to convey the land below the tipple and preparation plant 

in fee to the railroad. To the contrary, MSHA argues that the effect of. the 

deed and agreement is to grant to the railroad an easement or license across 

contestant's land for the purpose of providing a mutually beneficial and 

convenient method of transporting coal off mine property. 

The record reflects that the railroad cars are loaded at the tipple 

preparation plant and trips of three to five loaded cars are then dropped by 

gravity and placed on certain tracks some four to five hundred feet from the 

plant until such time as they can be added to other trips and taken away by 

the railroad. During the dropping process the cars are dropped by gravity, 

they are manned by car droppers employed by the contestant, the car droppers 

control the positioning of the loaded cars on the tracks, and their duties 

48 
include operating the track switches to facilitate the placing of the loaded 

cars at the desired track locations (Tr. 29-31). The tracks consist of three 

storage tracks and the main railroad track (Tr. 32, Exh. R-2). The car 

dropper actually stands on a platform at one end of the loaded moving car, 

and his job is to control the speed of the car by means of a wheel-type 

mechanical braking device (Tr. 36). 

The record also reflects that brakemen employed by the railroad also 

operate the track switching devices and often instruct the car droppers where 

to position the loaded coal cars. These railroad brakemen routinely spend 

time on mine property, and Inspector O'Bryan stated that "That's the only way 

the cars can get on and off is by N & W people or the railroad people. I 

know of no other company that has their own railroad" (Tr. 38, 40). 

Mr. O'Bryan believed that the storage tracks were on mine property but he had 

no knowledge as to who actually owned the land where the tracks are located, 

but it was his understanding that the area from the preparation plant to the 

"D-railn is on mine property and that the three storage tracks were leased to 

the contestant mining company (Tr. 43-45). 

Contestant's employees do have occasion to drop cars as far as the 

D-rail, but they are normally pulled to that area by a locomotive for storage 

purposes (Tr. 49). Contestant's car dropper James Bennett testified that 

employees of the railroad company are on the property from the tipple to the 

D-rail on a daily basis and that the tipple operates normally on two shifts, 

sometimes three, and there are times when the railroad employees extend their 

work hours (Tr. 146). He also testified that both he and railroad employees 

operate all of the track switches when required, and that he has dropped cars 

as far as the D-rail (Tr. 149). He also testified that he has been employed 

at the tipple for 27 years and that the coal processed at the tipple comes 

from three or four different mines and that it is transported to the tipple 

by trucks and railroad cars (Tr. 155-156). Car dropper Bill McCoy testified 

that railroad brakemen do not drop any of the loaded coal cars because "the 

union wouldn't let them" (Tr. 184). 

Contestant's Vice-President for Operations, Paul Hurley, testified that 

"we couldn't operate as a coal mining company without the services of N & W" 

(Tr. 208). With regard to the source of the coal which is processed through 

the tipple and preparation plant, he testified as follows (Tr. 202): 

It comes from a multiplicity of mines around. Primarily 

the Harman Preparation Plant is a plant that was built many 

years ago to service the number one and number three mines 

which it still does and is still a part of that operation in 

that the mine cars from number three mine come in and dump 

right in directly in~o the back of the plant everyday and 

every night. In addition to that we have a facility on the 

hill back of this plant through a system of conveyors where 

we accept and receive coal from three of our truck mines -

three of our outlying area mines that the coal from them is 

trucked in. And sixteen or seventeen small contract mines 

that is brought in by the truck route too. 

49 
Mr. Hurley described the operations of the tipple and preparation plant, 

and stated that the plant was constructed in 1937 to service the number one 

and number three mine. His office is located some 1,500 feet above the plant 

location, and he confirmed that the preparation and tipple operations have 

been regulated and inspected by MSHA for many years (Tr. 213-218). Although 

he did indicate at one point during his testimony that he did not consider 

the tipple to be a "mine" because coal was not extracted there, contestant's 

counsel conceded that it was (Tr. 219). 

On July 6, 1978, I rendered a decision in the case of MSHA v. 

Consolidation Coal Company, Docket No. VINC 77-122-P, and ruled that a certain 

track area over which the Norfolk and Western Railroad Company had an easement to operate was part and parcel of Consolidation's coal mining operations 

and that the track area where an MSHA inspector issued a citation for failure 

by Consolidation to maintain the tracks as required by mandatory safety 

standard 30 C.F.R. 77.1605(m), was in fact a part of a coal mine within the 

meaning of the 1969 Act. A copy of my decision, as well as my jurisdictional 

ruling of January 5, 1978, in response to a motion for summary judgement, is 

attached to MSHA's post-hearing brief and are matters of record. The facts 

and circumstances in Consolidation, particularly with respect to the jurisdictional arguments advanced by the parties, are essentially similar, if not 

identical, to those presented in the instant case. 

After careful review and consideration of all of the arguments presented 

in this case, I conclude and find that MSHA has the better part of the 

jurisdictional argument and I accept and adopt its contentions in this regard 

and reject those advanced by the contestant. I believe it is clear that contestant's tipple and preparation plant are in fact subject to MSHA's enforcement jurisdiction and that the activities at those locations are in fact coal 

mining activities within the meaning of the Act, and I believe that contestant 

has conceded as much and does not seriously dispute this fact. As pointed out 

in my prior decision in the Consolidation case, the definition of "coal or 

other mine" as found in section the Act includes mining activities 

which take place at a tipple or preparation facility. 

The Dictionary of Mining, Mineral and Related Terms, Bureau of Mines, 

1968 Ed., pg. 859, defines the term "preparation plant" as including any 

facility where coal is "separated from its impurities, washed and sized, and 

loaded for shipment. 11 The term "tipple" is defined at pg. 1145 as: 

Originally the place where the mine cars were tipped and 

emptied of their coal, and still used in that sense, although 

now more generally applied to the surface structures of a 

mine, including the preparation plant and loading tracks 

* * *· The dump; a cradle dump * * *· The tracks, trestles, 

screens, etc., at the entrance to a colliery where coal is 

screened and loaded. [Emphasis supplied.] 

Based on the testimony and evidence presented in this case, I believe 

there is no question that the tipple preparation plant is in fact a 11 coal or 

50 
other mine" for purposes of the Act. In addition, I also conclude that the 

track area below the tipple, up to and including the D-rail location, is also 

part of contestant's "coal or other mine 11 for purposes of the Act, and its 

very narrow arguments to the contrary are rejected. I conclude and find that 

contestant is the legal owner of the land where the track system is located, 

and the fact that the railroad has been allowed to use the land for its 

tracks and other equipment, including its locomotives and coal haulage cars, 

does not detract from this fact. As I construe the deed and agreement 

referred to by the parties, any conveyance from the contestant to the railroad was in effect a license or easement to use the land, and the fee ownership in the land itself has still be retained by the contestant. Further, 

as candidly admitted by Vice-president Hurley, for all practical purposes 

contestant cannot continue to exist and operate as a viable mine operator 

without the benefit of the railroad to carry away the coal processed and 

loaded at its central tipple and preparation plant. 

Although coal extraction does not take place at the preparation plant, 

the work of loading the processed coal into railroad cars and dropping them 

below to the track storage area falls within the broad statutory language 

found in section 3(h), particularly the language "the work of preparing coal 

or other minerals, and includes custom preparation facilities." More importantly, the definition of 11coal or other mine" is broad enough in my view to 

include the track area in question. The railroad track is an integral and 

indispensable part of contestant's mining operations at the tipple and preparation plant and I reject any attempt to divorce them from the normal mining 

operations obviously be,ing carried out by the contestant on the basis of a 

somewhat artificial and semantical interpretation of a somewhat antiquated 

deed and agreement entered into by the contestant and the railroad for their 

mutual benefit. 

This conclusion is in accord with Marshall v. Stoudt's Ferry Preparation 

Company, 602 F.2d 589 (3rd Cir. 1979), ~· denied, No. 79-614 (January 7, 

1980), which dealt with a closely analogous situation. There, the State of 

Pennsylvania dredged a river and deposited the material into a nearby basin. 

The operator purchased this material and through the use of a front-end 

loader and conveyor belts transported the material to its plant where, through 

a sink-and-float process, a low-grade fuel was separated from the sand and 

gravel. The court held that the operator was engaged in the preparation of 

minerals within the jurisdiction of the Mine Act, and that "the work of preparing coal or other minerals is included within the Act whether or not 

extraction is also being performed by the operator." 602 F.2d at 592. 

The legislative history of the Act clearly contemplates that jurisdictional doubts be resolved in favor of Mine Act jurisdiction. The report of 

the Senate Committee on Human Resources states: 

The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's intention 

that what is considered to be a mine and to be regulated under 

this Act be given the broadest possible interpretation, and it 

51 
is the intent of this Committee that doubts be resolved in 

favor of inclusion of a facility within the coverage of the 

Act. 

s. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14; Legislative 

History of the Mine Safety and Health Act, Committee Print at 602. 

Docket No. VA 80-94-R 

Order No. 698509 

Inspector Clevinger testified that as a result of the fatal accident, 

he issued the section 103(k) order on February 9, 1980,. to facilitate an 

investigation to determine the cause of the accident. The order was terminated on February 11, 1980, after the investigation was concluded. The 

investigation team consisted of Federal, Union, and company officials and 

the cars involved in the accident were not moved by the railroad company 

until after the investigation was completed (Tr. 80-83). 

Section 103(k) states in pertinent part: 

In the event of any accident occurring in a coal or 

other mine, an authorized representative of the Secretary, 

when present, may issue such orders as he deems appropriate 

to insure the safety of any person in the coal or other mine, 

and the operator of such mine shall obtain the approval of 

such representative, in consultation with appropriate State 

representatives, when feasible, of any plan to recover any 

person in such mine or to recover the coal or other mine or 

return affected areas of such mine to normal. 

Contestant's defense to the order is based on its jurisdictional argument that the track area where the accident occurred is not part of the mine 

and that the inspector therefore had no jurisdiction or authority to issue 

the order. Since I have rejected contestant's jurisdictional argument and 

have concluded that the accident site was part of the mine, contestant's 

argument in defense of the order on this ground is likewise rejected. 

It seems clear to me that the inspector issued the order so as to maintain the status quo while an investigation was conducted. The order was 

limited to the railroad cars located in the track storage area and there is 

no evidence that contestant's coal tipple or preparation activities were in 

anyway otherwise curtailed or that contestant's production was in anyway 

affected by the order. The purpose of the order was to prevent the cars 

involved in the accident from being moved or disturbed until certain tests 

were conducted as part of the investigation. As a matter of fact, the railroad did not move the cars, the contestant participated in the investigation, 

and as soon as the investigation was completed the order was terminated. In 

these circumstances, I conclude and find that the inspector acted within his 

52 
authority in issuing the order and that the use of such an order in the circumstances presented in this case was reasonable, proper, and in accord with 

section 103(k). See: MSHA v. Eastern Associated Coal Company, HOPE 75-699, 

Commission Decision of September 2, 1980. Further, in view of my findings 

and conclusions concerning the jurisdictional question, I also conclude and 

find that the section 103(k) control order was properly served on the contestant as the mine operator. Considering all of these circumstances, the 

order is .AFFIIU1.ED. 

Docket No. VA 80-96-R 

Citation No. 698511 

The citation in this case was issued because the inspector discovered 

that the person conducting the onshift hazardous conditions examination was 

not a certified person within the meaning of cited standard 77.1713(a). 

Inspector Clevinger confirmed that he issued the citation after reviewing 

the onshift examination books and observing that the signature of the person 

signing the report as the examiner did not include a certification number 

confirming the fact that he was in fact a certified examiner. He identified 

that person as David Ratliff and he confirmed that while Mr. Ratliff may have 

conducted the examination, he had no state or federal certification as a 

qualified onshift examiner (Tr. 95-97). 

Inspector Clevinger testified further that the citation was terminated 

the day after it issued after a certified person conducted the required 

examination, and he confirmed that the citation was unrelated to the fatal 

railroad accident which occurred on February 8, 1980 (Tr. 96-98). He also 

testified that the preparation plant had its own MSHA "ID" or mine identification number and he considers it to be a surface mine (Tr. 122). 

Mr. Ratliff conceded that when he signed the onshift examination report 

he was not a certified examiner. He explained that in order to be certified 

one must have 5 years of mining experience and that he will have 5 years' 

experience on January 1, 1981. He also indicated that Mr. Clevinger considered him to be a competent person to make the required examination but that 

the report should have been countersigned by a certified person (Tr. 240-243). 

30 C.F.R. 77.1713(a) provides as follows: 

At least once during each working shift, or more often 

if necessary for safety, each active working area and each_ 

active surface installation shall be examined by a certified 

person designated by the operator to conduct such examinations for hazardous conditions and any hazardous conditions 

noted during such examination shall be reported to the operator and shall be corrected by the operator. [Emphasis added.] 

53 
The term "certified person" is defined in section 77.2(m) as: 

[A] person certified or registered by the State in which 

the coal mine is located to perform duties prescribed by this 

Part 77, except that, in a State where no program of certification or registration is provided or where the program does 

not meet at least minimum Federal standards established by 

the Secretary, such certification or registration shall be by 

the Secretary. 

The regulatory details concerning "qualified and certified persons" are 

set forth in section 77.100 and need not be repeated here •. Contestant does 

not dispute the fact that Mr. Ratliff was not "certified" as required by the 

regulations. Its defense is based on the assertion that the certification 

requirements of section 77.1713 apply only to surface coal mines, and that 

since the term "surface mine" is not defined, and the inspecto:i: .. iestified that 

no coal is produced by the preparation plant, contestant arguzs that the plant 

is not a surface mine. In fl~rther support of its argtnnent, contestant produced a copy of an MSHA Memorandum of April 10, 1979, from Adm:i..nistrator 

Joseph o. Cook to MSHA District Managers concerning the application of section 77.1713, and the pertinent portion of that memorandum reads as follows: 

"Section 77.1713, applies only to surface coal mines and does not apply to 

surface work areas-of underground coal mines. Therefore, examinations as 

specified in Section 77.1713 are not required at surface work areas of underground coal mines." 

MSHA argues that while contestant asserts that the preparation plant is 

the outside area of an underground mine, contestant does not specify which 

of its underground mines it wishes to associate with the plant. MSHA goes on 

to argue that the coal processed at contestant's central preparation plant is 

mined at different mine locations owned by the contestant as well as several 

mines operated under contract, and that the plant is the only one used by the 

contestant to process this coal. Each of contestant's mines, as well as the 

preparation plant, have separate mine identification numbers, and MSHA argues 

that the plant is in fact a surface facility independent of any mine. 

With regard to the April 10, .1979, memorandum alluded to by the contestant, MSHA asserts that it was intended to apply to a preparation plant operated as part of one underground mine. MSHA attached a copy of a December 13, 

1979, memorandum from its Associate Solicitor for Mine Safety and Health 

(Appendix No. 1, posthearing brief), which concludes in pertinent part as 

follows: 

Preparation plants not associated with surface or underground mines fall within ;t.he definition of "coal or other 

mine" because they conduct the work of preparing coal. Since 

all the activity at such preparation plants occurs on the 

surface, these plants are surface coal mines within the meaning of Part 77 which applies to surface coal mines and surface 

54 
work areas of underground coal mines. For the same reason, 

they are also active surface installations within the meaning 

of 77.1713. 

The memorandums alluded to by the parties in these proceedings are not 

binding on me, nor are the interpretations of the application of section 

77.1713. Accordingly, my findings and concluslons which follow are made on 

the basis of my independent consideration of the Act as well as the regulatory language of the pertinent standards found in Part 77. 

Part 77, Title 30, Code of Federal Regulations, contains the mandatory 

safety and health standards applicable to surface coal mines and surface work 

areas of underground coal mines. While it is true that the term "surface 

coal mine" is not further defined, section 77.200 dealing with surface 

installations provides that: "All mine str.11ctures, enclosures, or other 

facilities (including custom coal preparation) shall be maintained in good 

repair to prevent accidents and injuries to employees." The purpose of 

onshift examinations is to detect conditions which may contribute to hazards. 

The central preparation plant falls within the statutory definition of a 

"coal or other mine," and the fact that coal is not actually mined at that 

facility by use of drag lines or other machinery normally associai:ed wlth the 

actual extraction of coal is not controlling. The definition of "coal or 

other mine" found in the Act is broad enough to include the work of processing the coal produced at contestant's mines through the central preparation 

facility. 

I take note of the fact that the regulatory language found in section 

77.1713 makes reference to "active surface installation" and it can hardly be 

argued that the central preparation plant is not an active surface installation. The activities taking place at this plant are as much an integral part 

of the mining process as is the initial extraction of the coal itself, and 

since these activities take part on the surface I conclude and find that for 

purposes of the application of section 77.1713; the central preparation plant 

may be considered a surface coal mine ·and contestant's rirgu111ents to the contrary are rejected. The citation is AFFIRMED. 

Docket No. VA 80-97-R 

Citation No. 698513 

s citation was issued to the contestant because of its asserted failure to provide hazard training for the employees of the railroad who worked 

in and around the railroad yard near contestant's preparation plant. Specifically, MSHA asserts that the failure by the contestant to provide such 

training to the railroad employees who were engaged in duties connected with 

the transportation of the loaded railroad cars from contestant's property 

constituted a violation of the train-lng requirements found in section 48.31. 

That section of the regulations provides as follows: 

(a) Operators shall provide to those miners, as defined 

in § 48.22(a)(2) (Definition of miner) of this subpart B, a 

55 
training program before such miners commence their work 

duties. This training program shall include the following 

instruction which is applicable to the duties of such miners; 

(1) Hazard recognition and avoidance; 

(2) Emergency and evacuation procedures; 

(3) Health and safety standards, safety rules and safe 

working procedures; 

(4) Self-rescue and respiratory devices; and, 

(5) Such other instruction as may be required by the 

Chief of the Training Center based on circumstances and 

conditions at the mine. 

(b) Miners shall receive the instruction required by 

this section at least once every 12 months. 

(c) The training program required by this section shall 

be submitted with the training plan required by § 48.23(a) 

(Training plans; Submission and approval) of this subpart B 

and shall include a statement on the methods of instruction 

to be used. 

(d) In accordance with § 48.29 (Records of training) of 

this subpart B, the operator shall maintain and make available 

for inspection, certificates that miners have received the 

instruction required by this section. 

The regulatory education and training requirements mandated by the Act 

are found in Part 48, Title 30, Code of Federal Regulations. Subpart B contains the requirements for the training and retraining of miners working at 

surface mines and surface areas of underground mines. For purposes of the 

hazard training requirements imposed by section 48.31, the term "miner" is 

defined in pertinent part by section 48.22(a)(2) as follows: 

[A]ny person working in a surface mine or surface areas of 

an underground mine excluding persons covered under paragraph (a)(l) of this section and subpart C of this part and 

supervisory personnel subject to MSHA approved state certification requirements. This definition includes any 

delivery, office, or scientific worker, or occasional, 

short-term maintenance or service worker contracted by the 

operator, and any student engaged in academic projects 

involving his or her extended presence at the mine. 

Inspector Clevinger stated that he issued the citation upon instructions 

from his supervisor and that he did so after confirming during the course of 

56 
his accident investigation that the contestant had not given any hazardous 

training to any of the railroad employees. An operator is required to maintain records of such training on MSHA Form 5000-23, and when plant supervisor 

Ronnie Cox could not produce the form attesting to such training, he issued 

the citation (Tr. 87-88). The abatement was extended several times because 

of the fact that contestant has sought review of the citation, and the violation has never been abated (Tr. 92). 

On cross-examination, Inspector Clevinger identified a copy of a 

February 21, 1980, letter from the railroad trainmaster to contestant's 

vice-president for operations refusing to permit railroad employees to be 

trained by the contestant (Exh. R-8), and he confirmed that contestant would 

have compliance difficulties without the cooperation of the railroad. 

Mr. Clevinger suggested that the only alternative available to the contestant 

would be to exclude railroad employees from its property (Tr. 100-101; 110). 

Mr. Clevinger also stated that the hazardous training requirements under section 48.31 apply to anyone on contestant's mine property and that the 

requirements apply to any person whether he is a miner or not (Tr. 111). He 

confirmed that he has inspected other mine sites but has never previously 

cited other mine operators for not training railroad employees, nor could he 

recall that other MSHA inspectors cited operators for such violations 

(Tr. 113-114). 

Contestant's Vice-President Hurley testified that when he initially contacted the railroad trainmaster concerning the training of railroad employees, 

the trainmaster advised him that the railroad would object and he confirmed 

this in writing by letter (Exh. R-8, Tr. 204). Mr. Hurley testified further 

that he did not inquire any further and accepted the trainmaster's refusal to 

permit railroad employees to be trained as the railroad's policy in this 

regard, and he made no further inquiries and confirmed the fact that the railroad services provided to the contestant were an essential part of its mining 

operations (Tr. 205-212). 

Contestant's defense to the citation is based on the fact that the railroad has refused to submit its employees to the required training, as well as 

the argument that as an independent contractor "mine operator," the railroad 

should be held accountable for its refusal to allow its employees to be 

trained, and that as an independent contractor, the railroad rather than contestant should be cited for the violation. 

In support of the citation, MSHA points to the fact that since the 

employees of the railroad are routinely assigned to contestant's property to 

perform duties connected with the loading of the railroad cars at the tipple, 

it is incumbent on the contestant to insure that they receive the required 

training. MSHA views the letter from the railroad trainmaster as a halfhearted attempt by the contestant to escape liability in this case and 

suggests that more effort by the contestant could have achieved compliance. 

In the final analysis, MSHA would have the contestant refuse entry to all 

railroad employees who do not subject themselves to contestant's training 

efforts. 

57 
The citation issued in this case charges the contestant with the failure 

to provide hazard training for the employees of the Norfolk and Western 

Railroad. MSHA's evidence and testimony in support of the alleged violation 

is the testimony of Inspector Clevinger that mine management was unable to 

produce an HSHA form attesting to the fact that the employee who was killed 

had received any training. Contestant's defense is that it provided an 

opportunity for training, but that the railroad refused to allow its employees 

to be trained. MSHA has not proven that.contestant does not have a training 

program for its own employees, nor has it not rebutted the fact that the contestant was ready, willing, and able to train railroad employees working on 

its mine property. Since MSHA has the initial burden of making out a prima 

facie case to support its contention that training was not provided in accordance with the requirements of section 48.31, it is incumbent on MSHA to prove 

its case by a preponderance of the evidence. Since section 48.31 requires 

that such training be provided, I cannot conclude that contestant did not in 

fact provide such training. The railroad simply failed to take advantage of 

it by refusing to submit its employees to such training. As an analogy, a 

public school system provides for the education of its citizens, but if the 

citizens do not accept the opportunity to educate themselves one can hardly 

hold the school system accountable. Of course, one recourse by the school 

authorities is to seek enforcement of any compulsory school attendance law if 

one is in fact in effect. In such a case, the local authorities would 

undoubtedly hold a parent accountable for failure to insure that his child 

take advantage of the education which has been provided. By the same token, 

MSHA should look to the "parent railroad11 rather than the nsurrogate parent'' 

mine company to insure that its own people take advantage of the training 

which has been provided. 

MSHA does not dispute the fact that the contestant has given the railroad an opportunity to train its employees. MSHA's position seems to be that 

although training has been provided, the contestant must go one step further 

and insure that the railroad employees avail themselves of the training, or 

suffer the consequences of citations and closure orders for failing to insure 

that railroad employees submit to such training. In the circumstances, I 

conclude and find that MSHA has not established a violation of the cited 

standard and the citation is VACATED. Further, on the facts and circumstances 

presented in this case, I feel compelled to comment further with regard to 

the training requirements and the theory of MSHA's attempts to enforce those 

standards, and my remarks follow below. 

Since MSHA has the initial enforcement jurisdiction in matters relating 

to mine safety and health compliance, I suggest that MSHA take the initiative 

to insure compliance by railroad companies operating on mine property, rather 

than to shift the burden to mine operators or to the Commission Judges. 

Failure by MSHA to act directly against a contractor-operator is precisely 

why I recently dismissed nine civil penalty dockets remanded to me from the 

Commission, MSHA v. Pittsburgh & Midway Coal Mining Company, Dockets 

BARB 79-307-P, etc., September 5, 1980. On the facts presented in this case, 

MSHA concedes that the independent contractor railroad is in fact subject to 

58 
the Act and can be regulated by MSHA, and in support of this conclusion I 

cite the following colloquy between MSHA counsel and me during the course of 

the hearing (Tr. 76-79): 

JUDGE KOUTRAS: But, what I'm saying, there's nothing to 

preclude the Secretary if he wanted to, to subpoena some 

Norfolk and Western people and during the course throughout 

the investigation. 

MR. O'DONNELL: We could have them there if we wanted 

them. One thing I've been listening with amusement here. 

Both Mr. Richardson and to a certain extent our own people 

seem to indicate that these railroad people are what -

Government? they're just - we have the same rights with them 

that you've got against the driver of a - and an accident on 

the property we could go in and slap them good. We're not 

afraid of the railroads. We'll tell the railroad what to do 

and they'll do i.t. If they don't do it, they won't haul 

coal. And if they don't haul coal, they're going to be hurting in this area. That's the major part of their busin.~ss. 

JUDGE KOUTRAS: Are the railroad companies that haul 

coal regulated at all by any regulations and safety standards 

by MSHA? 

MR. O'DONNELL: Every railroad, every airline, every, 

everybody that is on mine property is subject to the Federal 

Mine Safety and Health Act of 1977. And they have to comply. 

Whether it's anything or whether it's a United States Postal 

person coming on there. If he comes onto the mine property 

as part of his duty, he's subject to it. Everybody is. It 

comes in the jurisdiction of a mine they are responsible. 

And we can control them. And we will control them. 

JUDGE KOUTRAS: In other words, if they were to find 

defective brakes on these locomotives, the theory against 

Harman Mining would be what? 

MR. 'DONNELL: Independent contractor. 

JUDGE KOUTRAS: Who? 

MR. O'DONNELL: The railroad is an independent contractor 

performing services for Harman Mining Company - they are a 

necessary part of their mining operation. 

JUDGE KOUTRAS: That's the way you would proceed now, 

you would look at the railroad company as an independent 

contractor? 

59 
MR. O'DONNELL: Exactly. Same way we would a coal haul 

truck. What is the difference between a coal haul truck and 

the railraod cars? They both haul coal out of the way and 

take it to the supplier. If there's any difference at all -

you might say, well, the railroad is subject to Interstate 

Commerce Acts of Congress, but if those Acts don't conflict 

with the Federal Mine Safety and Health Act of 1977, then 

this steps into that void and that's it then. This is a 

later Act for that matter. 

JUDGE KOUTRAS: But the theory of the Government's case 

in this particular proceeding is that the loaded coal trips 

were being operated by Harman employees and that they were 

operated at the mine site, which in the Government's eyes is 

from the tipple down to the D-rail. And it's the responsibility of Harman Mining Company rather than the railroad in 

this case. 

MR. O'DONNELL: That's right. 

JUDGE KOUTRAS: Theoretically, if this case were to start 

today, assuming that you found no defective brakes et cetera, 

et cetera, that you would proceed in the same manner or in a 

combination. You could possibly have the railroad in here as 

co-respondent, couldn't you? 

MR. O'DONNELL: I believe we would cite them both. I'm 

reminded of the Austin Powder Company case where we cited the 

mine operator for some of the problems and the Austin Powder 

Company for other violations. 

MSHA's suggestion that a mine operator may exclude or evict railroad 

employees from its mine property is of course one course of action available 

to an operator who is faced with a recalcitrant railroad company, and 

although this is precisely what I suggested in my prior decision in the 

Consolidation Coal case, I do not believe that this is the most effective way 

of dealing with a training problem that will undoubtedly have a broad and far 

reaching effect upon the entire railroad and mining industry. Further, it 

seems to me that after many years of litigation concerning independent contractors, the case-by-case method of adjudicating disputes which have broad 

application on a day to day basis is not the best way of gaining compliance. 

The Consolidation Coal Company decision and the instant proceeding are classic 

examples of MSHA attempting to place the Judge in the position of policing 

the railroad and coal industry, and MSHA 1 s counsel reminding me that after my 

decision in the Consolidation Coal case nearly 2 years ago the railroad somehow found time to repair defective tracks for which the mine operator was 

cited confirms my point. Conversely, I remind counsel of my observations at 

pg. 20 of that decision where I stated as follows: 

The choice of a proper party-respondent lies within the 

authority and discretion of the enforcing agency. However, 

60 
aside from the fact that petitioner acted on the basis of the 

then prevailing policy and controlling decisions when it cited 

the respondent for the violation in this case, it seems to me 

that in future cases of this kind, petitioner should seriously 

consider joining the independent contractor as a party respondent, particularly in a case of a culpable independent contractor, rather than taking the expedient route of simply 

naming the mine operator. 

During the course of the hearing MSHA's counsel alluded to the fact that 

the manner in which MSHA would proceed to insure that railroad employees are 

trained by mine operators is to issue withdrawal orders to the mine operators, 

and he stated that "we can issue one against every single customer that 

Norfolk and Western has until they comply" (Tr. 104). As a matter of fact in 

the instant case, assuming my decision is favorable to MSHA, MSHA stands 

ready to issue a section 104(b) withdrawal order to the contestant, thereby 

hoping to force submission by employees of the railroad (Tr. 93-94). The fact 

that the railroad refuses to submit its employees to training is a matter that 

MSHA leaves to me. In short, MSHA's position seems to be that a decision 

adverse to the contestant on this.question will undoubtedly result in the 

railroad's immediate submission to MSHA's training requirements. Assuming 

that this is the case, I am not convinced that in the next identical set of 

circumstances MSHA will in fact cite the railroad. My guess is that MSHA will 

await the next contest by another mine operator' involving another, or possibly 

the same railroad company, and will undoubtedly opt to gain compliance in 

precisely the same manner as this case has unfolded. 

As I observed during the course of the hearing in this case, MSHA 

apparently has made no effort to enforce the training requirements provided 

for in the Act or in its mandatory regultory training requirements directly 

against a railroad until the unfortunate accident which occurred in this case. 

Once the accident occurred, immediate focus was placed on the lack of training 

and the fact that there was no confirmation of the fact that the railroad 

employee who met his demise was not trained to stay clear of an oncoming trip 

of loaded coal cars. Assuming that I were to issue a decision favorable to 

MSHA in this case, I honestly and candidly believe that it will not trigger 

further enforcement of the training requirements for railroad employees 

directly against a railroad. Experience has shown that we will simply await 

the next contested case in which the issue is again placed in focus the next 

time there is an accident involving a railroad employee performing work on 

mine property. 

It occurs to me that the time has come for MSHA to meet the problem 

presented by the facts of this case head-on rather than to attempt to avoid 

the inevitable. MSHA's proposed remedy is an easy solution to its not to 

pleasant task of taking on a major railroad. It would be a simple matter to 

suggest that the contestant in this case notify the railroad that it is no 

longer welcome on its property until such time as it agrees to submit its 

employees to MSHA's training requirements. However, I believe that a more 

effective sanction would be to cite the railroad as a "mine operator" and 

61 
insist that it train its own employees. If the railroad refuses, then MSHA 

could impose the direct sanction provided for in section 104(g)(l) of the Act, 

and order the withdrawal of railroad employees which have not been trained 

according to MSHA's requirements. Section 104(g)(l) provides that: 

If, upon inspection or investigation pursuant to section 

103 of this Act, the Secretary or an authorized representative 

shall find employed at a coal or other mine a miner who has 

not received the requisite safety training as determined under 

section 115 of this Act, the Secretary or an authorized representative shall issue an order under this section which 

declares such miner be immediately withdrawn from the coal or 

other mine, and be prohibited from entering such mine until 

an authorized representative of the Secretary determines that 

such miner has received the training required by section 115 

of this Act. 

Section 104(g)(l) mandates the immediate removal from mine property of 

miners who have not received the requisite training mandated by section 115 

of the Act and the Secretary's regulations implementing those requirements. 

Section llS(a) requires each mine operator to establish its own training 

programs, subject to review and approval by the Secretary. Since an independent contractor is in fact a mine operator under the Act, and since MSHA 

has indicated it will treat railroads such as the Norfolk & Western on an 

equal basis with other operators, then it seems to me that MSHA should hold 

all such railroads accountable on an equal footing with other mine operators 

~nd the railroad should be required to train its own employees or suffer the 

consequences of having its untrained personnel barred from mine property 

through the sanction of a withdrawal order served directly on the railroad 

company. 

No. VA 80-95-R 

Citation No. 698510 

In this case the contestant is charged with a violation of sectipn 

77.1607(v) for the failure by its car dropper to keep two loaded cars under 

control in a manner to insure that the cars could be safely stopped "when 

needed." The cited standard states as follows: "Railroad cars shall be 

kept under control at all times by the car dropper. Cars shall be dropped 

at a safe rate and in a manner that will insure that the car dropper maintains a safe position while working and traveling around the cars. 11 

Inspector Clevinger testified that he issued the citation in question 

after being advised by plant supervisor Ronnie Cox during the course of the 

accident investigation that car dropper James Bennett could not control the 

trip of cars which were involved in the accident. Mr. Clevinger confirmed 

that he was present when certain post-accident car tests were conducted on 

Monday, February 11, but denied that the tests influenced his decision to 

issue the citation. He issued the citation because the cars were not under 

62 
control and his conclusion that they were not under control stemmed from the 

fact that the car dropper could not stop them (Tr. 83-85). Mr. Clevinger 

further confirmed that he had no way of knowing why the cars in question were 

not under control, and MSHA's counsel confirmed that the citation was issued 

because the car dropper couldn't stop the cars and had to jump off to protect 

himself (Tr. 129-130). 

Car dropper James Bennett described the procedure he followed in 

dropping the cars which were involved in the accident. After cleaning some 

snow off the tracks, throwing some switches, and consulting with several 

employees of the railroad as to where he should drop the cars, he was advised 

by Harman car dropper Bill McCoy that one of the loaded cars had no brakes 

and that it should be held .by another car. Mr. Bennett proceeded to position 

another car in place to hold back the one with no brakes and his intent was 

to drop and couple the cars onto the rear of a trip of cars which were ready 

to be pulled out by the locomotive. However, that trip had been moved out 

before he could drop and position the cars he was handling, and as he dropped 

them he picked up speed, attempted to apply pressure to the brakes, and when 

they would not hold, he jumped off the fast moving trip. He then proceeded 

to the area where he thought the cars had derailed and found the man who had 

been struck and killed by the runaway cars (Tr. 137-143). 

Mr. Bennett stated that he has 27 years experience as a car dropper, and 

indicated that during any 8 hour shift "anywhere from one to five cars" with 

faulty brakes are encountered. He indicated that the contestant is not 

equipped to make major brake repairs and that efforts at correcting such 

problems are limited to making brake adjustments (Tr. 144). He also confirmed that when he finds a car with defective brakes, he simply places it 

behind another one with good brakes and attempts to control both cars with 

the one with the best brakes (Tr. 151; 157-158). That is what he did in this 

case, but the front car would not hold the other cars behind it and they ran 

away and struck the rear of the train of cars which was being pulled away 

(Tr. 154-155). He is no longer employed with Harman and does not know whether 

the procedures for dropping cars has changed as a result of the accident (Tr. 

158). However, he did allude to the fact that when cars are found with 

defective brakes they are marked with chalk so as to alert the train crew 

that they need repair, and the railroad is responsible for repairs. Once 

they are repaired, the chalk marks are removed by painting over them, but he 

has observed empty cars returned to the tipple loading point with the chalk 

marks intact indicating that the brakes are still not repaired. These cars 

with defective brakes are logged in a record book and the railroad is supposed 

to take care of them (Tr. 157-162). 

Car dropper Bill McCoy, testified that at the time of the accident his 

duties involved the dropping and positioning of empty railroad cars at the 

tipple loading point. He confirmed that he often encountered empty cars 

being returned by the railroad with defective brakes and he indicated that he 

is not equipped to do anything but make minor brake adjustments and that the 

railroad has the responsibility of maintaining the cars which they own. He 

confirmed that cars with faulty brakes are controlled by positioning them 

63 
behind ones with good brakes, and he also confirmed the system of marking the 

defective cars to alert the railroad to make the necessary brake repairs 

(Tr. 163-169). He also stated that he has had to jump off a car because he 

could not stop it and indicated that when cars with defective brakes are 

found they are loaded anyway (Tr. 171), but he explained that they are 

usually positioned behind cars with good brakes (Tr. 174), and more than one 

car dropper is used to control the cars in these cases (Tr. 178). Mr. McCoy 

also stated that a car with defective brakes which is usually placed behind 

one with good brakes can usually be controlled by the car dropper, and that 

is the usual manner to "build trips." However, in this case the train had 

already pulled out and Mr. Bennett had no choice but to drop the cars down 

to a location where others could be positioned behind them (Tr. 182). 

Contestant's Vice-President Hurley testified as to the procedures 

followed by the car droppers at the preparation plant, explained the logistical difficulties in removing empty cars which are returned by the railroad 

with defective brakes, and he believed that the practice of placing cars 

behind others with good brakes is a safe practice as long as the car dropper 

does not attempt to drop one loaded car by itself. In short, the current car 

dropping procedures are essentially the same as those which were in effect 

at the time of the accident, except that more emphasis is now placed on those 

procedures, and in particular the fact that single cars should not be dropped 

and insuring that only a minimum number of cars are placed behind those with 

good brakes (Tr. 186-195). He also indicated that contestant has limited 

facilities for making brake repairs, was unsure as to the contestant's right 

to make such repairs, and his testimony regarding the braking problems is 

reflected in pertinent part as follows (Tr. 199): 

I don't know of anything that has been done on either 

side on what you're asking now. We're getting down to do 

any repairs to their brakes other than the fact that we mark 

the cars so that they can tell the ones that have the bad 

brakes or no brakes and we're just not in any position to 

dictate to them to what they do. We have had bad brakes and 

no brakes for as long as I can remember and as for as long 

as I can remember most of all coal mining companies drop 

their cars through under their loading points and drop them 

out on the lower end. There are few exceptions. And there's 

always been a problem with brakes that you've always had to 

have some kind of system to keep the good brakes and bad 

brakes together to affect the safe dropping. 

Tipple foreman David Ratliff testified that his duties include the 

supervision of car droppers and he was the shift foreman on the day of the 

accident in questiono He described the general procedures used for the 

loading and dropping of the railroad cars and confirmed the fact that cars 

with defective brakes are controlled by placing them behind cars with good 

brakes (Tr. 228-231). He confirmed that he checked the brakes on the cars 

involved in the accident and that he knew the brakes on one of the cars were 

bad before it was loaded because Mr. McCoy told him so (Tr. 234). When asked 

64 
to give his opinion as to what caused the cars to get away from Mr. Bennett, 

he stated that one car had bad brakes, one car had good brakes, and that 

"something did go wrong, the brakes failed. The brake would not hold the 

two cars" (Tr. 238-239). 

MSHA's theory in support of the violation is that the car dropper had 

to jump from the cars because he obviously could not control them, and since 

he could not control them a violation of section 77.1607(v) occurred; and, 

the fact that no one knows why the car dropper could not control the cars is 

immaterial (Tr. 130). Further, during the hearing, MSHA's counsel points to 

the fact that the contestant knew that one of the cars had faulty brakes, 

yet still dropped it with another loaded car behind it, and the trip could 

not be controlled (Tr. 131). 

Contestant's defense to the citation rests on its jurisdictional argument that the site of the accident was not on coal mine property and that it 

occurred at a site physically separate from the preparation plant and from 

the coal preparation function performed at the plant. This defense is 

rejected. The evidence establishes that the loaded cars involved in the 

accident had been dropped into place at the preparation plant where they were 

loaded with coal processed at that plant and were then being dropped into 

position by contestant's car droppers. While attempting to drop these cars, 

the car dropper lost control of the cars and he jumped from the cars to protect himself. The resulting run-away trip of loaded cars continued on their 

way until they came to rest after colliding with the trip of cars being 

transported from the coal mine property. In these circumstances, I conclude 

and find that the alleged violation occurred on coal mine property and that 

contestant was properly served with the citation. Further, on the basis of 

the evidence and testimony presented by MSHA in support of the citation, I 

conclude and find that the failure by the car dropper to maintain control of 

the trip of loaded coal cars constituted a violation of the cited mandatory 

safety standard and the citation is AFFIRMED. 

While I have affirmed the citation in this case, I take note of the fact 

that abatement was achieved by mine management giving a safety talk to its 

employees with regard to the proper procedures to be followed during the car 

dropping process, and the posting of those procedures on the mine bulletin. 

However, it would appear from the testimony and evidence adduced in this case 

that contestant is apparently still permitting railroad cars with defective 

brakes to be loaded and dropped into place behind cars with good brakes and 

that MSHA still accepts this procedure and the inspector apparently accepted 

it when he terminated the citation (Tr. 85-86). Although the official accident report does not specifically conclude that the use of cars with defective brakes contributed to the accident which occurred, it seems to me that 

the testimony of those persons directly involved in the incident warrants a 

further examination of the continued use of such cars in the loading and 

dropping process. Requiring a car dropper to maintain control over loaded 

coal cars at all times while such cars are dropped down a grade is one thing, 

but requiring him to do so with additional loaded cars with defective brakes 

coupled to the rear of the one on which he is riding defies logic. Again, 

65 
it occurs to me that some action should be taken against the railroad to 

insure that the defective brakes on their cars are repaired, or to insure 

the removal of such cars from service. 

j!d . . ~) /~ ~--' ,/--;p::JC.,z,·~ .. _/--,z1-z-·t-,£_,<~c,~ ~ George A. Kout as 

Administrative Law Judge 

Distribution: 

Robert M. Richardson, Esq., Richardson, Kemper, Hancock & Davis, 

602 Law & Commerce Bldg., Bluefield, WV 24701 (Certified Mail) 

John H. O'Donnell, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Clarence Barton, Esq., President, UMWA, Local 7025, Harman, WV 24618 

(Certified Mail) 

66 

. '" 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHUR¢H, VIRGINIA 22041 

'JAN 5 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADHINISTRATION (MSHA), 

Petitioner 

v. 

QUARTO MINING COMP ANY, 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No. LAKE 80-311 

A/O No. 33-02024-03093 

Powhatan No. 7 Mine 

19B1 

This case consists of a petition for the assessment of a civil 

penalty for one alleged violation of the Act. The operator has filed a 

motion to dismiss the proceeding and the Solicitor has filed a memorandum 

in opposition to the respondent's motion. For the reasons which follow 

respondent's motion is hereby GRANTED. 

Citation 1008730 was issued for an alleged violation of 30 CFR 

75.316. On September 8, 1980 a hearing was held in Secretary of Labor 

v. Nacco Mining Company, Quarto Mining Company and The North American 

Coal Corporation, LAKE 80-251, et al. in which the same provision of 

respondent's dust control plan at issue in this citation was litigated. 

In those cases a decision dated September 22, 1980 held invalid this 

provision of the dust control plan. The decision in LA.KE 80-251 is 

dispositive of this citation. 

ORDER 

Citation 1008730 is hereby VACATED and the petition to assess a 

civil penalty is hereby DISMISSED. 

Assistant Chief Administrative Law Judge 

Distribution: 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Bldg., 1280 East 9th St., Cleveland, 

OH 44199 (Certified Mail) 

John T. Scott III, Esq., Crowell & Moring, 1100 Connecticut Ave., N.W., 

Washington, DC 20036 (Certified Mail) 

67 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 5 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

QUARTO MINING COMPANY, 

Respondent 

DECISION 

Docket No. LAKE 80-360 

A/O No. 33-01157-03167 

Powhatan No. 4 Mine 

198t 

This case consists of a petition for the assessment of civil 

penalties for two alleged violations of the Act. The operator has filed 

a motion to dismiss the proceeding and the Solicitor has filed a memorandum 

in opposition to the respondent's motion. For the reasons which follow 

respondent's motion is hereby GRANTED. 

Citations 779679 and 825966 were issued for alleged violations of 

30 CFR 75.316. On September 8, 1980 a hearing was held in Secretary 

of Labor v. Nacco Mining Company, Quarto ~1ining Company and The North 

American Coal Corporation, LAKE 80-251, al. in which the same provision 

of respondent's dust control plan at issue in these citations was litigated. 

In thuse cases a decision dated September 22, 1980 held invalid this 

provision of the dust control plan. The decision in LAKE 80-251 is 

dispositive of these citations. 

ORDER 

Citations 779679 and 825966 are hereby VACATED and the petition to 

assess civil penalties is hereby DISMISSED. 

Administrative Law Judge 

Distribution: 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Bldg., 1280 East 9th St., Cleveland, 

OH 44199 (Certified Mail) 

John T. Scott III, Esq., Crowell & Moring, 1100 Connecticut Ave., N.W., 

Washington, DC 20036 (Certified Mail) 

68 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

QUARTO MINING COMPANY, 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No. LAKE 80-384 

A/O No. 33-01157-03170 

Powhatan No. 4 Mine 

This case consists of a petition for the assessment of a civil 

penalty for one alleged violation of the Act. The operator has filed a 

motion to dismiss the proceeding and the Solicitor has filed a memorandum 

in opposition to the respondent's motion. For the reasons which follow 

respondent's motion is hereby GRANTED. 

Citation 825974 was issued for an alleged violation of 30 CFR 

75.316. On September 81 1980 a hearing was held in Secretary of Labor 

v. Nacco Mining Company, Quarto Mining Company and The North American 

Coal Corporation, LAKE 80-251, et al. in which the same provision of 

respondent's dust control plan at issue in this citation was litigated. 

In those cases a decision dated September 22, 1980 held invalid this 

provision of the dust control plan. The decision in LAKE 80-251 is 

dispositive of this citation. 

ORDER 

Citation 825974 is hereby VACATED and the petition to assess a 

civil penalty is hereby DISMISSED. 

----~Pa~ Assistant Chief Administrative Law Judge 

Distribution: 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Bldg., 1280 East 9th St., ·Cleveland, 

OH 44199 (Certified Mail) 

John T. Scott III, Esq., Crowell & Moring, 1100 Connecticut Ave., N.W., 

Washington, DC 20036 (Certified Mail) 

69 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

WINDSOR POWER HOUSE COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 80-84 

A/O No. 46-01286-03035 

Beech Bottom Mine 

DECISION 

The above-captioned case is a civil penalty proceeding brought pursuant 

to section 110 1/ of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (hereinafter referred to as the Act). 

Inspector Charles Coffield issued Citation No. 811574 to Windsor Power 

House Coal Company (hereinafter Windsor) on May 11, 1979. The inspector cited 

a violation of 30 C.F.R. § 75.316 2/ and described the pertinent condition or 

practice as follows: -

1/ Section llO(i) of the Act provides: 

"(i) The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, the appropriateness of such penalty to the size 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. In proposing civil penalties under this 

Act, the Secretary may rely upon a summary review of the information available to him and shall not be required to make findings of fact concerning 

the above factors." 

2/ Section 303(0) of the Act, reproduced in the regu~ations as 30 C.F.R. 

§ 316, reads as follows: 

"A ventilation system and methane and dust control plan and revisions 

thereof suitable to the conditions and the mining system of the coal mine 

and approved by the Secretary shall be adopted by the operator and set 

out in printed form within ninety days after the operative date of this 

title. The plan shall show the type and location of mechanical ventilation 

70 
The ventilation, methane and dust control plan was not 

being followed in 6 West (028) section in No. 5 entry when 

coal was cut with a 15RV cutting machine and there was only 

approximately 1280 cubic feet of air per minute and 15 fm 

of mean air velocity reaching· the working face. No. 1 entry, 

3420 CFM, 29 FM; No. 4 entry, 2625 CFM, 22 FM; No. 6 entry., 

2520 CFM, 30 FM. * * * 3600 CFM, 35 FM required. 

Approximately 2 hours later, the inspector issued an order of withdrawal pursuant to section 104(b) of the Act on the grounds that "little or no effort" 

was made to abate the condition. 

Windsor has previously contested the issuance of both the citation and 

order in a review proceeding pursuant to section 105(d) of the Act (hereinafter, the contest proceeding). A decision was rendered in that proceeding 

by Judge Melick on March 10, 1980. It was found therein that Citation 

No. 811574 was properly issued and that Windsor was in violation of 30 C.F.R. 

§ 75.316 as alleged. 

Windsor petitioned the Commission for discretionary review of the decision rendered in the contest of Citation No. 811574, but the petition was not 

granted. Windsor did not pursue its right to obtain judicial review pursuant 

to section 106 of the Act. The decision rendered in the contest proceeding, 

therefore, became a final decision of the Commission. 

A petition for assessment of a civil penalty was filed by the Secretary 

of Labor (hereinafter the Secretary) on December 17, 1979. After assignment 

of the case on February 12, 1980, it was set for hearing in Charleston, 

West Virginia, on May 12, 1980, along with another subsequently settled case, 

Docket No. WEVA 80-68. On March 19, 1980, pending settlement negotiations, 

the cases were continued to April 18, 1980. On April 17, 1980, the cases 

were continued to June 18, 1980. Windsor stated that the parties were in 

the process of developing stipulations of fact and that no evidentiary hearing would be necessary. 

On June 13, 1980, Petitioner submitted a motion for partial summary 

disposition and on August 25, 1980, the parties submitted stipulations of 

fact. As grounds for the motion for partial summary disposition, counsel 

for Petitioner asserted the following: 

1. Under the authority of Reliable Coal Corp., 1 IBMA 

51 at 61, the "fact of violation" should not be litigable in 

more than one administrative proceeding. 

fn. 2 (continued) 

equipment installed and operated in the mine, such additional or improved 

equipment as the Secretary may require, the quantity and velocity of 

air reaching each working face, and such other information as the Secretary 

may require. Such plan shall be reviewed by the operator and the Secretary 

at least every six months." 

71 
2. In the case at bar, a Notice of Contest was filed 

and on December 12, 1979, an evidentiary hearing was held 

before Judge Melick on the underlying fact of violation. 

3. On March 10, 1980, a decision was issued by Judge 

Melick. affirming the fact of violation. 

4. On April 7, 1980, the Contestant filed a Petition 

for Discretionary Review with respect to Judge Melick's 

decision issued on March 10, 1980. 

5. The Petition was subsequently denied by the 

Commission. 

6. The Secretary does not oppose Windsor Power House 

Coal Company's right to an evidentiary hearing in the civil 

penalty proceeding, however, the proceeding should be limited 

to the six statutory criterion found in 105(B) of the Federal 

Mine Safety and Health Act of 1977, and not include another 

hearing on the fact of violation which has already been 

established. 

Windsor. filed its statement in opposition to Petitioner's motion for 

partial summary disposition on July 1, 1980. Windsor disagreed with the decision rendered in the earlier contest proceeding and desired to relitigate the 

fact of violation. 

The parties submitted stipulations of fact on August 25, 1980. These 

stipulations are as follows: 

1. At approximately 2:00 p.m. on May 11, 1979, Inspector 

Charles B. Coffield arrived at Respondent's Beech Bottom Mine. 

2. Shortly after 2:00 p.m. on May 11, 1979, Inspector 

Coffield and Roger Gaynor, representing Respondent, entered 

the mine and proceeded to the Six West section. 

3. The feeder for the Six West section, which was 

located approximately 240 feet outby the face of the No. 4 

entry, had broken at about 2:45 p.m. on the subject date.and 

was not repaired during the 8:00 a.m. to 4:00 p.m. shift on 

May 11, 1979. 

4. After the above-mentioned feeder had broken, the 

Six West· section crew went to the dinner hole, except for the 

bolters and the men repairing the feeder. 

5. While walking towards the face of the No. 5 entry in 

the Six West section at about 3:05 p.m., Inspector Coffield 

and Mr. Gaynor noticed an energized cutting machine in the 

No. 5 entry. 

72 
6. While in the No. 5 entry Inspector Coffield asked the 

section foreman what the air reading was when the cutting 

machine was cutting coal in the No. 5 entry and the foreman 

responded that the cutting machine had quit cutting just about 

1/2 hour ago (at approximately 2:45 p.m.). At that time there 

was 4100 cubic feet a minute (hereinafter "cfm") of air reaching the No. 5 face and about 4000 cfm of air reaching the face 

of the other entries. 

7. At no time during Inspector Coffield's inspection on 

May 11, 1979, did Inspector Coffield or Mr. Gaynor observe 

the cutting machine cutting coal in the Six West section of the 

Beech Bottom Mine. 

8. At no time during Inspector Coffield's inspection on 

May 11, 1979, did any of the parties observe the loading of 

coal in the Six West section of the Beech Bottom Mine. 

9. After observing the No. 5 entry Inspector Coffield 

and Mr. Caynor (hereinafter the "parties") proceeded to the 

No. 1 entry at approximately 3:20 p.m. and observed spot 

roof bolting in the last open crosscut between the No. 1 and 

2 entries. Spot roof bolting was concluded in the applicable 

area at approximately 3:25 p.m. 

10. After the above spot roof bolting was completed, no 

other equipment was used by the Six West section crew during 

the May 11, 1979, 8:00 a.m. to 4:00 p.m. shift. 

11. Except for two miners who were repairing the feeder, 

the 8:00 a.m. to 4:00 p.m. Six West section crew left the 

section between 3:30 and 3:40 p.m. on May 11, 1979. 

12. The afternoon shift at the Beech Bottom Mine begins 

at 4:00 p.m. and ends at 12:00 a.m. 

13. At about 3:45 p.m. on the subject date Inspector 

Coffield took an air reading in the No. 5 entry and determined that the quantity of air at the face of the No. S entry 

at the time was less than 3600 cfm and the mean air velocity 

reaching the face was less than 35 feet per minute 

(hereinafter "fm11 ). 

14. The parties then proceeded to the No. 1 entry where 

Inspector Coffield determined that there was an air quantity 

of 3420 cfm and an air velocity of 24 fm. 

15. After the Inspector took air readings in the faces 

of the No. 2 and 3 entries and determined that the quantity 

and velocity of air was greater than 3600 cfm and 35 fm, the 

73 
parties then proceeded to the No. 4 entry at approximately 

4:00 p.m. 

16. After Mr. Gaynor was relieved by Mr. Roxby in the 

No. 4 entry, Inspector Coffield determined that the air 

quantity and velocity in the face of the No. 4 entry was 

2625 cfm and 25 fm respectively and the air quantity and 

velocity in the face of the No. 6 entry was 2520 cfm and 

30 fm respectively. 

17. At the time Inspector Coffield took his air readings in the Six West section on May 11, 1979, because the 

miners working the day shift had left and the miners working 

the afternoon shift had not yet begun working, the equipment 

in the Six West section was not energized and no miners were 

working in the face area of any of the entries of the Six 

West section. 

18. Thereafter Inspector Coffield served upon Mr. Roxby 

Citation No. 811574 (a copy of which is attached hereto as 

Exhibit A) alleging a violation of 30 C.F.R. § 75.316, in that 

the ventilation plan was not being followed in the Six West 

(028) section in. the No. 5 entry where coal was cut with a 

15RV cutting machine, since there was only approximately 

1280 cfm of air and 15 fm mean air velocity in the working 

face; No. 1 entry 3420 cfm, 24 fm; No. 4 entry 2625 cfm, 

22 fm; No. 6 entry 2520 cfm, 30 fm. Inspector Coffield 

further alleged that the ventilation plan required 3600 cfm 

and 35 fm mean air velocity. 

19. On May 11, 1979, at 5:40 p.m., Inspector Coffield 

served upon Respondent Order of Withdrawal No. 811576 (a copy 

of which is attached as Exhibit B) alleging that little or no 

effort was being made to abate this violation in that air 

had not been increased in No. 5 and 6 entries of 6 West (028) 

section although 1 and 4 entries were increased to more than 

3600 cfm and 35 fm. 

20. Respondent's ventilation plan in effect at the time 

of the issuance of Citation No. 811574 provided in Item 24 on 

page 5 and Item 2 on page 6 that Respondent shall "maintain a 

minimum of 3000 cfm at each working face, where coal is being 

cut, mined, loaded or the roof bolted * * *·" A copy of the 

subject ventilation plan is attached hereto as Exhibit C. 

21. Respondent's subject ventilation plan stated in Item 1 

on page 12 in column form: 

Quantity air at face - 3600 cfm 

Mean air quantity - 35 fpm 

74 
The above constitutes the ventilation plan's only reference 

to mean air velocity. 

22. 30 C.F.R. § 75.301-1 specifies that "[a] minimum 

quantity of 3000 cubic feet a minute of air shall reach each 

working face from which coal is being cut, mined, or loaded or 

any other working face so designated by the District Manager, 

in the approved ventilation plan." 

23. 30 C.F.R. § 75.301-4(a) specifies that "except*** 

in working places where a lower mean entry air velocity has 

been determined to be adequate to render harmless and to carry 

away methane and to reduce the level of respirable dust to 

the lowest attainable level by the Coal Mine Safety District 

Manager, the minimum mean entry air velocity shall be 60 feet 

a minute in (1) all working places where coal is being cut, 

mined, or loaded from the working face with mechanical mining 

equipment * * *·" 

24. Beech Bottom Mine constitutes a coal mine, the 

products of which enter commerce or the operations or products 

of which affect commerce. Respondent, Windsor Power House 

Coal Company, operates and at all times pertinent to the citation and order at issue operated Beech Bottom Mine. Respondent and every miner employed in the above-stated mine are 

subject to the provisions of the Federal Mine Safety and 

Health Act of 1977. 

25. Jurisdiction of the above-captioned matter vests 

in the Federal Mine Safety and Health Review Commission. 

26. As of June 27, 1980, Beech Bottom Mine employed 

231 UMWA and 57 exempt and nonexempt employees. The mine, 

which is Respondent's only mine, produced a total of 

575,935 tons of coal during 1979. Windsor Power House Coal 

Company is a wholly-ovmed subsidiary of Ohio Power Company. 

Motion for Partial Summary Judgment 

The question presented by Petitioner's motion for partial summary 

judgment is whether the operator can litigate the fact of violation before 

one judge in a proceeding contesting the citation and order and later 

litigate the same fact of violation before another judge in a civil penalty proceeding. 

Petitioner's position is, in essence, that the fact of violation should 

not be litigable in more than one administrative proceeding. By reference, 

Petitioner sought application of the doctrines of res judicata or collateral 

estoppel to prevent Respondent from litigating the"°fact of violation twice. 

75 
Windsor advanced a number of arguments in opposition. Windsor urged, 

in substance, that the fact of violation alleged in the citation must be 

reviewed two times because 29 C.F.R. § 2700.73 in the Procedural Rules of 

the Commission states that an unreviewed decision of a judge is not a precedent binding on the Commission. While it is not a precedent binding on the 

Commission or its administrative law judges in future cases, discretionary 

review was denied by the Commission and the decision is, therefore, a final 

order of the Commission. Section 113(d)(l) of the Act provides that the 

decision of the administrative law judge of the Commission shall become the 

final decision of the Commission 40 days after its issuance unless within 

such period of time the Commission has directed that such decision shall be 

reviewed by the Commission. It does not follow that, because the decision 

is not a precedent binding on the Commission in future cases, the fact of 

violation in this case must be reviewed two times. By this assertion, 

Windsor apparently seeks a second trial on the issue of the fact of violation by application of the rules of legal precedent and stare decisis which 

are distinct from those regarding res and collateral estoppel. 

Windsor's assertion that the doctrines res judicata or collateral 

estoppel should not be applied in the instant action in which the judge's 

decision was unreviewed is unfounded. 

Respondent advanced a second argument in support of its contention that 

the doctrines of res judicata or collateral estoppel should not be applied 

in this proceeding by asserting that these doctrines preclude only matters 

which can be demonstrated to have been litigated and determined. '}_/ 

In the review proceeding, the judge determined that Windsor was in violation of 30 C.F.R. § 75.316. This precise question of the fact of violation is 

the one raised in the instant proceeding. The basis of the decision in the 

review proceeding was that Respondent failed to provide the amount of ventilation required by the ventilation plan. The time at which the air measurements 

were taken and the violation was found to have occurred was during the mining 

cycle even though coal was not actually being cut, mined or loaded, or the 

roof bolted. In view of the stipulations by the parties in the instant proceeding, the basis of any finding as to whether Windsor was in violation of 

the same regulation, 30 C.F.R. § 75.316, would also be whether Respondent 

was required to maintain the required amount of ventilation even though coal 

3/ Windsor cited Russell v. Place, 24 L.Ed 214 (1876), which involved a 

suit for patent infringement, and in which the U.S. Supreme Court stated: 

"It is undoubtedly settled law that a judgment of a court of competent 

jurisdiction, upon a question directly involved in one suit, is conclusive 

as to that question in another suit between the same parties. But to this 

operation of the judgment it must appear, either upon the face of the record 

or be shown by extrinsic evidence, that the precise question was raised and 

determined in the former suit. If there be any uncertainty on this head~­

record * * * the whole subject matter of the action will be at large, 

and open to a new contention, unless this certainty be removed by extrinsic 

evidence showing the precise point involved and determined." [Emphasis added.] 

76 
was not actually being cut, mined, or loaded or the roof bolted at the time 

the air measurements were taken. 

Windsor argued, however, that the precise determination whether coal 

was being "cut, mined, loaded or the roof bolted" had not been made in the 

earlier proceeding. It asserted the following: 

. WPHCCo contested the validity of the subject citation 

and the order based thereon on the basis that no coal was 

being "cut, mined, loaded or the roof bolted11 at any of the 

subject face areas at the time of the issuance of the subject 

citation and order and that the locations cited by the Inspector did not constitute "working faces." * * * Subsequently 

on March 10, 1980, Judge Melick issued his decision, in which 

he determined that the readings were taken at "working faces". 

However, while Judge Melick determined that "there was no 

active cutting or loading of coal in any of the face areas", 

he made no determination as to whether coal was being "cut, 

mined, loaded or the roof bolted" at the subject locations 

at the time of the issuance of the subject citation. 

[Footnote omitted.] 

In a footnote, Windsor referred to page 2 of the decision. On page 2 of 

the decision, the judge stated at the beginning of the last paragraph that: 

The air readings cited herein were taken in the Nos. 1, 

4, 5, and 6 entries of the 6 West section of the mine by 

Inspector Coffield beginning around 3:45 p.m., on May 11, 

1979. At that time there was no active cutting or loading 

of coal in any of the face areas although mining equipment 

was being moved about. 

It is possible that these sentences, taken out of context, provide the 

basis for Windsor's allegation that a litigable issue still exists. However, 

not only had the judge in that decision clearly held that Windsor was in 

violation of 30 C.F.R. § 75.316, but it is also clear that he had not ignored 

or overlooked the issue of roof bolting in his rationale. The judge also 

stated on page 2 of his decision that: 

It is apparent, however, that Windsor has reached an 

erroneous conclusion because of its misplaced reliance upon 

only a small segment of the definition of "working face" 

lifted out of context. "Working face" is defined in 

30 C.F.R. § 75.2(g)(l) as "any place in a coal mine in 

which work of extracting coal from its natural deposit in 

the earth is performed during the mining cycle." The issue 

to be resolved then is not whether the inspector's air readings were taken while coal was being extracted, but rather 

whether the readings were taken at places "in which work of 

extracting coal from its natural deposit in the earth [was] 

performed during the mining cycle." 

77 
After finding that the readings were taken beginning around 3:45 p.m., 

the judge stated: 

The operator concedes that the full sequence of conventional mining operations continued in the cited entries until 

2:45 p.m. It appears that at that time the feeder had broken 

down and, as a result of that and an anticipated shift change 

at 3:45 p.m., the various operations were being phased out. 

Even after 2:45 p.m., however, the evidence shows that further 

work was performed with the admitted purpose of setting up the 

entries for production to resume as soon as the feeder was 

repaired. The uncontradicted evidence shows that various 

equipment used in the mining cycle was energized at least 

until 3:45 p.m., that a roof-bolting machine continued to 

spot roof bolts (the process of replacing bolts) at the inby 

corner of the No. 1 entry until at least 3:15 or 3:20 p.m., 

that the cutting machine which had completed cutting the 

No. 5 entry at around 2:45 p.m., was on its way to cut the 

No. 4 entry and that the loading machine was waiting to 

operate in the No. 6 entry. 

The decision, therefore, disposes of the issue of roof bolting. It does 

not hold or even intimate that the decision was reached because roof-bolting 

operations, which continued until at least 3:15 or 3:20 p.m., were still in 

progress at 3:45 p.m., when the air readings were taken by the inspector.!!_/ 

4/ Even if the judge in that decision had not taken cognizance of the issue 

of roof bolting and after due consideration found a violation on a different 

theory, there would still be no litigable issue in this case as to whether 

roof bolting was in progress at the time the air readings were taken because 

of the stipulations of the parties. The parties have effectively disposed 

of this issue by stipulating that spot roof bolting was concluded in the 

applicable area at approximately 3:25 p.m. (Stipulation No. 9) and air readings by the inspector were commenced at about 3:45 p.m. By these stipulations read in context, the parties have therefore agreed that roof bolting 

was concluded before the air measurements were taken. There is, therefore, 

nothing left to litigate on this issue. 

Moreover, Windsor is aware that there was never a litigable issue as to 

whether roof bolting was actually in progress at the time the air readings 

were started. In footnote 2 to its allegation that the judge had not made 

findings relative to roof bolting at the time the air readings were taken, 

Windsor stated: "Because the Secretary never alleged that the roof was being 

bolted at the subject faces at the applicable times, for the purposes of this 

case the "cut, mined or loaded" language in the ventilation plan can be considered as identical to that in 30 CFR 75.301-1 and 30 CFR 75.301-4(a)." 

While this acknowledges that no such issue on which the judge was 

required to make findings existed, it is not a correct statement. Although 

the additional requirement in the ventilation plan for ventilation while the 

roof was being bolting was not raised as a factual issue in this case, 

that requirement may have a bearing on whether ventilation is required 

only at those times, continuously, or during the entire mining cycle. 

78 
Although the .judge did not find that coal was actually being cut, mined or 

loaded or the roof bolted at the time the air readings were taken, he stated: 

Within this framework, I have no difficulty concluding 

that when Inspector Coffield took his air readings each of 

the cited entries was a place in which work of extracting 

coal from its natural deposit in the earth was performed 

during the mining cycle. Thus, the readings were taken at 

"working faces." 30 C.F.R. § 75.2(g)(l). Under the circumstances, the underlying citation in this case was properly 

issued and the subsequent order of withdrawal was therefore 

valid. [Emphasis added.] 

A reading of sections 303(b) and 303(c)(l) of the Act (30 C.F.R. §§ 75.301 

and 75.302(a)) 2f by themselves might lead one to conclude that line brattice 

5/ Sections 303(b) and 303(c)(l) of the Federal Mine Safety and Health Act 

of 1977 (hereinafter, the Act) provide: 

"(b) All active workings shall be ventilated by a current of air containing not less than 19.5 volume per centtnn of oxygen, not more than 

0.5 volume per centum of carbon dioxide, and no harmful quantities of other 

noxious or poisonous gases; and the volume and velocity of the current of air 

shall be sufficient to dilute, render harmless, and to carry away, flammable, 

explosive, noxious, ,and harmful gases, and dust, and smoke and explosive 

fumes. The minimum quantity of air reaching the last open crosscut in any 

pair or set of developing entries and the last open crosscut in any pair or 

set of rooms shall be nine thousand cubic feet a minute, and the minimum 

quantity of air reaching the intake end of a pillar line shall be nine 

thousand cubic feet a minute. The minimum quantity of air in any coal mine 

reaching each working face shall be three thousand cubic feet a minute. 

Within three months after the operative date of this title, the Secretary 

shall prescribe the minimum velocity and quantity of air reaching each 

working face of each coal mine in order to render harmless and carry away 

methane and other explosive gases and to reduce the level of respirable 

dust to the lowest attainable level. The authorized representative of the 

Secretary may require in any coal mine a greater quantity and velocity of 

air when he finds it necessary to protect the health or safety of miners. 

Within one year after the operative date of this title, the Secretary 

or his authorized representative shall prescribe the maximum respirable 

dust level in the intake aircourses in each coal mine in order to reduce 

such level to the lowest attainable level. In robbing areas of anthracite 

mines, where the air currents cannot be controlled and measurements of 

the air cannot be obtained, the air shall have perceptible movement. 

"(c)(l) Properly installed and adequately maintained line brattice or 

other approved devices shall be continuously used from the last open crosscut of an entry or room of each working section to provide adequate ventilation to the working faces for the miners and to remove flammable, explosive, 

and noxious gases, dust, and explosive fumes, unless the Secretary or his 

authorized representative permits an exception to this requirement, where 

79 
or other approved devices are required to be continuously used to provide 

3,000 cubic feet of air a minute to each working face. 30 C.F.R. § 75.301-1, 

however, provides as follows 6/: "A minimum quantity of 3,000 cubic feet a 

minute of air shall reach each working face from which coal is being cut, 

mined or loaded and any other working face so designated by the District 

Nanager, in the approved ventilation plan." [Emphasis added.] The specific 

issue in the earlier proceeding was not whether Windsor was in violation of 

section 75.305-1 for failure to provide 3,000 cubic feet of air per minute 

at each working face from which coal is being cut, mined or loaded. It was 

whether Windsor failed to provide 3,000 cubic feet per minute of air at working faces designated by the District Manager in the approved ventilation plan. 

If the ventilation plan specified that 3,000 cubic feet of air per minute must 

reach all working faces, the operator would be obligated to provide 3,000 cubic 

feet of air per minute to those faces as defined in section 75.2(g)(l), !·~·, 

any place in a coal mine in which work of extracting coal from its natural 

deposit in the earth is performed during the minirig cycle. As Judge Melick 

held, that was the net effect of the provision specifying the places where 

3,000 cubic feet of air per minute were required in Windsor's approved 

ventilation plan. 

Respondent's ventilation plan in effect at the time of the issuance of 

Citation No. 811574 provided that Respondent shall "maintain a minimum of 

3000 cfm at each working face, where coal is being cut, mined, loaded or the 

roof bolted * * *·" [Emphasis added.] Where roof bolting was used to support 

the roof in the Beech Bottom Mine, the times and occasions when Respondent 

fn. 5 (continued) 

such exception will not pose a hazard to the miners. ·when damaged by falls or 

otherwise, such line brattice or other devices shall be repaired immediately." 

[Emphasis added.] 

Section 303(b) of the Act has been reproduced in the regulations as 

30 C.F.R. § 75.301. Section 303(c)(l) of the Act has been reproduced in the 

regulations as 30 C.F.R. § 75.302(a). 

!!._/ 30 C.F.R. § 75.301-4(a), the other. regulation cited by Windsor in its 

footnote, concerns the velocity of air and provides as follows: 

"(a) On and after March 30, 1971, except in working places using a 

blowing system as the primary means of face ventilation or in working places 

where a lower mean entry air velocity has been determined to be adequate to 

render harmless and carry away methane and to reduce the level of respirable 

dust to the lowest attainable level by the Coal Mine Safety District Manager, 

the minimum mean entry air velocity shall be 60 feet a minute in (1') all 

working places where coal is being cut, mined, or loaded from the working 

face with mechanic.al mining equipment, and (2) in any other working place 

designated by the Coal Mine Safety District Manager for the district in 

which the mine is located in which excessive amounts of respirable dust are 

being generated by any type of mechanical mining equipment." [Emphasis 

added.] 

80 
was required to maintain 3,000 cfm at each working face closely correspond to 

the sequence of events which comprised the mining cycle found to be in effect 

at Respondent's mine. In his decision, Judge Melick found as follows: 

The term "cycle" is defined in the Dictionary of Mining, 

Mineral and Related Terms, U.S. Department of the Interior 

(1968), as the complete sequence of face operations required 

to get coal. In conventional mining, as followed in the 

Beach Bottom Mine, the sequence consists of supporting the 

roof, cutting the face, drilling the face, shooting the face, 

and loading and hauling the coal. In order for the face to 

be a "working face," it is not therefore necessary that work 

of extracting coal be performed at all times. Cf. Peggs Run 

Coal Company, Inc., PITT 73-6-P, March 29, 1974-,-aff'd., 

3 IBMA 421, December 6, 1974. The definition clearly contemplates that the mining cycle is a continuing process in spite 

of temporary delays caused by shifting equipment or mechanical 

break down. 

Except for the use of the words "loading and hauling" used by the judge 

in the contest proceeding in describing the mining cycle instead of the word 

"loaded" used in Respondent's approved ventilation plan, the mining procedures 

described a~e identical. Since coal may be hauled away from a face area 

during all of the phases of the cycle, the actual hauling at the face area 

might be considered for purposes of definition or construction of the ventilation plan to be an inconsequential part of the ''sequence of face operations 

to get coal." Thus, the words in Windsor's ventilation plan might be construed 

to be identical for all practical purposes with the definition of the mining 

cycle. It follows that it could be held that Windsor's ventilation plan 

required 3,000 cfm at the working face--defined as any place in a coal mine 

in which work of extracting coal from its natural deposit in the earth is 

performed during the mining cycle--throughout the entire mining cycle. 

Windsor asserted that "the administrative law judge in his March 10, 

1980, decision did not determine whether the cutting, mining, and loading 

inactivity at the subject face areas at the time of the issuance of the 

subject citation should deem the citation and order based thereon invalid, 

even though this issue was raised and discussed both orally and in writing 

prior to the issuance of the judge's decision." This assertion is unfounded. 

The judge expressly stated that "at that time there was no active cutting 

or loading of coal in any of the face areas although mining equipment was 

being moved about." It is clear that he did not find a violation because 

coal was actually being cut, mined, loaded or the roof bolted. The basis 

of the decision was that the air readings were taken at places in which the 

work of extracting coal from its natural deposit in the earth was performed 

during the mining cycle although not while coal was actually being cut, 

mined, loaded or the roof bolted. The requirement of the ventilation plan 

was not suspended by a temporary interruption of cutting, mining, loading 

or roof bolting. 

81 
In view of the above, Respondent's assertion that Judge Melick did not 

make certain determinations critical to the finding of the fact of violation 

is rejected. 

Unlike the 1977 Act, the Federal Coal Mine Health and Safety Act of 1969 

(hereinafter, the 1969 Act) made no provision for the review of abated violations and no provision for the review of unabated notices of violation other 

than that made incidental to the review of the reasonableness of the time 

allowed for abatement. In Reliable Coal Corp., 1 IBMA 51 (June 10, 1971), 

which held that there was no provision in the 1969 Act for review of such 

violations prior to the institution of a civil penalty proceeding, the 

Interior Board of Mine Operations Appeals stated: 

[W)e find no merit in Reliable's contention that the interrelationship of the statutory provisions of sections 104, 

105(a)(l) and 109(a)(3), supports its view that an operator 

has a statutory right of review of the "fact of violation" 

in a section 105(a) proceeding. As we interpret these provisions of the Act, and as we held in Freeman, the Act does 

not preclude a determination of this issue in a section 105(a) 

proceeding where it is raised as an element of the reasonableness of time allowed for abatement. Indeed, in such case, a 

decision under section 105(a) on the issue of reasonableness 

of time must inherently incorporate a determination that the 

violation did or did not occur -- and such determination, if 

final, would be res judicata within the Department. Thus, 

the "fact of violation" would not be litigable in more than 

one administrative proceeding. 

Reliable serves to show that the application of the doctrine of res 

judicata was appropriate under the 1969 Act. There is even more reason for 

the application of res judicata or collateral estoppel in the instant case. 

Under the 1977 Act, provision is expressly made for the review of the "fact 

of violation" of a citation in a review case, even when the violation is 

abated, Energy Fuels Corp., 1 MSHC 2013 (May 1, 1979). 

In Energy Fuels Corporation, the Commission, in holding that the operator is permitted to contest the citation immediately upon its issuance, 

stated: 

If the citation lacked special findings, and the operator otherwise lacked a need for an immediate hearing, we 

would expect him to postpone his contest of the entire citation until a penalty is proposed. Even if he were to immediately contest all of a citation but lacked an urgent need for 

a hearing, we see no reason why the contest of the citation 

could not be placed on the Commission's docket but simply 

continued until the penalty is proposed, contested, and ripe 

for hearing. The two contests could then be easily consolidated for hearing upon motion of a party or the Commission's 

82 
or the administrative law judge's own motion. If the operator has an urgent need for a hearing, the Secretary could 

make it more likely that the two contests would be tried 

together by quickly proposing a penalty. If a penalty is 

contested, and the hearing on the citation is already underway, consolidation would still be possible. Moreover, even 

if consolidation were not possible, it has not yet been 

suggested that principles of repose, such as res judicata, or 

collateral estoppel, could not be employed to prevent multiple 

hearings on the same issues. We are unwilling to eschew so 

early in the history of the 1977 Act these possible avenues 

of accommodation. 

The proceeding in which Citation No. 811574 and Order No. 811576 were 

contested had already been completed, therefore, consolidation with this 

civil penalty proceeding was not feasible. Although section 105(a) of the 

Act requires the Secretary to propose a penalty within reasonable time after 

the termination of an inspection or investigation, compliance with the assessment procedures prescribed in Part 100 of Title 30 Code of Federal Regulations 

requires a considerable amount of time. Under the regulations all citations 

which have been abated and all closure orders, regardless of termination or 

abatement, are 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. These regulations prescribe an initial review of the citation 

or order, formula computations, conferences or the submission of additional 

information for consideration, issuances of notice of proposed penalty and 

notices of contest. In addition to the time required to perform some of these 

steps, periods of time such as 10 days, 33 days and 30 days are allowed 

between some of the steps. In addition to those delays, 29 C.F.R. Part 100 

provides that the Secretary has 45 days from the receipt of the notice of 

contest to file a proposal for a penalty with the Commission. Even after 

this, the Respondent has 30 days to file an answer, the parties have 60 days 

from the filing of the proposal of a penalty to complete discovery and 10 days 

to oppose each motion, and notice to all parties must be given at least 

20 days before the date set for hearing. 

In actual practice, it has developed that considerable time is required 

between the issuance of the citation and the assignment of the civil penalty 

proceeding for trial. The instant case was not assigned to a judge until 

February 12, 1980, 2 months after the contest proceeding hearing had been 

held in December 1979. It was not apparent that res judicata or collateral 

estoppel was an issue until several months later,-after the case had been 

continued, when the Secretary filed its motion for pretrial summary 

disposition. 

Since consolidation was not feasible by the time the existence of the 

review case was disclosed in the record of the instant case, the remaining 

alternatives are (1) to make two separate determinations of the same fact 

of violation or (2) to apply the doctrines of collateral estoppel or res 

83 
judicata. 7/ Under the generally recognized rules of law, these doctrines 

are applicable in such cases to eliminate wasteful, time-consuming and 

possibly disruptive repetitive decisions. The application of the rules of 

collateral estoppel or res judicata in the instant case would not contravene 

any overriding public interest or result in manifest injustice. The application of these doctrines should not, therefore, be qualified or rejected as 

urged by Windsor. This narrow ruling in regard to the issue of "fact of violation" is that Respondent is estopped from having the fact of violation 

determined for a second time under the circumstances of this case. 

In view of the above, Petitioner's motion for partial summary disposition is granted. A violation of 30 C.F.R. § 75.316 has been established. 

Assessment of Civil 

Since Windsor was in violation of a mandatory safety standard, the Act 

requires that it be assessed an appropriate civil penalty. In assessing 

this civil penalty, consideration must be given to the six criteria contained 

within section llO(i) of the Act. The facts serving as basis for a determination of those statutory criteria, with the exception of the effect of a penalty on the ability of the operator to remain in business and the operator's 

history of previous violations, were stipulated by the parties. In the 

absence of indication in the record otherwise, it is found that the penalty 

assessed herein will not affect the ability of Windsor to remain in business. 

The amount of the penalty assessed will be as if the operator had no history 

of previous violations. 

The Beech Bottom Mine was above average in size with 288 employees 

producing 575,935 tons of coal during 1979. 

In the absence of evidence to the effect that the operator knew or 

should have known of the inadequate quantity and velocity of air in the Six 

West section on i1ay 11, 1979, it is found that the record will not support 

a finding of negligence on the part of Respondent. The parties stipulated 

that the foreman stated that the cutting machine had quit cutting about 

one-half hour previously and that there were 4,100 cfm of air reaching the 

No. 5 face and about 4,000 cfm of air reaching the face of the other entries. 

The times of the air measurements and who made the measurements upon which 

the foreman's statement was based were not stipulated. 

a tnote to argument, states: 

"Considerable confusion seems to exist regarding when the doctrine of 

res judicata is applicable and when the doctrine of collateral estoppel. 

Collateral estoppel, unlike res judicata, does not necessitate an identity 

of causes of action. See IB Moore~s Federal Practice 0.411[2] at 3777. Both 

doctrines are discussed herein." 

If confusion exists, it need not be infused into the instant proceeding. 

The doctrine of collateral estoppel is clearly applicable. The doctrine of 

res judicata may also be applicable. 

84 
As noted in the stipulations, at the time the inspector took his 

readings, the miners working the 8:00 a.m. to 4:00 p.m. shift had left the 

section and those working the evening shift had yet to arrive. Two miners 

remained on the section to repair the feeder during the pertinent time 

period. Two of the faces were ventilated in accordance with the plan. A 

third face received only slightly less than the required amount of air. The 

ventilation at the remaining three faces was substantially less than that 

required by the plan. There is no indication that, because of the reduced 

air volume or velocity, methane had been allowed to accumulate or, in the 

absence of any actual cutting, mining, loading or roof bolting that there 

was any mining activity which would be likely to cause or increase the 

liberation of methane. Although the operator was in violation of 30 C.F.R. 

§ 75.316 for failure to provide the prescribed volume and velocity of air 

for ventilation, there is no indication that such failure for an undetermined, but possibly a short time, actually failed to dilute, render harmless, 

and carry away, flammable, explosive, noxious, harmful gases, dust, smoke, 

and explosive fumes. It is accordingly found that the probability of an 

accident resulting in injury was low. 

In the absence of any explanation why the required volume of 3,000 cfm 

was not restored in entries 5 and 6 within the time set by the inspector 

for abatement, it is found that Respondent did not demonstrate good faith in 

attempting to achieve rapid compliance after notification of the violation. 

In consideration of the findings of fact and conclusions of law contained 

in this decision, an assessment of $50 is appropriate under the criteria of 

section 110 of the Act. 

ORDER 

It is ORDERED that Respondent pay the sum of $50 within 30 days of the 

date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Michael C. Bolden, Esq., Federal Mine Safety and Health Administration, 

U.S. Department of Labor, Office of the Solicitor, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

David M. Cohen, Counsel for Respondent, American Electric Power Service 

Corporation, P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

85 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

MATHIES COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Contest of Order 

Contestant 

JAN 5 

Docket No. PENN 79-89-R 

Respondent 

Order No. 620637 

June 20, 1979 

Mathies Mine 

DECISION 

Appearances: Michel Nardi, Esq., Mathies Coal Company, Pittsburgh, 

Pennsylvania, for Contestant; 

Barbara K. Kaufmann, Esq., Office of the Solicitor, 

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

for Respondent. 

The United Mine Workers of America (UMWA) filed an 

answer but did not enter an appearance at the hearing. 

Before: Judge Stewart 

1981 

In the course of a ventilation saturation inspection at the Mathie& 

Coal Company's Mathies Mine, the inspector issued Order No. 0620637 pursuant 

to section 104(d) of the Federal Mine Safety and Health Act of 1977 (hereinafter, the Act). 1/ The operator filed a timely challenge to this order pursuant to section lOS(d) of the Act. Subsequent to the hearing in this 

matter held in Pittsburgh, Pennsylvania, on February 5, 1980, Contestant 

and Respondent Mine Safety and Health Administration submitted posthearing 

briefs. Proposed findings and conclusions therein inconsistent with or 

immaterial to this decision are rejected. 

1/ Originally, on June 20, 1979, the inspector purported to have issued 

Order of Withdrawal No. 620637 pursuant to section 104(a) of the Act. Later, 

on the same day, he issued a modification of Order No. 620637 showing the 

order to have been issued pursuant to section 104(d)(2). 

86 
In issuing Order No. 620637, Inspector Wolfe cited 30 C.F.R. 

§ 75.1002-l(a) and alleged the existence of the following condition or 

practice: 

The nonpermissible S & S battery charger located between 

the 6 and 7 entries at the 26 + 48 split on the 14 Butt 

19 1/2 face section (I.D. 055) was 95 feet, as measured 

with a standard measuring tape, from the line of pillar being 

extracted. The foreman in charge stated that he had seen the 

charger earlier in the shift. 

Section 75.1002-l(a) reads as follows: 

Electrical equipment other than trolley wires, trolley 

feeder wires, high voltage cables, and transformers shall 

be permissible, and maintained in a permissible condition 

when such electrical equipment is located within 150 feet 

from pillar workings, except as provided in paragraphs (b) 

and (c) of this section. 

The factual details established at the hearing are set forth below in the 

stipulations by the parties, the synopsis of the exhibits, and the synopsis 

of the testimony of each witness called by the parties. 

Stipulations 

At the hearing, the parties stipulated that the Mathies Mine is owned 

and operated by Mathies Coal Company; that both are subject to the jurisdiction of the Mine Safety and Health Act of 1977; that the Administrative law 

Judge has jurisdiction over this proceeding; that inspector Okey Wolfe was 

at all times relevant hereto an authorized representative of the Secretary 

of Labor; that true and correct copies of the order and modification were 

serverl upon the operator in accordance with the provisions of the Act; that 

copies of the order and modification are authentic and may be entered into 

evidence as authentic docl.Il11ents; that the citation or the violation was 

timely abated; that the battery charger in question was not permissiqle 

electrical equipment; that the battery charger was located 95 feet from the 

pillar line as specified in the order; and that the subject battery charger 

was deenergized and unplugged from the load center. 

Exhibits 

MSHA Exhibit 1 is Order of Withdrawal No. 062063 7. MSHA Exhibit 2 

is a modification of that order stating that the "type of action" should 

be 104(d)(2) rather than 104(a). 

Contestant's Exhibit 1 is a wiring diagram for the battery charger. Contestant's Exhibit 2 is a drawing of 14 butt 19-1/2 face section showing the 

general location of the gob, the bleeder entry, the battery charger, and the 

load center. 

87 
of MSHA Witnesses 

Okey Wolfe--Federal Coal Mine Inspector, MSHA 

The inspector visited the Mathies Mine on June 20, 1979, for the purpose of making a ventilation inspection. While conducting his inspection 

on the 14 butt 19-1/2 face section, he found the battery charger located 

between the sixth and seventh entries at the 26+48 switch, a distance of 

95 feet from the outside corner of the pillar. This was a retreat mining 

section and pillar-extraction was in progress. The inspector took measurements and talked to the section foreman in charge of the day shift. 

William Lendvei, the section foreman, stated that he had seen the charger 

during that shift prior to the commencement of mining and that the charger 

had been in this location at least for a day or two. By questioning foreman 

Lendvei, the inspector determined that mining had been done on the same 

pillar on the midnight shift. He informed Mr. Matson, the company representative traveling with him that day, that an order had been issued and 

in discussing the violation, Mr. Matson concurred that a violation did exist 

by stating, "They (the company) had been caught with their pants down." 

The notation 11 104(a) 11 on the order of withdrawal was a mistake on the 

part of the inspector. He usually issues a 104(a) citation and in filling 

out the form without thinking, he wrote "104(a)" rather than "104(d)(2)." 

When he discovered the violation, he informed the foreman that an order was 

going to be issued. After Inspector Wolfe discovered his mistake on the 

ride back to the office, the order was modified by inspector Thomas H. 

Devault to show that the type of action was a 104(d)(2). 

The battery scoop has to be charged periodically depending upon the 

amount of use it receives. The battery charger was set up as a charging 

station but it was not hooked up. In order for it to be put to use, it 

would be plugged into the power center and energized. The scoop is used 

for cleaning up sections. It does a better job of getting up against the 

ribs to get the loose coal than the miner itself does. The inspector has 

seen it used to haul supplies from outer areas to working places if needed. 

It is possible for mining operations to take place without the us~ of a 

scoop and coal could be mined without using a scoop even once during a 

shift. The scoop was not being operated on the section when the inspector 

arrived and he does not recall seeing it in use until the order was issued 

when it was used to move the charger. 

The charger was not energized and the cable was wound up at the charger. 

The load center was located a little over a block of coal outby the charg 

station, a distance of a little more than 96 feet. The distance between the 

center lines of the block entries was 96 feet. Give or take a couple of 

yards, the battery charger was 120 feet from the battery charger. To be 

energized, the charger must be plugged into the load center. The load 

center was energized. There were no batteries in the charger. 

The continuous-mining machine is permissible equipment which can be 

used inby the last open crosscut or in return areas. Permissible equipment 

·is so sealed that, where there is a chance of arcing or sparking from the 

88 
components of the electrical equipment, it will prevent the escape of flame 

into what might possibly be a methane atmosphere. Equipment is certified by 

the Secretary as to whether it is permissible or nonpermissible. Under section 75.1002-1, the idea is to keep any type of nonpermissible equipment 

that could serve as an ignition source more than 150 feet away from any 

pillar areas. It is not uncommon for methane to build up in a pillar and 

a large flow of air can force methane out of the gob area into the working 

place. In order to have a fire or explosion, there must be an ignition 

source. The effect of a roof fall within 150 feet of the gob where methane 

was liberated on a deenergized continuous-mining machine and a deenergized 

battery charger would be similar. The methane detected by the inspector in 

the outlying area was very minimal. He could not attest to what was back in 

the pillar. The battery charger does not have gasoline in it. 

The inspector did not measure the length of the charger cable. In his 

opinion, there was enough cable to reach the power center but he did not 

stretch it out. If the cable had been too short, the charger could be energized by moving the power center, moving the charger, or possibly using a 

jumper cable. The input voltage on the charger was 440 volts AC. The scoop 

batteries can be charged by removing the batteries or by leaving the tray on 

the scoop and charging the batteries with it on. The inspector saw no other 

battery-charging station on the section and did not know where the next 

nearest battery-charging station was located. 

In referring t9 the distance between the battery charger and the load 

center marked on Contestant's Exhibit 2, the inspector stated that he was not 

sure that they were "quite that far out, but it's close." The distance was 

about 100 feet. He acknowledged that it was possible that the cable was in 

fact too short. The load center was active at the time providing power to 

other operating machinery. 

Testimony of Contestant's Witnesses 

Allen M. Newcoe--Manager of Purchasing and Materials Control, Eastern Region, 

Consolidation Coal Company 

A permissible enclosure is one so constructed that it eliminates the 

escape of hot gases. It protects against the admission of combustible materials into the area in which electrical equipment is operated in case there 

is an internal explosion. If a piece of equipment is not being operated, 

the permissibility would not be questioned. 

When exposed to a roof fall within 150 feet of a pillar line, there 

would be a great hazard from energized, nonpermissible equipment Rnd less of 

a hazard from energized permissible equipment. If i:hey were both deenergized, 

there would be no hazard present. Contestant's Exhibit 1 is a schematic 

diagram of a battery charger with a 440-volt input and a 20-volt output. A 

battery charger's function is to charge batteries. 

To energize the battery charger, it is plugged into a 440-volt source, 

the switch on the load center turned on, and the switch on the battery 

charger activated. He knows of no other equipment used in the section that 

89 
utilizes batteries requiring charging in this particular battery charger. 

TI1e load center is not permissible equipment. The charger serves.as a power 

source for the mining face equipment and is continually energized during 

mining operations. The function of the scoop is to clean up or to transport 

materials to the mining junction. The length of time that a charge for a 

battery will last is based on the use and load it is carrying. Normally, it 

will operate a full shift without being recharged. There would be no purpose in energizing the battery charger other than for charging the battery 

to the scoop. A roof fall on the battery charger in its deenergized, 

unplugged state would be no different from a roof fall on a lunch bucket. 

Mr. Newcoe works at the offices of Consolidation and was not at the mine 

to observe the actual work activities of the section. The scoop would probably not be operated continuously for 8 hours. The plug is inserted by hand, 

normally without the use of tools, by plugging it in and spinning the cap. 

Bruce Matson--General Assistant Mine Foreman 

Mr. Matson escorted Inspector Wolfe on a "blitz" inspection which was 

being made by a number of Federal inspectors. When Mr. Wolfe told him that 

the battery charger was not within permissible distance from the pillar line, 

Nr. Matson replied that it was inoperable and the cable was wrapped up on the 

charger. The battery charger was not being used at the time. The scoop was 

not running at the time but it could have been operated. The battery charger 

was better than one block from the load center, a distance of over 100 feet. 

The cable itself was not as long as the block. There were no batteries in 

the general vicinity of the battery charger. The charger must be operated 

in intake air because of the hydrogen gas generated. The section was mined 

from left to right and there was mining on the last block on the right side 

of the section. Mining the next pillar line, starting with block No. 73, 

would establish a new pillar line. The belt line, the track, and the load 

center would be moved back. 

The load center had been moved back and energized. The unenergized 

ba charger was disconnected so it could be moved back. The cable was 

wrapped up on the charger so it could be handled without damage to the cable 

when it was picked up and transported to another charger station. It would 

be necessary to erect another charger station. It was eventually moved one 

break out by. 

The scoop was not used continuously. It was run once or possibly twice 

each shift. It would probably last 3 or 4 days or possibly the entire week. 

It was used only for the primary supplies. Assuming one block per day on 

three shifts, it would take a full week to mine the pillar line. If the 

battery had been charged before mining was commenced, the charged battery 

would last until mining had been completed. Mining had been in progress 

4 work days, going into the fifth day. There had been some trouble with 

the scoop when the battery itself would not hold a charge but people had 

been called in to repair it. 

90 
Mr. Matson does not recall making a statement that the company had been 

caught with its pants down. It has been common mining practice when moving 

the belt and the tracks back from an area that has been mined, to cut the 

trolley wire and leave that portion of the trolley wire within a 150-foot 

distance. He 1 had never received a citation for doing so notwithstanding the 

provisions of section 75.1002. There are five working sections under his 

jurisdiction at the mine. He does not visit each section every day but he 

receives reports of adverse conditions. When the scoop had difficulty in 

holding a charge, it would run down sooner than it normally would. Mining 

in the last block had started on the midnight shift. They were not mining 

when he got there. 

It was his understanding that section 75.1002 applied to energized equipment and he did not think that having a battery charger within 150 feet of the 

gob was a violation when it was deenergized. A new charging station was constructed and the battery charger moved back. One-half hour or less was 

required to do so. It had been more than a week prior to the 20th when there 

had been trouble with the battery charger and it had been repaired. He does 

not know the days it was out of service and the days it was in service. He 

believes there was a fault in the charger itself. Instead of an 8-hour 

charge, it was only giving it a 3- or 4-hour charge. He does not know if the 

batteries were replaced in the scoop. The problem had first become apparent 

several weeks previously. It was holding its charge on the 20th. Mining in 

entry No. 6 was on the last block, block No. 71. Block No. 72 was to remain. 

The belt and track were not as shown on Exhibit 0-2. They had been moved 

back two blocks 4 or 5 days before the date of the citation. The load center 

was also moved back at that time. 

The distance from the battery charger to the load center was more than 

one block. From center-to-center. a block would be 96 feet. The distance would 

probably be another 50 feet. The load center was not in the intersection as 

shown in Exhibit 0-2. Ordinarily, the belt, track and load center are moved 

back about once each week. He does not know of his own knowledge how far the 

charger was from the load center. 

The battery charger could not have been used from the load center for 4 

or 5 days. He believes the scoop could go that long without a charge. He 

assumes the charger station had not been built because they were mining coal. 

To build a charger station, six posts are set and the area enclosed with tin 

shee After an air current is directed to the location, the charger can 

be moved to the stati.on. The trouble with the charger had been eliminated 

at least a week before the (d)(2) order. From indications on Exhibit 0-2, 

the battery charger was used 4 or 5 days previously when the belt, track, 

and load center had been moved. That is the normal mining cycle. 

William Lendvei--Section Foreman 

Mr. Lendvei worked the 8 to 4 shift on June 20 on the 14 butt 19-1/2 

section. He went into the mine with Mr. Wolfe and the UMWA safety representative. After walking through the section at about 8:45 a.m., he started 

mining. After mining five or six buggies, the inspector told him to stop 

91 
mining because the charger was in violation of the law. He was told he had 

30 minutes to move it, so he shut down. He believed that so long as it was 

deenergized it would not create a hazard and was surprised that this was a 

violation of the law. Tne battery charger was not energized and the cable 

was coiled next to it. The cable would not reach the load center. He had 

been mining there about 4 days and did not use the battery charger during 

that time. It could not be used with the cable wrapped up. He did not 

measure the cable but knew from previous times that it is less than one 

block--96 feet. The distance from the battery charger to the load center 

was 1-1/2 blocks. He does not recall the last time the battery was charged. 

He believed the battery charger would be moved when there was a breakdown or 

delay in mining. He would not have used it at that location. The scoop was 

used to transport posts and supplies. He does not know the extent of the 

use of the scoop on the evening or midnight shift. The scoop is not used 

to clean up. 

Valid of Order No. 620637 

An order of withdrawal may be issued pursuant to section 104(d)(l) 2/ 

if, given the requisite underlying citation, an authorized representative of 

the Secretary finds a violation and finds such violation to be caused by 

unwarrantable failure of the operator to comply. Once an order has been 

issued pursuant to section 104(d)(l), an order pursuant to section 104(d)(2) 

may be issued upon observation by an authorized representative of a 

"similar" violation. That is, a 104(d)(2) order is properly issued if an 

authorized representative observes a violation and finds that such violation 

was caused by an unwarrantable failure to comply on the part of the operator. 

Mathies urges that: (1) a deenergized battery charger located within 

150 feet of the gob is not a violation of 30 C.F.R. § 75.1002-1; (2) Contestant's actions did not constitute an unwarrantable failure to comply with 

2/ Section 104(d)(l) of the Act reads 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 by such violation do not cause imminent danger, such violation is of 

such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall include such 

finding in any citation given to the operator under this Act. If, during the 

same inspection or any subsequent inspection of such mine within 90 days 

after the issuance of such citation, an authorized representative of the 

Secre finds another violation of any mandatory health or safety standard 

and finds such violation to be also caused by an unwarrantable failure of 

such operator to so comply, he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by such violation, except 

those persons referred to in subsection (c) to be withdraW11 from, and to be 

prohibited from entering, such area until an authorized representative of 

the Secretary determines that such violation has been abated." 

92 
30 C.F.R. § 75.1002-1; and (3) the condition as it existed did not significantly and substantially contribute to the cause and effect of a mine sa 

hazard. 

It is undisputed that the battery charger in question was not permissible equipment, that it was located within 95 feet of the pillar line as 

specified in the order and that it was deenergized and unplugged from the 

load center. 

In order to energize the battery charger, it was necessary to plug it 

into the zed load center and then activate it by switching it on. The 

load center, which was not permissible equipment, was located 1-1/2 blocks, 

or approximately 150 feet, outby the battery charger. The battery charger 

cable was less than 96 feet in length and was too short to reach the load 

center. It had been coiled and placed on the battery charger. 

The battery charger was used primarily to charge the batteries of the 

scoop, a of equipment used to haul posts and supplies from the track 

entry to the particular mining area. The scoop was not used on a continual 

basis during operations. The length of time a charge would last was 

dependent upon the use of the scoop and the load carried. The last occasion prior to June 20, 1979, on which the scoop batteries had been recharged 

was not established. 

Violation of 30 C.F.R. § 75.1002-1 

In pertinent part, section 75.1002-l(a) that electrical equipment, be permissible and maintained in a permissible condition when such 

equipment is located within 150 feet from pillar workings. The battery 

charger was non-permissible and located about 95 feet from the 

pillar line. This condition was in violation of the standard as alleged. 

Mathies' that the condition was non-hazardous and, therefore, 

not a violation of the standard 3/ is rejected on two grounds. In the first 

place, the condition was hazardous and, secondly, there is nothing in the 

standard to support the contention that the violation thereof is premised on 

the existence of a hazard. 

A b 

tion. 4/ The 

charger could 

charger which may be energized is a potential source of igniunrebutted testimony of the inspector established that the 

have been energized by moving the load center or by use of 

3/ :Mathies asserted that: "Clearly, the drafters of the regulations contemplated the use of nonpermissible equipment within the 150-foot distance from 

the pillar line, since the purpose of the standard is to protect against 

explosive hazards. Consequently, a battery charger's location does not 

become relevant with respect to the subject mandatory standard until it is 

energized, add the element of potential hazard." 

4/ }~thies 1 of a deenergized charger to a lunch pail is specious 

for this very reason. A lunch pail is not a piece of electrical equipment 

which might be energized or activated. 

93 
a jumper or extension cable. Mathies contention that it would have been 

necessary to move the charger outby its location if it were to be used is 

rejected. Since the charger could be energized and used at its location 

within 150 feet from the pillar workings, the hazard against which section 

75.1002-l(a) is directed clearly existed. 

Even if the conditon was not hazardous, it would have been a violation 

of section 75.1002-1. Section 75.1002-1 contains certain qualifications to 

the application of the mandatory standard but the element of hazard is not 

one of them. In essence, Mathies' contention that there is no violation if 

the proscribed condition is not a hazard is an attempt to add an exception 

to the regulation. 

Some regulations promulgated under the Act in Title 30, Code of Federal 

Regulations, Section 75, do contain requirements that must be met only when 

there is an unsafe condition. Where certain explosive gases are liberated 

accidentally, a report must be made and ventilation and control measures 

instituted to reduce the accumulations (section 75.301-8). Exposed moving 

machine parts which may cause injury to persons must be guarded (section 

75.1722(a). Safety chains, suitable locking devices, or automatic cut-off 

valves are required at connections of machines to certain high pressure hose 

lines or between certain high pressure hose lines where connection failure 

would create a hazard, (Section 75.1730(e)). Protective clothing or equipment and face-shields or goggles must be worn when welding, cutting, or working with molten metal or when other hazards to the eyes exist from flying 

particles. (Section 75.1720(a)) 

Section 75.1002-1, however, is clearly not premised on the existence 

of a hazard. The qualifying language therein prescribes no exception for 

an unenergized battery charger. In view of the clear language of the standard, no basis exists for qualifying the application of the standard by 

reading into it a requirement that the condition be hazardous. 

Effect of Subsequent Modification 

When the inspector discovered the battery charger, he issued an oral 

order of withdrawal. He also issued MSHA Form 7090-3 on which he clearly 

marked 11 0rder of Withdrawal." The form, as issued, clearly indicated that 

the order of withdrawal was directed at the 14 butt 19-1/2 face section. The 

order of withdrawal was issued at 10:15 a.m. At 11:05 a.m., after the battery charger had been moved outby so that it was more than 150 feet from 

the pillar line, the inspector noted on the same form that the order was 

terminated. 

On the form there is a space with the heading "Type of Action." In this 

space, the inspector inadvertently inserted the characters "104(a)." He 

explained that he did this "without thinking" because he issues more 104(a) 

citations than orders of withdrawal during his inspections. After the 

94 
inspector became aware of his mistake on his way to the office, he had 

inspector Thomas H. DeVault issue a modification to show that the "type of 

action" was 104(d)(2). 5/ On the order of withdrawal, the inspector had 

noted in the space marked "Initial Action11 that the underlying order, 

No. 231726, was the one issued on November 14, 1978. 

In McCoy Elkhorn Coal Corporation v. Secretary of Labor, Mine Safety and 

Health Administration, Docket No. KENT 80-243-R (October 31, 1980) (Judge 

Steffey), the Administrative Law Judge held that the inspector's order was 

not rendered invalid by the fact that he mistakenly wrote an incorrect citation number in the "initial action line." In its contest of an order, the 

contestant argued that the inspector did not correct the reference to the 

incorrect citation until it had already filed its notice of contest. Contestant also contended that section 104(h) of the Act does not permit the 

inspector to modify an order after he has terminated it. In rejecting these 

arguments, the Judge stated in part: 

In Old Ben Coal Co., 2 FMSHRC 1187 (1980), the Commission affirmed an administrative law judge's decision which 

had affirmed four orders of withdrawal which indicated,that 

they had been issued under section 104(c)(l) of the Federal 

Coal Hine Heal th and Safety Act of 1969 when, in fact, they 

should have shown that they were issued under section 

104(c)(2) of the 1969 Act. The judge had held that the 

incorrect reference to section 104(c)(l) was no more than a 

clerical error which did not prejudice Old Ben in any way. 

The Commission stated t\iat it agreed with the judge that Old 

Ben was not prejudiced because Old Ben did not show how its 

defense to a 104(c)(2) order would differ from its defense 

to a 104(c)(l) order* * * It appears to me that an inspector 

ought to be able to correct a mistake regardless of whether 

he discovers it before or after a Notice of Contest has been 

filed or whether he discovers it after he has already terminated the order. 

There was never any doubt that Inspector Wolfe issued an order of 

withdrawal and that it was issued under subsection 104(d)(2) of the Act. 

Mathies' contention that the order was issued invalidly in that section 

104(a) was cited on the order and the order had been abated 4 hours prior to 

its modification to cite section 104(d)(2) is without merit. Although there 

5/ Section 104(d)(2) of the Act reads as follows: 

"If a withdrawal order with respect to any area in a coal or other mine 

has been issued pursuant to [section 104(d)(l) of the Act], a withdrawal 

order shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the existence in such mine of 

violations similar to those that resulted in the issuance of the withdrawal 

order under [section 104(d)(l)] until such time as an inspection of such 

mine discloses no similar violations. Following an inspection of such mine 

which discloses no similar violations, the provisions of paragraph (l) shall 

again be applicable to that mine." 

95 
was a clerical error on the form on which the order was issued, it was clear 

from the beginning that the inspector issued an order of withdrawal and not 

a citation. This error was discovered and corrected on the same day that 

the order was issued. There is no evidence whatever that Mathies was misled 

or prejudiced by the clerical error. 

Significant and Substantial Contribution to the Cause and Effect of a Mine 

Safety Hazard 

Mathies asserted that the condition as it existed did not si3nificantly 

and substantially contribute to the cause and effect of a mine safety hazard. 

Although the Secretary did not so allege, the record establishes that the 

condition did significantly and substantially contribute to the cause and 

effect of a mine safety hazard. 

Section 104(d)(2) does not condition the issuance of an order of withdrawal on a finding that the condition found significantly and substantially 

contributed to the cause and effect of a mine safety hazard. There is no 

such gravity requirement for orders of withdrawal issued under section 

104(d)(2). See International Union, United Mine Workers of America v. Kleppe, 

532 F.2d 1403, 1407 (D.C. Cir. 1976). Even if there had been such a requirement, it would have been met in this case. As previously discussed in this 

decision, a hazard was clearly present. 

The battery on the scoop would last for several hours. The length of 

time was dependent upon the load and the usage. With no use, the charge 

might lpst for several weeks; given normal use, it might last for a week. 

Although there had been a time when the battery would hold a charge for 

only 3 or 4 hours, the problem had been corrected before June 20. On 

June 20, mining had been in progress for 3 or 4 days and the scoop had been 

used. The date of the last recharge was not specifically established. 

If the battery were to run down before the pillar line was completed, 

there was no way to recharge it on the section other than to use the battery 

charger. Al though Mr. Lendvei, the section foreman, testified that he would 

not have used the charger in the location where it was found by the inspector, 

there would have been no operable scoop on the section to move the charger if 

the battery had been run down due to hard use or recurring fault. If the 

battery had run down, the charger more than likely would have been used to 

charge the battery by someone on one of the three shifts. Even if the charger had been dragged outby by manual labor or means other than the scoop, 

there is no assurance that it would be moved beyond the 150-foot distance 

from the gob or that a split of intake.air would have been provided to carry 

away the hydrogen gas generated during charging of the batteries. The charger 

could have been energized at the location in which it was found by the inspector through use of an extension or jumper cable, or even by moving the power 

center. Such use of the charger could have had disastrous results. It is 

evident that the violation found by the inspector was serious. Certainly, 

the location of the battery charger was not a mere technical violation that 

posed no risk to any miner as asserted by Mathies. 

96 
Unwarrantable Failure 

Mathies asserts that it did not unwarrantably violate 30 C.F.R. 

§ 75.1002-1 because the section foreman could not reasonably be expected to 

know that the existence of a deenergized battery charger within the 150-foot 

distance was a violation of the law since it was his understanding that the 

law only applied to battery chargers that were in fact being used. 

Section Foreman Lendvei was aware that the battery charger was not outside the 150-foot zone prescribed by law. That is, he had knowledge of the 

condition which was in violation of the standard. His misapprehension of 

the law does not excuse his failure, or that of Contestant, to comply with 

the standard. The prohibition was clearly spelled out in the regulations. 

Exceptions in addition to those which might be set forth in the standard 

should not have been presumed. 

The record indicates that the battery charger was not moved outby to 

a safe location because the operator was mining coal and, although it might 

have been moved if production were to be temporarily halted due to a breakdown, the failure to move the battery charger was a deliberate omission on 

the part of the operator. Any inconvenience or possible loss of production 

that might result from the very short time required to use the scoop to 

transport the battery charger and erect a new battery-charging station in 

no way serves as an excuse for failure to comply with the mandatory standard. 

Contestant also asserted in its brief that: 

With respect to the issue of unwarrantability, it is well 

settled that a violation of a mandatory safety standard is 

negligence per se. Therefore, if the conditions cited in the 

above Order are found to constitute a violation of the duty 

imposed by the mandatory standard, ordinary negligence can be 

conclusively presumed. Negligence per se, however, will not 

satisfy the element of unwarrantability otherwise every failure 

of the operator to fulfill the duty imposed by the mandatory 

safety standard could constitute an unwarrantable failure, 

Zeigler Coal Company, 7 IBMA 280, (1977). 

An unwarrantable failure to comply [has been defined by 

the Interior Board of Mine Operations Appeals as] the failure 

of the Operator to abate a condition or practice constituting 

a violation of mandatory standard which the Operator knew or 

should have known existed Zeigler Coal Company, 7 IBMA 280, 

295, IBMA Docket No. 74-37 (1977) (emphasis added). 

97 
It is important to note that the Board's decision in 

Zeigler Coal Company, supra, discussed at length the legislative history and case law applications of the unwarrantability 

requirements of Section 104(c) of the 1969 Act. This section 

of the law remains basically unchanged under the 1977 Act. !!_/ 

The violation of a mandatory safety standard is not negligence per se. 

There may be a violation of a mandatory safety standard without negligence 

on the part of the operator. However, the record in this case has established negligence and an unwarrantable failure to comply well beyond the 

definition enunciated in Zeigler. Since the violation existed as alleged 

and it was the result of an unwarrantable failure on the part of Mathies 

to comply with section 75.1002-1, the order of withdrawal was properly 

issued pursuant to section 104(d)(2) of the Act. 

ORDER 

It is ORDERED that Order No. 0620637 is AFFIRMED and that the abovecaptioned contest of order is hereby DISMISSED. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Michel Nardi, Esq., ~filthies Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 (Certified Mail) 

James H. Swain, Esq., Qffice of the Solicitor, U.S. Department of labor, 

Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

Joyce A. Hanula, Legal Assistant, United Mine Workers of America, 

900-15th Street, NW., Washington, DC 20005 (Certified Mail) 

6/ The 1977 Act adopted the safety and health standards then 

existing under the 1969 Act with the proviso ,that "any new 

standards [promulgated] in areas covered by existing standards cannot reduce existing levels of protection." Sen. 

Rep. No. 95-181, 1977 U.S. Code Cong. and Admm. Nes 3401 at 

3411. 

98 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

) 

JAN 5 

SECRETARY OF LABOR, MINE SAFETY AND ) CIVIL PENALTY PROCEEDING 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) DOCKET NO. WEST 79-241 

) 

v. ) 

) MSHA CASE NO. 05-00296-03013 

C.F. & I. STEEL CORPORATION ) 

) 

Respondent. ) MINE: Allen 

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

DECISION AND ORDER 

APPEARANCES: 

BEFORE: 

Jerry R. Atencio, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Office Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

Phillip Barber, Esq. 

Wellborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

For the Respondent 

Judge Jon D. Boltz 

STATEMENT OF THE CASE 

1981 

This proceeding arose through initiation of an enforcement action 

brought pursuant to section 105 of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. 0978) [hereinafter cited as "the 1977 

Act" or "the Act"]. On September 13, 1979, Petitioner, the Secretary of 

Labor, Mine Safety and Health Administration (MSHA) (hereinafter "the 

Secretary"], filed with the Commission his Proposal for Penalty. 

Respondent, CF & I Steel Corporation (hereinafter "CF & I"], duly 

contested the proposal for penalty by filing an answer with the Commission 

on October 16, 1979. Pursuant to notice, a hearing was held in Pueblo, 

Colorado, on June 17, 1980. 

99 
FINDINGS OF FACT 

1. On February 20, 1979, an authorized representative of the 

Secretary conducted a spot inspection for liberation of excessive 

quantities of methane at CF & I's Allen Mine pursuant to section 103(i) 

of_ the Act. 

2. The inspector conducted tests and took samples to determine 

whether any excessive methane accumulations were present. On the basis of 

methane detector readings showing concentrations of 1 to 2% methane, three 

vacuum bottle air samples were taken along the conveyor belt line of a 

particular section. The samples, upon analysis, subsequently revealed 

methane accumulations in amounts of 1.42 to 1.86%. 

3. Order of Withdrawal No. 387764 was issued for excessive 

concentrations of methane pursuant to the imminent danger provision of the 

Act, section 107(a). The order of withdrawal encompassed the entire 

section. 

4. At the time the imminent danger withdrawal order was issued, and 

immediately prior thereto, C F & I was doing all it possibly could do to 

rectify the situation as it existed. No production was ongoing. Only 

authorized personnel were within the subject area. No power was energized 

in the section at the time the order was issued or prior to its 

termination. The only work being performed were attempts to establish a 

greater volume of ventilation. 

5. The accumulation of methane in the conveyor belt line was caused 

by a lack of adequate ventilation. The inadequate flow of air was due to 

an improperly secured check curtain which regulated the air intake to the 

section. 

6. Even in this condition of disrepair, sufficient quantities of air 

were being delivered to the last open crosscut in the belt line section to 

prevent the concentration of methane from increasing to the explosive 

range. The explosive range of methane in air is in concentrations of 5 to 

15%. 

7. The inspector did not mark the "CITATION" box on the order 

of withdrawal issued to C F & I. The "ORDER OF WITHDRAWAL" box was 
marked with an "X" and "107-a" was indicated as the "TYPE OF ACTION" 

undertaken. Under "PART AND SECTION" the inspector listed "75.326" 

(30 CFR 75.326).1 

ISSUES PRESENTED 

The following issues are presented for determination: 

1. Whether the conditions which existed in C F & I's Allen 

Mine, at the time the order of withdrawal was issued, constituted an 

imminent danger? 

2. Whether a violation of a mandatory safety and health 

standard, capable of supporting a penalty, occurred at C F & I's Allen 

Mine? 

1/ §75.326 Aircourses and belt haulage entries_. 

(STATUTORY PROVISIONS] 

In any coal mine opened after March 30, 1970, the entries used as 

intake and return air courses shall be separated from.belt haulage 

entries, and each operator of such mine shall limit the velocity of the 

air coursed through belt haulage entries to the amount necessary to 

provide an adequate supply of oxygen in such entries, and to insure 

that the air therein shall contain less than 1.0 volume per centum of 

methane, and such air shall not be used to ventilate active working 

places. Whenever an authorized repr·esentative of the Secretary finds, 

in the case of any coal mine opened on or prior to March 30, 1970, 

which has been developed with more than two entries, that the 

conditions in the entries, other than belt haulage entries, are such as 

to permit adequately the coursing of intake or return air through such 

entires, (a) the belt haulage entries shall not be used to ventilate, 

unless such entries are necessary to ventilate, active working places, 

and (b) when the belt haulage entries are ''not necessary to ventilate 

the active working places, the operator of such mine shall limit the 

velocity of the air coursed through the belt haulage entries to the 

amount necessary to provide an adequate supply of oxygen in such 

entries, and to insure that the air therein shall contain less than 1.0 

volume per centum of methane. 

101 
DISCUSSION 

"Imminent danger" is legislatively defined in section 3(j) of the Act 

to mean " ... 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 [.] 11 

30 U.S.C. § 803(j). The term has also received judicial construction. 

In Eastern Assoc. Coal Corp. v. Interior Bd. of Mine Op. App., 491 

F.2d 277 (7th Cir. 1974), the Court of Appeals construed a virtually 

identical definition contained in the Federal Mine Health and Safety Act of 

1969, 30 U.S.C. § 801 et seq. (1976) (amended 1977). In that case, the 

Court stated that 11 • .-. a:Il"imminent danger exists when the condition or 

practice observed could reasonably be expected to cause death or serious 

physical harm to a miner if normal mining operations were permitted to 

proceed in the area before the dangerous condition is eliminated." Id. at 

278. Similarly, the Fourth Circuit construed an ". , . 'imminent danger' 

as being a situation in which a reasonable man would estimate that, if 

normal operations designed to extract coal in the designated area should 

proceed, it is just as probable as not that the feared accident or disaster 

would occur ·before elimination of the danger." Freeman Coal Mining Co. v. 

Interior Bd. of Mine Op. App., 504 F.2d 741, 745 (4th Cir. 1974). 

Both courts affirmed decisions of the former Interior Board or Mine 

Operations Appeals which incorporated into the definition of imminent 

danger the clause: 11 • • • if normal mining operations were permitted to 

proceed in the area before the dangerous condition is eliminated." Eastern 

Associated Coal Corporation, 2 IBMA 128, 136 (1973). Accord, Freeman Coal 

Mining Corporation, 2 IBMA 197, 212 (1973). That proviso was not included 

in the legislative definition formul.ated by Congress, but all of the courts 

which have considered the issue have agreed that the Board legitimately 

inserted the clause. The courts' reasoning was that unless miners were to 

engage in production, there would be no ongoing exposure to the dangerous 

condition. See, McCoy Elkhorn Coal Corporation v. Secretary of Labor, Mine 

Safety and Health Administration (MSHA), 2 FMSHRC 1143, 1148 (1980). 

The conditions which existed at CF & I's Allen Mine on February 20, 

1979, did not constitute an imminent danger under the definitions to which 

I have just referred. Prior to issuance of the withdrawal order, C F & I 

had voluntarily removed all miners from the area. No production was in 

progress. No power was energized in the affected section. The only work 

being performed were attempts to establish a greater volume of ventilation, 

102 
and that work was being performed by those persons who would have been 

authorized to be in the area had a section 107(a) order of withdrawal been 

in effect. 2 

There was no evidence of an intent to return miners to production 

until the situation had been rectified. Had such an intent been 

demonstrated by C F & I, my conclusion would be different. In issuing the 

order of withdrawal, I believe that the inspector was properly motivated in 

his concern that miners not be returned to the affected area until the 

condition had been corrected. However, at the moment that the order of 

withdrawal was issued, no imminent danger then existed. Therefore, I find 

that the order is invalid and should be vacated. 

Even after an imminent danger order of withdrawal has been vacated, 

the violation alleged therein may still be the subject of a civil penalty 

proceeding. Secretary of Labor, Mine Safety and Health Administration 

(MSHA) v. Van Mulvehill Coal Co., Inc., 2 FMSHRC 283, 284 (1980). "That 

allegation, unless itself properly vacated, survives a vacation of the 

order it is contained in, and, if proven, the assessment of a penalty under 

section 110 is required. 11 Secretary of Labor, Mine Safety and Health 

Administration (MSHA) v. Island Creek Coal Company, 2 FMSHRC 279, 280 

(1980). I must, therefore, determine whether a violation of a mandatory 

safety and health standard, capable of supporting a penalty, occurred at 

C F & I's Allen Mine. 

2/ Section 104(c) of the Act reads: 

"(c) The following persons shall not be required to be withdrawn 

from, or prohibited from entering, any area of the coal or other mine 

subject to an order issued under this section: 

"(1) any person whose presence in such area is necessary, in 

the judgment of the operator or an authorized representative of the 

Secretary, to eliminate the condition described in the order; 

11 (2) any public official whose official duties require him to 

enter such area; 

"(3) any representative of the miners in such mine who is, in 

the judgment of the operator or an authorized representative of 

the Secretary, qualified to make such mine examinations or who is 

accompanied by such a person and whose presence in such area is 

necessary for the investigation of the conditions described in the 

order; and 

"(4) any consultant to any of the foregoing." 

103 
Under the above-mentioned precedents, whether Order of Withdrawal 

No. 387764 was properly issued pursuant to section 107(a) of the Act is 

not relevant to the asses~ment of a penalty for any proven violations cited 

in that order. The underlying allegation contained in the order provides a 

sufficient basis for any potential penalty assessment. It follows that 

whether the 107(a) order contained a legally sufficient 104(a) citation is 

likewise irrelevant to the penalty assessment determination. Therefore, it 

is not necessary that I rule on the significance of the fact that the 

"CITATION" box on the order was not marked and how that fact affects the 

sufficiency of the order as a section 104(a) citation. 

The mandatory safety and health standard allegedly violated was 

30 CFR 75.326 (see footnote, page 3). The Allen Mine was opened prior to 

March 30, 1970, therefore only the second portion of section .326 is 

applicable. Clause (b) of that section contains a req.uired standard with 

respect to methane accumulations. Clause (a) contains no similar 

provision. In order for the methane standard contained in ·clause (b) to be 

applicable, it must be demonstrated that the belt haulage entries were not 

necessary to ventilate the active working plac~s. No evidence is contained 

in the record regarding the necessity vel non of utilizing the belt haulage 

entries for ventilation of active working places. Therefore, I have no 

basis upon which to determine whether clause (a) or clause (b) is relevant. 

Consequently, without evidence establishing the relevancy of the cited 

section, I cannot sustain the violation of 30 CFR 75.326 alleged in Order 

of Withdrawal No. 387764. 

Another factor of importance in my decision is the fact that the 

inspector who issued the 107(a) withdrawal order did not himself believe 

that C F & I had violated 30 CFR 75.326. On redirect examination, in 

response to a question regarding his opinion as to whether or not there was 

a violation, the inspector stated: 

"I felt that in this instance, since the company had 

recognized the condition and were taking steps to 

rectify it, I didn't feel personally there was a 

vi o 1 at ion of . 3 2 6 . " (Tr . 4 7) . 

This admission by the inspector provides further grounds for my refusal to 

sustain the violation of 30 CFR 75.326 alleged in Order of Withdrawal 

No. 387764. 

CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and subject matter of th.is proceeding. 

2. The conditions which existed at C F & I's Allen Mine on 

February 20, 1979, did not constitute an irmninent danger at the moment that 

Order of Withdrawal No. 387764 was issued. 

104 
3. The order was invalid and should be vacated. 

4. The alleged violation of 30 CFR 75.326 contained in Order of 

Withdrawal No. 387764 was not proven by a preponderance of the evidence. 

5. The allegation was not sustained and should be vacated. 

ORDER 

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

Order of Withdrawal No. 387764 and the violation alleged therein are hereby 

VACATED. This matter is hereby DISMISSED WITH PREJUDICE . 

.,..-· ).. ' ? 

)g.t.'~i~-·~=---·_· - Administrative'-f:aw Judge 

DISTRIBUTION: 

Jerry R. Atencio, Esq. 

/ Office of the Solicitor 

United States Department of Labor 

1585 Federal Office Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip Barber, Esq, 

Wellborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

105 
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OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN s ' :.~·, 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

JEWELL RIDGE COAL CORPORATION, 

Respondent 

Docket No. VA 80-77 

A.O. No. 44-02690-03017 V 

Jewell 18, Lower Jewell Mine 

DECISION 

Appearances: 

Before: 

Catherine M. Oliver, Esq., Office of the Solicitor, U.S 

Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Gary W. Callahan, Esq., Lebanon, Virginia, for Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of civil penalty 

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

30 U.S.C. § 801 et seq., the "Act," alleging one violation of a safety regulation. The generai issue is whether the Jewell Ridge-Coal Corporation 

(Jewell Ridge) has violated the cited regulation and, if so, the appropriate 

civil penalty to be paid for the violation. An evidentiary hearing was held 

in Abington, Virginia, on November 5, 1980. 

The citation at issue (No. 696012) charges one violation of the standard 

at 30 C.F.R. § 75.400. That standard requires that coal dust, including 

float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein. The citation here states 

that Jewell Ridge permitted dry, loose coal and coal dust to accumulate in 

the No. 1 return entry on the No. 1 section. The size of the "accumulation", 

qescribed as approximately 38 feet long, 4 feet high and 20 feet wide, is not 

disputed. Moreover, from the admissions of Respondent's own witnesses 

including the general mine foreman Ralph Miller, it is clear that the cited 

"accumulation" was intentionally created as part of a cleanup process on the 

day shift 5 days before that condition was cited. 

Jewell Ridge first seems to claim that MSHA did not prove that the 

"accumulation" consisted of combustible materials. MSHA inspector Harold 

Burnett testified however, based on his visual observations, that the "accumulatio~' indeed consisted of loose coal and coal dust of such a nature as to 

106 
be combustible. The particles ranged in size from dust to the size of his 

fist, were black and dry and contained no perceptible inert material such as 

rock, stone, cement, or rock dust. This testimony is not directly contradicted. I find Burnett's visual observations of the combustible nature of 

the "accumulation" to be sufficient to support the violation cited. Coal 

Processing Corporation, 2 IBMA 336 at pages 345-346. Under the circumstances 

there is no need to determine the weight, if any, to be given to the analysis 

of the coal samples collected by Inspector Burnett and the laboratory test 

results purportedly obtained therefrom. 

Jewell Ridge next seems to contend that extenuating circumstances 

existed to justify the presence of the cited "accumulation" for a period of 

more than 4 days. Mine foreman Miller explained that he directed section 

foreman Blankenship to clean up the No. 1 entry by having the excess loose 

coal scooped up into the face during the day shift on August 16th in anticipation that the continuous miner would, in the course of the cycle, 

later clean it up. For reasons unexplained however the "accumulation" was 

not cleaned up during that day shift nor on the following night shift on 

August 16th. Miller explained that the pile was not cleaned up on the 17th 

because the mine was idle "for lack of railroad cars or something" and that 

it was not cleaned up on the 18th or 19th because that was a weekend during 

which the miners did not ordinarily work. He offered no reason why it was 

not cleaned up before 1 p.m. on Monday the 20th but explained that at that 

time bad roof conditions were discovered in the haulway which then provided 

the only access to the "accumulation". Crib blocks used to support that roof 

thereafter obstructed passage of equipment needed for the cleanup. Miller 

argued that until the evening shift of August 20th when the No. 1 entry was 

cut through from another direction it was therefore impossible to remove that 

"accumulation". Miller admitted however that although the "accumulation" was 

reported in the preshift examination book before the day shift began on the 

21st no cleanup work was performed until the condition was cited by Inspector 

Burnett at 10:15 that morning. 

Miller's various excuses for his failure to have the "accumulation" 

cleaned up for more than 4 days do not provide an acceptable defense to the 

cited violation. The mere existence of an "accumulation" of combustibles is 

support a violation of 30 C.F.R. § 75.400. 

1 FMSHRC 1954 (December 1979); 

2806 (October 1980). Miller's 

contrary, support a finding of gross negligence for his failure to 

have the accumulation cleaned up for the several days before the roof deteriorated. The foreman's gross negligence is imputed to the operator. Under the 

circumstances I have no difficulty in concluding that the vast pile of loose 

coal and coal dust found by Inspector Burnett in this case constituted an 

"accumulation" within the meaning of the cited standard, Old Ben Coal Company, 

1 FMSHRC 1954, supra, and that the loose coal and coal dust constituted combustible materials which could cause or propagate a fire or explosion if an 

ignition source were present. Old Ben Coal Company, 2 FMSHRC 2806, 

107 
In determining the amount of penalty that is appropriate in this case 

I have already determined that gross negligence existed. Evidence that there 

were only insignificant amounts of methane present in the section of the mine 

cited, that no ignition sources were discovered by Inspector Burnett as a 

result of his inspection that day and testimony from Burnett that the likelihood of an explosion or fire under the circumstances was "improbable" do mitigate the gravity of the hazard. I observe however, that even though no 

ignition source may have been discovered by Burnett during his inspection, 

there is always the risk of such an ignition source developing at any time. 

In this regar~ Burnett testified that it was not uncommon for electric trailing cables to become damaged from moving equipment and for the creation of 

sparks from ripper heads striking rock. The hazard from fire or explosion 

was also increased here by the fact that oil and explo~d.ves were stored 

nearby. 

While the cited accumulation was indeed cleaned up within the time specified for abatement it is apparent that under the circumstances Jewell Ridge 

had little choice but to clean up the accumulation if it wished to continue 

in operation. It has been stipulated that any penalty imposed in this case 

would not affect the operator's ability to continue in business. The specific mine at issue is medium in size with production of slightly over 96,000 

tons in a recent year. The operator is large in size with a production of 

over 6 million tons in a recent year. It is difficult to determine the precise history of violations from the computer print-out offered by MSHA in 

evidence so that I have neither increased nor decreased the penalty I am 

imposing in this case as a result. Under all the circumstances I conclude 

that a penalty of $1,500 is appropriate. 

ORDER 

WHEREFORE, the Jewell Ridge Coal Corporat 

of $1,500 within 30 days of this order. 

is o pay a penalty 

·Distribution: 

Catherine M. Oliver, Esq., Office 

Labor, 3535 Market Street, Room 

(Certified Mail) 

Gary w. Callahan, Esq., Assistant General Counsel, Jewell Ridge Coal 

Corporation, Lebanon, VA 24266 (Certified Mail) 

108 

of 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBU~ PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAF.ETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 80-276-M 

Petitioner A/O No. 41-01330-05003 

v. 

O'Daniel Pit and Plant 

PRICE CONSTRUCTION, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

E. Justin Pennington, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for Petitioner; 

Bob Price, Vice President, Price Construction, Inc., 

Big~Spring, Texas, for the Respondent. 

Judge Stewart 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (MSHA), under section llO(a) 1/ of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereinafter the Act), 

to assess civil penalties against Price Construction, Inc. (hereinafter 

Price) for violations of mandatory safety standards. A hearing was held in 

1/ Sections llO(i), and (k) of the Act provide: 

"(i) The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, the appropriateness of such penalty to the size 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. In proposing civil penalties under this Act, 

the Secretary may rely upon a summary review of the information available to 

him and shall not be required to make findings of fact concerning the above 

factors. ~ 

11 (k) No proposed penalty which has been contested before the Commission 

under section 105(a) shall be compromised, mitigated, or settled except with 

the approval of the Commission. No penalty assessment which has become a 

final order of the Commission shall be compromised, mitigated, or settled 

except with the approval of the court11 • 

109 
the 118th Judicial District Courtroom, County Courthouse, Big Spring, Texas, 

on November 7, 1980. Two witnesses were called by MSHA and one witness was 

called by Price. The parties entered the following stipulations on the record: 

The parties have stipulated to the jurisdiction of the 

Review Commission. 

We have also stipulated as to the coverage of the Act as 

related to Price Construction, Incorporated, in that Price 

Construction operates a mine which has products entering into 

commerce or affecting commerce. 

The parties have also stipulated to the company's history 

of previous violations, and we have agreed that the company has 

a good history. 

to the size of the business. 

I~corporated, the Respondent, 

The mine involved, the O'Daniel 

The parties have stipulated 

The company, Price Construction, 

is regarded as a small company. 

Pit and Plant, is regarded as a medium sized pit. 

We have also stipulated to the effect of this particular 

penalty proceeding on the ability of the operator to continue 

in business and we have agreed that this will have little 

or no effect on the operator's ~bility to continue in business. 

The Secretary has marked Petitioner's Exhibit Number 1, 

a data printout which reflects the assessed violation history 

of Price Construction Company and the O'Daniel Pit and Plant, 

and the parties have stipulated that the printout accurately 

reflects the history of the company. 

With respect to the size of the mine, the parties have 

stipulated that * * * the size of the company is about 

95,000 manhours per year. The size of O'Daniel Pit and Plant 

is approximately 43,000 manhours per year.· 

The decision rendered orally from the bench at the hearing, following 

argument by the parties on the fact of violation and the statutory criteria, 

is reduced to writing below as required by the Rules of Procedure of the 

Federal Mine Safety and Health Review Commission, 30 C.F.R. § 2700.65. 

In an off-the-record conference, the parties have 

waived the submission of proposed findings of fact and 

conclusions of law and supporting briefs. 

Pursuant to the parties' stipulation to the accuracy of 

an exhibit showing that the Price's history is good with 

13 paid violations, I accordingly find that the operator's 

history of previous violations is good. 

110 
The parties have stipulated that the Price Construction 

Company is a small company with approximately 95,000 manhours 

of work per year and that the O'Daniel Pit is a medium sized 

operation with approximately 43,000 manhours per year. There 

are twelve employees at the O'Daniel Pit. I therefore find 

that Price Construction Company is a small company, and that 

the O'Daniel Pit is a medium sized operation. 

Pursuant to the parties' stipulation, I also find that 

the assessed penalty in this case will have no effect on the 

operator's ability to continue in business. 

Citation Number 160687 was issued on February 6, 1980 by 

Federal Mine Safety Inspector, Kenneth Page, in which he noted 

the condition or practice to be as follows: "Upon arriving 

at the primary hopper area, an employee was observed standing 

atop the grizzly breaking a boulder with a twelve pound sledge 

hammer without the aid of eye protection. The possibility of 

flying foreign matter striking employee in the eyes and causing injury existed." 

The citation was issued at 0800, and the operator was 

given until 0815 in order to abate the citation. The citation was terminated by the inspector at 0815 with the action 

to terminate noted as follows: "employee was instructed to 

wear eye protectibn and his goggles were supplied and worn 

during this procedure." 

The citation· cited a violation of 30 CFR 56.15-4 which 

reads as follows: "Mandatory. All persons shall wear 

safety glasses, goggles or face shields, or other suitable 

protective devices when in or around an area of a mine or 

plant where a hazard exists which could cause injury to 

unprotected eyes." 

The evidence establishes that there were two persons 

working on top of a grizzly, a.grate or a sieve-type protection over the hopper opening where one of the employees -

Mr. Leslie Coleman - was breaking a boulder by striking it 

with a sledge hammer. Mr. Coleman was not wearing safety 

type glasses, goggles, face shield or other suitable 

protective device, although the other person working on the 

grizzly was doing so. 

In this area on the grizzly where boulders are broken 

by the use of a sledge hammer, a hazard exists which could 

cause injury to unprotested eyes. This is an operation 

normally carried on on top of the grizzly since out of a 

truckload of material there may be four or five boulders so 

111 
large that they will not fall through the opening or openings of the grizzly. These must be broken into smaller 

pieces, and the normal means of doing so is by striking 

them with a sledge hammer. 

Mr. Coleman had been the object of a prior citation 

for failure to wear eye protection when working on the 

grizzly. After this time he had quit the employment of 

Price Construction Company but had subsequently come back 

to work for that company. He had been cautioned by Mr. Ed 

Morris, the plant foreman at the O'Daniel Pit on several 

occasions for failure to wear his glasses or other protective devices. Normally in the past when he failed to wear 

protective devices, his goggles were in the control tower, 

a short distance from the grizzly. 

On the occasion when the citation was issued on 

February 6, 1980, Mr. Coleman had left his goggles in the 

lab area whi1:h is near the plant office, about 100 yards 

from the grizzly. In order to abate the violation, someone 

in the employ of Price Construction Company had to go and 

obtain goggles for Mr. Coleman. That took in the nature 

of fifteen .minutes. 

There has been testimony from the safety officer,. 

Mr. Jim Hill, who assumed that positioμ in March of 1980 

after citation Number 160687 had been issued. He states 

that there is now a safety program under which he recalls 

only one instance where a man was working on a feeder without 

eye protection and he was not on the grizzly breaking rocks. 

When Mr. Hill assumed his duties as safety officer, he found 

a set of safety instructions promulga~ed by Price Construction company for O'Daniel Pit, but the particular operation 

of breaking rock on top of this grizzly was not included. 

Priqe Construction Company should have been aware of 

the propensities of Mr. Colel)lan' conce.rning. his failure 

to wear safety goggles, and further, mor.e strenvous efforts 

should have been made in order to insure t4at safety protection was.worn by him when breaking rocks on tpe grizzly. 

Although some efforts have been made by Price Construction 

Company in an effort to prevent violations of this type, 

I find that a requirement to wear eye protection when working 

on the grizzly in the process of breaking rocks was not 

effectively enforced. 

The failure of Mr. Coleman to wear his safety eye 

protection was not controverted. Since Respondent did not 

take adequate action to insure the·use of such equipment 

through an effectively enforced requirement I find that 

Price Construction Company is in violation of 30 CFR 56.15-4. 

112 
The evidence establishes that as Mr. Coleman was breaking 

the boulder on· top of the grizzly by striking it with a twelve 

pound sledge hammer. Small pieces of rock were flying from 

the boulder for a considerable distance. It has been established that this distance and the type of chips from the 

boulder were sufficient to cause an eye injury. I therefore 

have found it is probable that the violation would result in 

serious injury. 

Inspector Page has testified that the operation of 

O'Daniel Pit as compared with the operation of the pits of 

other similar companies is excellent. Nevertheless, our 

attention must be directed on this occasion to the particular 

citation that was issued on February 6th. The evidence establishes that the operator should have known of the violation 

at the time that it was observed by the inspector. Mr. Coleman 

had a history of failing to wear eye protective devices, and 

the operator was aware of that history. He reported to work 

at about 7:00 a.m. that morni~g, and the violation was observed 

at 8:00 a.m. Although the main office was a considerable 

distance from the hopper, the operator could have prevented 

this violation by an effectively enforced program. 

Although it is possible, as Price Construction Company 

contends, that the violation would have been observed and 

corrected within an hour after the time of the citation at 

8:00 a.m., the evidence nevertheless shows that the violation 

was observed at 8:00 a.m. by the inspector and that there was 

nothing in the operator's safety program to prevent that 

particular violation at that specific time. Breaking boulders 

with the consequent flying about of rock particles is a normal 

part of the operation at the hopper. Since Price Construction 

Company failed to prevent the practice observed by the inspector, I find that the operator was negligent. 

As to good faith, the inspector has testified that the 

abatement efforts by Price Construction Company were 

excellent. I therefore find that the respondent demonstrated 

good faith in attempting to achieve rapid compliance after 

notification of the violation. 

In consideration of the statutory criteria prescribed 

by the Act, I find that the appropriate penalty in this case 

is $60.00. Respondent Price Construction Company is ordered 

to pay Petitioner, MSHA, the srnn of $60.00 within thirty 

days of the date of this decision. 

ORDER 

The decision announced from the bench in the above-captioned proceeding 

is AFFIRMED. 

113 
Respondent is ORDERED to pay 2/ the amount of $60.00 within 30 days 

of the date of this order if it has not already done so. · 

Distribution: 

//"' I~ ... 

~0~~! {~ ,_[i;/a:J 

Forrest E. Stewart 

Administrative Law Judge 

E. Justin Pennington, Esq., Office of the Solicito~, U.S. Department 

of Labor, 555 Griffin Square Building, Suite soi;· Dallas, TX 75202 

(Certified Mail) 

Bob Price, Vice-President, Price Construction, Inc., P.O. Box 1029, 

Big Spring, TX 79720 (Certified Mail) 

2/ Section 110( j) of the Act provides as follows: 11 (j) Civil penalties owed under this Act shall be paid to the Secretary 

for deposit into the Treasury of the United States and shall accrue to the 

United States and may be recovered in a civil action in the name of the 

United States brought'in the United States district court for the district 

where the violation occurred or where the operator has its principal office. 

Interest at the rate of 8 percent per annum shall be charged against a person 

on any final order of the Commission, or the court. Interest shall begin to 

accrue 30 days after the issuance of such order11 • 

114 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 

SHARP MOUNTAIN COAL COMPANY; Application for Review 

D AND R COAL COMPANY, a partnership; 

and BOBBY DONOFRIO, Docket No. PENN 80-218-R 

~Applicant 

v. Orchard Vein Drift Mine 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Appearances: 

Before: 

Respondent 

DECISION 

Lee Solomon, Esq., Philadelphia, Pennsylvania, for Applicant; 

Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Respondent. 

Judge Jacles A. Lsurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding filed by Bobby Donofrio in his capacity as partner 

and owner of D & R Coal Company and Sharp Mountain Coal Company (hereinafter 

Applicant) under section 107(e) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 817(e), (hereinafter the Act) to vacate an order of withdrawal 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 parties filed prehearing statements and posthearing briefs. The 

matter was heard in Philadelphia, Pennsylvania on October 23, 1980. 

The order in question was issued on April 8, 1980. This proceeding was 

filed on May S, 1980. At no time prior to the date of the hearing did Applicant request that this matter be expedited pursuant to 29 C.F.R. § 2700.52. 

However, at the hearing, Applicant moved to vacate the order of withdrawal 

for failure to hold a timely hearing. The motion was denied because Applicant failed to move for an expedited hearing pursuant to the Commission's 

Rules of Procedure. 

The controversy in this matter concerns Applicant's use of nonpermissible fuses and blasting caps in its underground anthracite coal mine. MSHA's 

contention that such use constitutes an imminent danger is disputed by 

Applicant. 

115 
ISSUE 

Whether the order of withdrawal due to imminent danger should be 

affirmed, vacated or modified. 

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 from, 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." 

30 C.F.R. § 75.1303 provides as follows: 

Except as provided in this section, in all underground 

areas of a coal mine only permissible explosives, electric 

detonators of proper strength, and permissible blasting 

devices shall be used and all explosives and blasting 

devices shall be used in a permissible manner. Permissible 

explosives shall be fired only with permissible shot firing 

units. 

30 C.F.R. § 15.19 provides in pertinent part as follows: 

An explosive certified as permissible under this part 

is permissible in use only so long as it meets the following 

requirements: ••• (d) Is initiated with a copper or copperbased alloy shell, commercial electric detonator (not cap 

and fuse) of not less than No. 6 strength. 

STIPULATIONS 

The parties stipulated the following: 

116 
1. Sharp Mountain Coal Company is subject to the jurisdiction of the 

Act. 

2. Orchard Vein Drift is a mine within the meaning of the Act. 

3. Order No. 225365 was properly served upon Applicant. 

4. The Applicant is a small operator. 

5. There is no prior history of violations at this mine. 

FINDINGS OF FACT 

I find from the preponderance of the evidence of record the facts as 

follows: 

1. Orchard Vein Drift Mine, an .. underground anthracite coal mine, is 

owned and operated. by Applicant. 

2. Michael C. Scheib, who issued the order in controversy, was an 

inspector employed by MSHA and a duly authorized representative of the 

Secretary OD Labor at all times pertinent herein. 

3. For approximately 2 years prior to the inspection in controversy, 

this mine was not inspected by MSHA because of the operator's denial of entry 

to MSHA inspectors and its unsuccessful litigation to challenge MSHA's 

authority to inspect this mine. 

4. This mine employs no miners and the only persons who work in the 

mine are the named partners: Bobby Donofrio and Robert Rand. Approximately 

50 to 60 tons of coal per week are extracted when the mine is in operation. 

5. On March 26, 28, and 31., 1980, Inspector Scheib, accompanied by MSHA 

Inspector James E. Schoffstall, conducted a regular inspection of this mine. 

On March 28, 1980, the inspectors found nonpermissible fuses and blasting 

caps in the working area of this mine. 

6. No order br citation was issued on March 28, 1980, concerning the 

use of nonpermiss~ble fuses and blasting caps. 

7. On April 8, 1980, the inspectors returned to the mine and informed 

Bobby Donofrio that an order of withdrawal due to imminent danger would be 

issued unless he removed all nonpermissible fuses and blasting caps from the 

mine. 

8. The fuses and blasting caps were not removed from the mine; thereupon, the inspectors issued Order No. 225365 which closed the mine due to an 

alleged imminent danger. The order further alleged a violation 30 C.F.R. 

§ 75.1303. 

117 
9. The order has not been terminated and the mine remains closed·. 

10. At all,times relevant herein, Applicant used nonpermissible fuses 

and blasting caps in the mine. 

11. No explosive gas was found in the mine during any of the 4 days 

in which the inspectors were present, and, hence, the possibility of a 

me·thane explosion was unlikely. 

12. The possibility that either of the two miners working in this mine 

would be exposed to death or serious physical harm due to a defective fuse, 

a stumble and fall, or entering the blasting area without knowledge of the 

impending blast was unlikely. 

DISCUSSION 

The order in controversy was issued after the first inspection of this 

mine following protracted litigation between the parties concerning MSHA's 

authority to inspect the mine. The undisputed evidence shows that the 

regular inspection of the mine was conducted on March 26, 28, and 31, 1980. 

Inspector Schoffstall, testified that he and Inspector Scheib found the 

nonpermissible fuses and blasting caps in the working area of the mine on 

March 28. No order or citation was issued at that time. When the inspectors returned to the mine 11 days later on April 8, they informed Bobby 

Donofrio that no order would be issued if he voluntarily removed the nonpermissible fuses and blasting caps from the mine. He declined to remove 

them and this order was issued. 

The fact that the order in question was issued 11 days after the condition was discovered by the inspectors is strong evidence that the danger :was 

not imminent. The inspectors agree that the condition was no more dangerous 

on April 8, than it had been on March 28. Inspector Schoffstall testified 

that although he believed that the use of nonpermissible fuses and blasting 

caps in the mine constituted an imminent danger on March 28, no order was 

issued because MSHA wanted "to keep a very workable situation with the operators due to the litigation that he had been going through." Hence, MSHA 

followed the unusual practice of giving the operator the option to remove 

the nonpermissible fuses and blasting caps from the mine and thereby avoid 

a citation or order. Suffice it to say, such conduct by MSHA beties its 

contention here that an imminent danger existed at the time the order was 

issued. The definition of imminent danger in section 3(j) of the Act is 11any 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." [Emphasis supplied.] It should be obvious to 

MSHA that if the condition or practice in question is such that the operator 

is given the option to abate it without any sanction from MSHA, the condition 

or practice could not reasonably be expected to ·cause death or serious 

physical harm before it can be abated. 

118 
The evidence establishes that an open flame is required to ignite the 

fuses which lead to the blasting caps in question. One of the reasons given 

by Inspector Scheib for the issuance of the immiment danger order was that 

the open flame could ignite methane and cause a premature explosion. However, the inspector conceded that no methane was found in the mine on any of 

the inspection days in question. While the possibility of a methane accumulation is always present in an underground mine, the total absence of methane 

in this mine at the time the order was issued requires a finding that any 

such methane accumulation in the explosive range is only speculative and 

remote. The inspector's assertions that the use of the fuse and cap method 

of blasting could cause death or serious physical harm due to a defective 

fuse, a stumble or fall, or entering the blast area without knowledge of the 

impending blast are also speculative and remote. In fact, Inspector Scheib 

admitted that cap and fuse blasting can be done in a safe manner. None of 

the inspectors testified that the particular method of cap and fuse blasting 

employed by Bobby Donofrio was unsafe. Their testimony that such a procedure 

is inherently dangerous is contradicted by Inspector Scheib's admission that 

such a procedure can be conducted in a safe manner. In conclusion, MSHA has 

failed to establish the requisite elements of an imminent danger. 

In the typical case where an order of withdrawal due to imminent danger 

is issued, the judgment of the inspector acting under emergency or nearemergency conditions is entitled to great weight in a review proceeding concerning the validity of that order. See Old Ben Coal Company v. IBMA, 

523 F.Zd 25, 31 (7th-Cir. 1975). This rati~nale is inapplicable to matters 

like the instant one where the inspector waits for a period of 11 days after 

discovery of an alleged imminent danger before issuing the order. However, 

MSHA argues that the instant case is analogous to Itmann Coal Company, Docket 

No. WEVA 80-7-R, June 26, 1980, where I upheld an imminent danger order of 

withdrawal. In Itmann Coal Company, supra, the facts were that the MSHA 

inspector observed a miner travelling under unsupported roof and issued an 

order of withdrawal. While the miner in question was no longer under the 

unsupported roof at the time the order was issued, the order was affirmed 

because the evidence established that it was the practice of miners to travel 

under this unsupported roof and that the practice could reasonably be 

expected to cause death or serious physical harm before it could be abated. 

The order in that case was issued moments after the occurrence. Itmann Coal 

Company, supra, is distinguishable from the instant case because here MSHA 

has failed to e.stablish that the danger was imminent. This is so because of 

the passage of 11 days from the time the condition or practice was discovered 

and the time the order was issued and the fact that MSHA gave the Applicant 

the option of abating the violation without any sanction. 

The foregoing should not be construed as an approval of fuse and cap 

blasting in underground mines or a determination that such a practice can not 

constitute an imminent danger under the Act. Fuse and cap blasting is prohibited in underground coal mines· persuant to 30 C.F.R. § 75.1303. Such 

blasting can be prevented by MSHA's use of citations, orders, and civil penalties. However, under the peculiar facts of this case, I find that MSHA 

has failed to establish that an imminent danger existed at the time the order 

was issued. 

119 
Nevertheless; Applicant admittedly used fuse and cap blasting in this 

mine in contravention of 30 C.F.R § 75.1303. The proper procedure for MSHA 

to follow in this matter, where the inspectors discovered the violation 

11 days before taking action on it, was to issue a citation pursuant to 

section 104(a) and set a reasonable termination due date. If the citation 

was not abated within the time allotted, the mine could have been closed by 

an order pursuant to section 104(b) for failure to abate a violation. Under 

the facts of the instant case, the determination to issue an imminent danger 

order of withdrawal was improper. Therefore, the application for review is 

granted in part and the document issued as Order No. 225365 is modified to a 

citation pursuant to section 104(a) of the Act, and that citation is affirmed. 

The above document is further modified to show that the tennination due date 

shall be 8 a.m. on the 4lst day following the issuance of this decision. 

In the application for review, the request for relief included a claim 

for an award of attorney's fees and costs. Applicant appears to have abandoned that request since it was not mentioned in its closing argument or 

brief. In any event, the Act does not provide for such an award in these 

proceedings but does allow for such relief in actions for discrimination or 

discharge pursuant to section lOS(c) of the Act. Since there is no authority 

for the award of attorney's fees and costs in this action, that request is 

denied. 

In MSHA's posthearing brief, it requests the assessment of a civil penalty in the amount of $2,000 although its assessment office has proposed 

a civil penalty of only $275. MSHA has not filed a civil penalty proceeding 

with the Commission on this matter. The operator has not consented to the 

assessment of a civil penalty in this proceeding. I find that the operator 

has the right to pursue its other administrative remedies in this case and 

I will not assess a civil penalty at this time. However, the parties are 

directed to notify me promptly of the filing of any civil penalty proceeding 

arising out of this matter. 

CONCLUSIONS OF LAW 

1. I have jurisdiction over this ·matter pursuant.to section 107 of 

the Act. 

2. The inspector improperly issued the subject order of withdrawal 

pursuant to section 107(a) of the Act because no imminent danger existed in 

that there was no reasonable expectation that the use of nonpermissible fuses 

and blasting caps could cause death or serious physical harm before such 

condition or practice could be abated. 

3. The use of nonpermissible fuses and blasting caps in the mine was a 

violation of 30 C.F.R. § 75.1303. 

4. The application for review is granted in part and the order in question is modified as follows: (A) The order of withdrawal due to imminent 

danger pursuant to section 107(a) of the Act is modified to a citation pursuant to section 104(a) of the Act alleging a violation of the statutory 

120 
provision contained in 30 C.F.R. § 75.1303; and (B) the termination due date 

on the document in question is modified to be 8 a.m. on the 4lst day following the date this decision is issued. 

5. Applicant is not entitled to an award of attorney's fees or reimbursement for other costs incurred in connection with this proceeding. 

ORDER 

THEREFORE, IT IS ORDERED that the application for review is GRANTED in 

part in that the subject withdrawal order is MODIFIED to a citation pursuant 

to section 104(a) of the Act and said citation is AFFIRMED. 

IT IS FURTHER ORDERED that the tennination due date on the above 

citation shall be MODIFIED to 8 a.m., on the 4lst day following the issuance 

of this decision. 

IT IS FURTHER ORDERED that Applicant's request for an award of attorney's 

fees and costs is DENIED. 

Distribution by Certified Mail: 

Ja~er A. Laurenson, Judge 

(,) 

Lee Solomon, Esq., 872 Public Ledger Building, Independence Square, 

Philadelphia, PA 19106 

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

Solicitor, Room 14480, Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 

121 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

l\~,l C ',~c:J1 1-..1 y 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 80-324-M 

Petitioner A/O No. 41-02534-05003 

v. 

Mound Plant 

BELTON SAND & GRAVEL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Max A. Wernick, Esq., Millie Brooks, Legal Assistant, 

Office of the Solicitor, U.S. Department of Labor, 

_Dallas, Texas, for Petitioner; 

Mr. Richard Prater, President, Belton Sand & Gravel 

Company, Inc., Temple, Texas, for Respondent. 

Judge Stewart 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (MSHA), under section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter the Act), l/ to assess 

civil penalties against Belton Sand & Gravel Company, Inc. (hereinafter, 

Belton). A hearing was held on November 26; 1980, in Dallas, Texas. Each of 

the parties called one witness and entered into the following stipulations on 

the record: 

1/ Sections llO(i) and (k) of the Act provide: 

"(i) The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, the appropriateness of such penalty to the size 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. In proposing civil penalties under this Act, 

the Secretary may rely upon a summary review of the information available to 

him and shall not be required to make findings of fact concerning the above 

factors. 

"(k) No proposed penalty whieh ii.as been contested before the Commission 

under section lOS(a) shall be compromised, mitigated, or settled except with 

the approval of the Commission. No penalty assessment which has become a 

final order of the Commission shall be compromised, mitigated, or settled 

except with the approval of the court." 

122 
We have reached an agreement as to the company's history 

of previous violations and we would indicate at this time 

that it is good. They have been inspected on an average of 

three times per year and they received one citation in 1978 

and one citation in 1979, both of which were uncontested and 

immediately abated. 

We would also indicate that this is a sJall operator in 

that their total tonnage at the Mound Plant is between 

10,000 and 12,000 tons per month and that their monthly manhours average around 2,000 per month. 

With regard to the effect of these citations on the 

operator's ability to continue in business we·would indicate, and it is stipulated, that Belton Sand & Gravel 

Company, Inc., do an annual dollar volume of business in 

the area of $800,000 and a million dollars a year. The 

effect of the proposed penalty would have no appreciable 

effect on the operator's ability to continue in business. 

The decision rendered orally from the bench at the hearing is reduced to 

writing below as required by the Rules of Procedure of the Federal Mine Safety 

and Health Review Commission, 30 C.F.R. § 2700.65: 

Pursuant to stipulation by the parties, I find that the 

operator's history of previous violation is good. He has 

been inspected approximately three times per year and has 

had only one citation in 1978 and one citation in 1979. 

Both of these citations were immediately abated. 

As to the appropriateness of the penalty to the size of 

the operator I find that Belton Sand & Gravel Company, Inc., 

the Respondent, is a small operator, producing between 10,000 

and 12,000 tons per month with an average of 2,000 man-hours 

per month. 

I also find, pursuant to the stipulation by the parties, 

that the penalty will not affect the operator's ability to 

continue in business. 

Order of Withdrawal No. 154781 was issued by MSHA inspector Stephen R. Kirk on March 19, 1980. The condition or practice noted on the order of withdrawal was: "The Euclid haul 

unit No. 1 did not have adequate brakes. At a slow speed on 

a flat, level surface, the unit made no attempt to stop when 

the brakes were applied • 11 This order of withdrawal cited a 

violation of 30 C.F.R. § 56.9-3. 

Order of Withdrawal No. 154782 was also issued by MSHA 

inspector Stephen R. Kirk on March 19, 1980. The condition 

123 
or practice noted on this order was: "The Euclid Haul unit 

No. 2 did not have adequate brakes. At a slow speed on a 

flat, level surface, the haul unit made no attempt to stop 

when the brakes were applied. This order also cited a violation of 30 C.F.R. § 56.9-3. 

30 C.F.R. § 56.9-3 reads as follows: "Mandatory. 

Powered mobile equipment shall be provided with adequate 

brakes." 

When Inspector Kirk arrived at the Mound-Plant of the 

Belton Sand & Gravel Company, Inc., on March 3, 1980, he 

tested the brakes of the two Euclid haul units in service 

at the pit and found that they were inadequate and did not 

stop the units at a slow speed when the brakes were applied. 

The No. 1 haul unit has been identified as the bright green 

Euclid haul unit in service, and the No. 2 haul unit has 

been identified as the pale green or yellow-green Euclid 

haul unit in service. Since the brakes of the two units 

were inoperative, it is clear that a violation did occur on 

each unit, and Respondent has acknowledged that there was a 

violation. 

As to the gravity of the violations in each instance, 

the testimony indicates that the only method of stopping the 

units would be to gear the engine down and slow it through 

the low gearing to a very slow speed, or to possibly-stall 

the unit by dumping the load. While operating in the sand 

near the pit, the units operate at a very slow speed of 

approximately 1 or 1-1/2 miles per hour. When the units 

are operating out on the hard surface, they may operate 

at speeds from 10 to 15 miles per hour. Although there are 

means of slowing these vehicles other than by the use of 

brakes, I find that the stopping ability was critically 

impaired by the lack of adequate brakes on the two units. 

The record establishes that it was possible that there 

would be pedestrians and other traffic in the area of the 

operation of the Euclid unit, as well as the operation of 

other units in the area. I find it is probable that a 

serious injury could result as a result of the inadequacy 

of brakes of these two Euclid haul units. 

The record establishes that the operator's foreman had 

knowledge for some time prior to issuance of the orders of 

withdrawal on March 19, 1980, that the brakes of the two 

Euclid haul units wer'e inadequate. The exact period of time 

that these brakes had been inadequate has not been definitely 

established, however, it is clear that the time was sufficiently long that something should have been done to 

correct the situation. 

124 
The brakes had been adjusted on occasion, as it was 

normal to do in the regular course of business at the pit. 

Nevertheless, when there came a time when the brakes would 

not stop the vehicles and adjustment would not remedy the 

situation, that was a time at which other attempts should 

have been made to undertake further repair work and remedy 

the inadequacies in the braking ability. 

The company, after finding that the brakes were 

inadequate, did stop using the vehicles to go up the ramp 

and, instead, dumped the materials at the stockpile which 

was on level area. Nevertheless, the vehicles were allowed 

to continue to operate with inadequate brakes, which created 

a hazard. The fact that it was a costly and time-consuming 

operation to pull the wheels and overhaul the brakes is no 

excuse for failure to operate the vehicles with adequate 

brakes. I therefore find the operator negligent in 

operating the Euclid haul unit No. 1 and the Euclid haul 

unit No. 2 with inadequate brakes. 

As to the good faith of the operator, the order of withdrawal was issued on March 19, 1980, by inspector Stephen R. 

Kirk and was abated on Harch 26, 1980, by inspector Stephen R. 

Kirk. In terminating the order, Inspector Kirk noted that:· 

"The btakes on the No. 1 Euclid haul unit were rebuilt and 

working." Mr. Kirk has testified that the operator exhibited 

good faith in accocrplishing these repairs in this time. 

Order of Withdrawal No. 154782, which was also issued 

on March 19, 1980, was terminated by inspector Harold R. 

Yount on March 31, 1980. In terminating the order, Inspector 

Yount noted: "New brakes and cylinders were installed on the 

No. 2 Euclid haul unit • 11 

Mr. Prater has testified that these repairs were accomplished as expeditiously as possible and that the operator 

was fortunate in being able to obtain these parts in time 

to accomplish the repairs as soon as he did. 

I find that as to both citations, Citation No. 154781 

and No. 154782, the operator demonstrated good faith in 

achieving rapid compliance after notification of the 

violations. 

In consideration of the statutory criteria and the 

findings already made, I find that the appropriate penalty 

for each of these citations is $200. The sum of $200 is 

assessed for the violation noted in Order of Withdrawal 

No. 154781, and a penalty of $200 is assessed for Order of 

Withdrawal No. 154782. 

125 
Respondent is ordered to pay Petitioner the sum of $400 

within 30 days of the date of this decision. 

ORDER 

The decision and order announced orally from the bench at the hearing on 

November 26, 1980, is AFFIRMED. It is ORDERED that Respondent pay Petitioner 

the sum of $400 within 30 days of this decision if it has not already done 

so. J:../ 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Max A. We·rnick, Esq., Millie Brooks, Legal Assistant, Office of the 

Solicitor, U.S. Department of Labor, 555 Griffin Square Building, 

Suite 501, Dallas, TX 75202 (Certified Mail) 

Mr. Richard Prater, President, Belton Sand & Gravel Company, Inc., 

P.O. Box 3634, Temple, TX 76501 (Certified Mail) 

2/ Section llO(j) of the Act provides: 

"(j) Civil penalties owed under this Act shall be paid to the Secretary 

for deposit into the Treasury of the United States and shall accrue to the 

United States and may be recovered in a civil action in the name of the United 

States brought in the United States district court for the district where the 

violation occurred or where the operator has its principal office. Interest 

at the rate of 8 percent per annum shall be charged t a person on any 

final order of the Commission, or the court. Interest shall begin to accrue 

30 days after the issuance of such order." 

126 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 7 1981 

BARNES & TUCKER COMPANY, Contests of Citations 

Contestant 

v. Docket No. PENN 80-246-R 

SECRETARY OF LABOR, Citation No. 848844 

MINE SAFETY AND HEALTH April 29, 1980 

ADMINISTRATION (MSHA), 

Appearances: 

Before: 

Respondent Docket No. PENN 80-247-R 

Citation ~o. 848845 

April 29, 1980 

Lancashire No. 24-B Mine 

DECISION 

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 

Washington, D.C., for Contestant; 

Michael C. BoldeL, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Respondent. 

Judge Charles C. Moore, Jr. 

At approximately 7:50 a.m. on April 23, 1980, a fire was discovered in 

the penthouse containing the hoisting equipment for the elevator at the 

Teakettle Portal of Contestant's No. 24-B Mine. Upon being notified, the mine 

superintendent, mine foreman and a number of others attempted to extinguish 

the fire with co2 firefighting equipment. At approximately 8 a.m., they 

called the local fire department which was 7 miles from the mine. It was 

estimated, and the basis for the estimation seems reasonable, that tne fire 

department could have arrived at the mine no later than 8:15. They began 

extinguishing the fire using a 1-1/2-inch water hose, but there is no evidence as to when the firemen actually extinguished the fire. There is evidence, however, that they had returned to the firehouse by 9:15 a.m. At 

8:40 a.m., Inspector Niehenke was inspecting another mine and was informed 

that the fire at Contestant's Teakettle Portal was being broadcast on CB radio 

as well as commercial radio. In~pector Niehenke called his supervisor, 

Mr. Gobert, to see if Mr. Gobert knew of the fire. Mr. Gobert did not, but 

said he would call the company, which he immediately did. Mr. Gobert called 

Inspector Niehenke at 8:50 a.m., confirmed the fact of the fire and directed 

him to proceed to the Teakettle Portal. The inspector arrived at the 

Teakettle Portal at 9:15 a.m., the approximate time the firemen returned to 

their station. 

127 
The inspt?.ctor arrived at the mine while it was being evacuated and when 

he reached the penthouse workers were attempting to clean the area and 

restore order. Upon entering the penthouse, he saw electrician Fred Gormish 

cut an electric cable that led from a disconnect switch to a space heater. 

He told Mr. Gormish that he was destroying evidence and immediately (at 

9:30 a.m.) issued an order under section 103(k) of the Act which prohibited 

further restoration activities. 1/ 

An accident investigation commenced at 9:45 that morning and lasted 

5 days. After the investigation, two citations were issued charging the company with failing to immediately report an accident and altering the scene of 

an accident. The citations allege violations of 30 C.F.R. § 50.10 and 

30 C.F.R. § 50.12, respectively.:!:._/ 

Twelve situations are defined in 30 C.F.R. § 50.2(h) as accidents 

reportable to MSHA under 30 C.F.~. § 50.10, supra. Four of the 12 definitions include a 30-rninute time period; two of those four are relevant to the 

facts of this case. 

Subsection (h)(6) defines as an accident: "An unplanned mine fire not 

extinguished within 30 minutes of discovery* * *" and subsection (h)(ll) 

defines as an accident: "Damage to hoisting equipment in a shaft or slope 

which endangers an individual or which interferes with use of the equipment 

for more than 30 minutes." 

Whether the 30-minute time period refers to the time within which the 

above occurrences are to be reported to MSHA or whether it refers to a time 

period which must elapse before the fires become reportable accidents was disputed at the hearing. Both the inspector and his supervisor were of the 

opinion that the 30-minute period referred to the time within which an accident must be reported, but MSHA decided not to charge Barnes & Tucker for 

1/ There is an implication in the inspector's testimony and in the Government 1 s brief that the issuance of a 103(k) or~er is the proper way to preserve evidence. While this may be true if the preservation of evidence also 

insures "the safety of any person in the * * * mine," preservation of evidence alone will not justify such an order. Eastern Associated Coal Co. 

HOPE 75-699; 2 FMSHRC 2467 (September 2, 1980). 

:!:_/ Section 50.10 states: 

"If an accident occurs, an operator shall immediately contact the MSHA 

District or Subdistrict Office having jurisdiction over its mine. I~ an 

operator cannot contact the appropriate MSHA District or Subdistrict Office 

it shall immediately contact the MSHA Headquarters Office in Washington, 

D. C., by telephone, toll free at (202) 783-5582. 11 

Section 50.12 states: 

"Unless granted permission by a MSHA District Manager or Subdistrict 

Manager, no operator may alter an accident site or an accident related area 

until completion of all investigations pertaining to the accident except to 

the extent necessary to rescue or recover an individual, prevent or eliminate 

an imminent danger, or prevent destruction of mining equipment." 

128 
failing to report a subsection (h)(6) accident as they were unable to determine how long the fire lasted (Tr. 150). 3/ My interpretation is that, 

contrary to the Government's tes.timony, 30minutes must elapse before the 

accidents defined in subsections (h)(6) and (h)(ll) become reportable. 

Section 50.10 states that if an accident occurs "an operator shall immediately contact the MSHA district or subdistrict office * * *·" The regulations do not say what is meant by the words "immediately contact" but 

certainly in the case of an injury MSHA would not expect a miner or a supervisor to run for a telephone rather than give aid to an injured miner. It 

seems that reasonable promptness is what should be expected of the mine operator. But in the case of those accidents which only become reportable if 

they last a certain length of time, the "reasonable promptness" time period 

cannot be expected to start until after the time period has passed. There is 

no accident to report until after the time has elapsed. 

During the course of the firefighting effort by the fire department, the 

electrical hoist machinery was soaked and there was testimony that it should 

not have been operated without having first been cleaned and dried. The 

machines were not damaged in any way by the fire itself. It is impossible to 

detennine exactly when the firemen sprayed the hoisting equipment. Inasmuch 

as the firemen probably did not arrive at the mine until 8:15 a.m. and the 

damage was done sometime after that, and inasmuch as MSHA was notified of the 

accident at 8:45 a.m. there is no way that 30 minutes could have passed (even 

if that were the correct rule, which it is not) between the time the hoists 

were damaged and MSHA was notified of the accident. MSHA has thus failed to 

establish that the company violated 30 C.F.R. § 50.10 and the citation alleging such a violation is vacated. 

The allegation that the mine operator altered the accident site prior 

to completion of the investigation presents a more difficult problem. The 

inspector's description of the physical layout of the penthouse is at variance with the photographic evidence and testimony presented by the Contestant. 

The inspector testified that the wire which he saw the electrician cut 

extended from the heater to a breaker switch which was in the open position. 

The electrician, however, testified that he had removed the breaker switch 

before the inspector arrived. The electrician also testified that in cutting the wire he thought he was eliminating an imminent danger, but obviously 

if the breaker switch had already been removed no power could reach the line 

he severed, and thus there was no imminent danger. There was also the fact 

that Mr. Dolges, an electrician, removed a burned wire from one of the three 

boxes on the penthouse wall but refused to tell the inspector about that when 

he was questioned. It was this missing wire which apparently led the inspector and the rest of the investigat~on team to suspect devious acts on the 

operator's part. I suspect that no citations would have been issued if 

3/ The Secretary's brief appears to argue to the contrary, but it is clear 

that the citation was for failure to report the damage to the hoisting 

equipment rather than the fire itself. 

129 
Mr. Dolges had testified during the investigation. But all of these matters 

become unimportant if the damage to the hoisting equipment was not a reportable accident, because if it was not, there was no duty to maintain the accident scene in an unaltered state. 

In my opinion, MSHA has failed to establish that the damage to the 

hoisting equipment was a reportable accident. Otis Elevator Company employees informed the Contestant that the hoist could be run immediately without 

further maintenance, but they could not guarantee further damage would not be 

done. In addition, there is no way to know how long it would have taken the 

operator to blow the motors dry and resume operation since the inspector 

halted the restoration operations by issuing his section 103(k) order. The 

order was issued at 9:30 a.m. but as stated before, it is unknown when and to 

what extent the hoist machinery was damaged by the firemen's water. And 

although the inspector stated that he issued his 103(k) order at 9:30 a.m., 

he also stated that when he earlier accused Mr. Gormish of destroying evidence, Mr. Gormish ceased further restoration operations. I hold that MSHA 

has failed to carry its burden of showing that this was a reportable accident. I further hold that there was no devious intent on the operator's 

part to hide any phase of this accident, but that it was merely trying to 

restore the penthouse to operating condition and thus protect its equipment 

from whatever deleterious effect might result from letting the hoist stay wet. 

Citation Nos. 848844 and 848845 are vacated, and all proposed findings 

not included above are ected. 

Distribution: 

Charles C. Moore, Jr. 

Administrative Law Judge 

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 

1800 M. Street, NW., Washington, DC 20036 (Certified Mail) 

Michael C. Bolden, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

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

900-15th Street, NW., Washington, DC 20005 (Certified Mail) 

130 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 8, 1981 

UNITED STATES STEEL CORPORATION, 

Contestant 

Contest of Order 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Docket No. WEVA 81-33-R 

Order No. 894407 

Mine No. 2 

Respondent 

DECISION 

Appearances: Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for 

Contestant; 

Barbara K. Kaufmann, Esq., Office of the Solicitor, 

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

for Respondent. 

Before: Chief Administrative Law Judge Broderick 

Pursuant to notice, the above case was called for hearing on the merits 

on December 16, 1980, in Charleston, West Virginia. After the completion of 

the evidentiary hearing and after hearing arguments by counsel, I rendered a 

bench decision which is set forth below: 

This is a proceeding instituted by United States Steel 

Corporation under section 107(e) of the Federal Mine Safety 

and Health Act of 1977, seeking to have vacated an order of 

withdrawal issued pursuant to section 107(a) of the Act. 

The case was heard today pursuant to notice, today being 

December 16, 1980, in Charleston, West Virginia. 

At the conclusion of the testimony, the parties orally 

argued their positions on the record, and have waived the 

right to file written proposed findings of fact and conclusions of law. 

The issues are: 

1. Did the practice which Inspector Walls stated existed 

in the subject mi~c, namely, the use of a shuttle car trailing cable to withdraw power for other equipment, did that 

practice exist as of September 9, 1980, in the subject mine? 

131 
2. The second issue, if so, was the practice an imminent danger, that is, could it reasonably be expected to 

cause death or serious physical harm before it could be 

abated? 

The following are my findings of fact based upon the 

record made before me today and the contentions of the 

parties. 

1. The Contestant, United States Steel Corporation, on 

September 8, 1980, was the operator of a coal mine known as 

the Gary District Mine No. 2 in the State of West Virginia, 

and was subject to the Federal Mine Safety and Health Act 

of 1977 in the operation of that mine. 

2. Franklin Walls was a Federal mine inspector, Federal 

mine electrical inspector and was a duly authorized representative of the Secretary of Labor at all times pertinent to 

this decision. 

3. On September 9, 1980, Inspector Walls inspected the 

Gary Mine "No. 2 and issued Order No. 894407 under section 

107(a) of the Act, alleging an imminent danger because of 

the practice described as, "the practice of providing power 

to other devices by means of equipment trailing cables." 

4. I find that the evidence establishes that employees 

of United States Steel Corporation in the Gary Mine No. 2 

did use trailing cables to provide power to other equipment 

in the mine. I am persuaded that this occurred because of 

the following factors: (a) placement of the holes in each 

set of holes which were found, which I find to have been 

approximately 10 to 12 inches apart; (b) the fact that the 

holes went through the entire cable, passing through the 

conductors and out the other side; (c) one of the holes in 

each set of holes was large enough so that the conductor was 

visible when the cable was flexed and corrosion was seen on 

the conductor. 

For these reasons, I reject the evidence that the holes 

were caused by an ohmmeter or accidentally caused by the 

cable contacting a nail on a rib board, and I find affirmatively that they were caused by the driving of a nail or 

other instrument through the cable, the purpose of which was 

to provide power for other equipment in the mine. 

There is no direct evidence that this occurred, but the 

inference is a reasonable and natural one from the evidence 

which I found. 
A further question remains. Was this a practice? The 

evidence shows that two sets of holes were present in the 

same trailing cable, indicating that on at least two occasions this--what I have described--had occurred, namely, 

that power was drawn from the shuttle car cable to empower 

other equipment. 

I find that these two occurrences establish a practice. 

This does not mean that the operator prescribed or condoned 

the practice. The question of fault or lack of fault on 

the part of the operator is not relevant to a determination 

of the propriety of the issuance of a 107(a) order. 

So, I find and conclude that the practice charged in the 

withdrawal order did exist in the subject mine. 

The remaini~g question is whether the practice was an 

imminent danger• I think the evidence is clear, and I find 

that if the practice were continued it could reasonably be 

expected to cause death or serious physical harm. 

The company denies that the practice existed, but does 

not or has not submitted evidence to seriously contend that 

if the practice existed it was not imminently dangerous. 

The danger consisted essentially in the possibility of a 

miner receiving an electrical shock, an electrocution or 

the occurrence of a mine fire resulting from the baring of 

the power conductors in the cable. 

The following are my conclusions of law: 

1. I have jurisdiction over the parties and subject 

matter of this proceeding. 

2. Inspector Walls properly issued Withdrawal Order 

No. 894407 on September 9, 1980, under section 107(a) of 

the Act. An imminent danger existed, namely, the practice 

of using a shuttle car trailing cable to provide power to 

other equipment by driving a nail or other device through 

the two conductors in the cable. 

I find and conclude that this practice could reasonably 

be expected to result in death or serious physical harm 

before it could be abated. 

I make no finding as to whether the condition or the 

practice described in the order constituted a violation of 

30 C.F.R. § 75.512. 

133 
Therefore, I issue the following order: The contest of 

the order filed by Contestant United States Steel Corporation 

is denied, and the order of withdrawal is affirmed. 

This decision will be issued in writing as I have given 

it orally following receipt of the transcript. The time for 

either party to file a petition for discretionary review with 

the Commission will begin to run from the date of the issuance 

of the written decision. 

Thank you very much, ladies and gentlemen. 

ORDER 

The bench decision is AFFIRMED. Contest of Order No. 894407 issued 

September 8, 1980, is DENIED and the order is AFFIRMED. 

/drvkeZ_ 

/ James A. Broderick 

Chief Administrative Law Judge 

Distribution: 

Louise Q. Symons, Esq., Attorney for United States Steel Corporation, 

600 Grant Street, Room 1501, Pittsburgh, PA 15230 

Barbara Krause Kaufmann, Attorney, Offic~ of the Solicitor, U.S. Department of Labor, Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

Special Investigation, MSHA, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

134 
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. 

ERIE BLACKTOP, INC., 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 9 198f 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. VINC 79-39-PM 

A.O. No. 33-03313-05001 

Quarry Division Quarry & Mill 

DECISION 

Appearances: Edward H. Fitch IV, Attorney, Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for the 

petitioner; 

James E. McGookey, Attorney, Sandusky, Ohio, for the 

respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding was initiated by the petitioner against the respondent 

through the filing of a petition for assessment of civil penalties pursuant 

to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a), proposing penalties for 12 alleged violations of certain mandatory 

safety standards promulgated pursuant to the Act. A hearing was held in 

Sandusky, Ohio, during the term July 29-30, 1980, and the parties appeared 

and participated therein. Although given an opportunity to file posthearing 

proposed findings and conclusions, the parties opted to waive such filings 

and none were filed. However, I have considered the arguments advanced by 

the parties in support of their respective cases during the course of the 

hearing in this matter. 

Issues 

The issues presented in this proceeding are: (1) whether respondent has 

violated the provisions of the Act and implementing regulations as alleged in 

the petition for assessment of civil penalties, and, if so, (2) the appropriate civil penalties that should be assessed SLgainst the respondent for the 

alleged violations based upon the criteria set forth in section llO(i) of the 

Act. 

135 
In determining the amount of civil penalty assessments, section llO(i) of 

the Act requires consideration of the following criteria: (1) the operator's 

history of previous violations, (2) the appropriateness of such penalty to the 

size of the business of the operator charged, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violations, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violations. 

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 seq. 

Discussion 

Stipulations 

The parties stipulated to the following: 

1. Respondent has no prior history of violations under the Act. 

2. Any penalty assessments made by me in this proceeding will not 

adversely affect tpe respondent's ability to remain in business. 

3. The parties agreed to the authenticity and admissibility of all hearing exhibits, agreed that the inspector who issued the citations was acting 

within the scope of his authority as an MSHA inspector, and that he cited the 

alleged violations upon inspection of the mine. 

4. Respondent is a small u;ine operator. 

Preliminary Procedural Matter 

The petition for assessment of civil penalties filed in this proceeding 

states that "a copy of each citation and/or order for which a civil penalty is 

_sought is attached hereto," and it also asserts that MSHA seeks penalty assessments "for each alleged violation set forth in attached Exhibit A." Exhibit A 

is an MSHA proposed assessment form which contains an itemized listing of 

12 citations issued on May 4, 1978, and the citations are identified numerically as Citation Nos. 359236 through 359247. Citation Nos. 359236 through 

359240 are listed as section 104(a) citations all of which are shown as issued 

on May 4, 1978. The remaining listed citations, Nos. 359241 through 359247 

are all identified as section 104(b) orders of withdrawal, and they too are 

shown as being issued on May 4, 1978. However, copies of the 12 citations 

and seven additional orders numbered 359248 through 359254, dated May 16, 1978, 

were included as part of MSHA's civil penalty petitions. 

136 
The Commission's current rules, 29 C.F.R. § 2700.27(c), effective June 29, 

1979, as well as the rule in effect at the time of MSHA's petitions were filed, 

29 C.F.R. § 2700.24(b), require the Secretary to list the cited violations for 

which civil penalties are sought, and require that they be identified by number 

and date and the section of the Act or regulation allegedly violated. 

In view of the apparent discrepancy and error in the listing and identification of seven of the 104(a) citations as 104(b) orders, and the omission 

of the orders from the itemized listing, MSHA's counsel was requested to 

clarify the matter so as to preclude any confusion as to the citations for 

which penalty assessments were being sought by the Secretary. Counsel stated 

that the itemized listing included as an exhibit to MSHA's petition resulted 

from an apparent computer error, that MSHA is seeking civil penalty assessments only for the 12 section 104(a) citations listed and included as attachments to the petition, and that the 104(b) orders included as attaclunents to 

the petition are relevant only to the extent that they reflect a lack of good 

faith compliance with respect to the asserted failure by the respondent to 

timely abate the seven citations to which they relate, and that the orders are 

relevant and material to this issue and should be considered in the assessment 

of any civil pehalties for these citations (Tr. 20-21, 188-190). 

In view of counsel's explanation and clarification, the parties were 

informed that I would consider MSHA's petition for assessment of civil penalties as a petition for assessment of penalties for the 12 cited 104(a) citations, and that the 104(b) orders were relevant for purposes of establishing 

any alleged lack of good faith compliance. Further, I denied respondent's 

motion to dismiss the seven citations erroneously identified as 104(b) orders 

on the ground that MSHA is free to amend its pleadings to conform to the evidence, that respondent has not been prejudi~ed since any civil penalty assessments would be levied by me de novo on the basis of the record adduced at the 

hearing, and that I considered the asserted computer error to be technical in 

nature (Tr. 23). 

Test and Evidence Adduced the Petitioner 

Citation No. 359236 cites a violation of section 109(a) of the 'Act and 

states as follows: "An office sign was not posted on the office." 

MSHA inspector Edward Cloud confirmed that he issued the citation in 

question (Exh. P-1) after observing that a trailer on the mine premises used 

as the mine office had no sign posted identifying it as an office. He had 

previously inspected the mine under the Metal and Non-Metal Mine Act and 

believed that it was the same trailer. Mine management accompanied him on 

the inspection and he always affords a mine representative an opportunity to 

accompany him, although small operators often choose not to because they 

would have to close the operation down. The trailer was the only structure 

which appeared to be an office, although there is a maintenance shop, a mill, 

and other structures on the premises. The trailer was parked by the weigh 

scales, a secretary worked there, and it is the first structure that one 

encounters after driving on the mine property. 

137 
Cloud stated that the respondent was negligent because he had 

previously visited the mine in April 1978, to explain MSHA's assessment procedures and to deliver copies of the new Act to mine management. He did not 

consider the violation to be serious and respondent abated the violation in 

good faith by purchasing and installing a sign designating the trailer as the 

mine office (Tr. 37-45). 

On cross-examination Mr. Cloud confirmed that his inspection of May 4, 

1978, was the one at the mine under the new Act and he confirmed his 

previous "courtesy visit" of April to explain the new law to mine management. 

He confirmed his belief that the trailer he observed on May 4 was the same 

one which he previously observed but he could not state whether it had just 

recently been brought to the mine. 

Citation No. 359237 cites a violation of section 109(a) of the Act and 

states as board was not provided for the office • 11 

or Cloud confirmed that he issued the citation (Exh. P-4) after 

he found that there was no bulletin board in the mine off ice. He observed no 

notices or copies of the regulations posted, and none of the interior trailer 

walls were designated or indicated to be a bulletin board. Since section 

109(a) of the Act required a bulletin board and he observed none, he issued 

the citation. He believed the respondent was negligent because mine management had a copy of the Act. He considered the violation to be nonserious 

and abatement was achieved in .good faith by the purchase and installation 

of a bulletin board (Tr. 74-77). 

On cross-examination, Mr. Cloud indicated that he recalled making an 

inquiry about the bulletin board and that Company President Winkel confirmed 

the lack of a bulletin board. Mr. Cloud also indicated that if any portion 

of the mine office wall had been specifically designated or ed as a 

bulletin board, with the required notices posted, he would not have issued 

the citation (Tr. 81-88). 

Citation No. 359238 cites a violation of 30 C.F.R. § 56.11-1 and states: 

"A means access was not provided from the elevated we 

elevated doorway at the east end of the office." 

"A 

the 

access was not provided from the elevated 

at the west end of the office." 

scales to the 

scales to 

Inspector Cloud confirmed that he issued the citation • P-7) after 

determining that a safe means of access was not provided from the elevated 

weigh scales to the elevated entrance door at the east end of the trailer 

office. The trailer was located adjacent to the weigh scales and both the 

trailer and scales were both approximately 4 feet off the ground and the 

distance between the two was approximately 3 feet. The only means of access 

from the scales to the door was by jumping or stepping across the 3-f oot opening and the secretary working in the office advised him she had to jump across 

138 
from the scales to the door opening. He also indicated that he decided not to 

jump across to enter the off ice, but instead went to the rear of the trailer 

and climbed up one of the two door entrances to enter the office. He considered the operator to be negligent and considered the violation to be very 

serious because someone could be seriously injured if they were to fall 

through the opening and down the 4-foot elevated area. However, he was not 

aware that anyone had been injured by falling off. Abatement was achieved 

timely by the installation of a corrugated metal access way which was 

3 feet wide and 4 feet long and he believed the respondent provided a more 

than adequate safe access (Tr. 54-71, 89-94). 

On cross-examination, Inspector Cloud stated that at least three 

employees were on the premises on the day of his inspection, but he could 

not state with any certainty how frequently persons traveled the area from 

the scales to the trailer where no safe access was.provided. At my request, 

he drew a sketch of the area (Exh. ALJ-1), and indicated that the normal 

route of traffic to the trailer office was from the parking area, across the 

weigh scales, and directly into the trailer through the doors. The rear 

doors were located around and behind the trailer down an embankment, and he 

did not believe' that those doors were used as a regular means of access to 

the trailer (Tr. 99-114). 

With respect to Citation No. 359239 (Exh. P-11), Inspector Cloud confirmed that he issued it as a separate citation because a safe means of 

access was not provided from the weigh scales to the trailer office doorway 

at the west end of the trailer and the parties stipulated that his testimony 

regarding this citation would in all respects be the same as that given for 

Citation No. 359238 (Tr. 114-117). 

Citation No. 359240 cites a violation of 30 C.F.R. § 56.9-87 and states: 

"The 988 Caterpillar front-end loader was not equipped with an automatic, 

audible backup alarm." 

Inspector Cloud confinned that he issued the citation (Exh. P-13) after 

observing the 988 Caterpillar front-end loader operating in forward and 

reverse while hauling materials from the muck pile, and when it operated in 

reverse no alarm sounded. The machine operator advised him that a backup 

alarm had been installed on the rear wheel but had been knocked off. Upon 

inspection of the wheel, Mr. Cloud observed no alarm installed and he could 

not determine whether one had been installed. He was aware that an alarm 

had been installed on the loader in the past since he had previously cited 

the loader under the Metal and Non-Metal Mine Act and abatement was 

achieved by installing a backup alarm. The loader was a piece of heavy-duty 

mobile equipment, and since he observed no one serving as an observer, a 

backup alarm was required. Tiie loader was the only piece of equipment 

operating in the pit area and he determined that the view to the rear was 

obstructed because of the fact that the machine engine is located behind the 

operator's cab, and while the operator can see to the rear right and left, 

the view directly behind him is obstructed by the engine. He did not sit 

in the operator's seat, did not look to the rear from the seat, but did 

139 
climb up the ladder and looked in the cab to determine whether a fire 

extinguisher and seat belts were installed. 

Mr. Cloud stated that he observed no one in the vicinity of the loader, 

and he and company president John Wikel were the only ones present in addition to the loader operator. However, mine employees, such as the mill and 

crusher operator, and state and Federal mine inspectors, would have occasion 

to be in the area where the loader operated and would be exposed to a hazard 

of being run over by the loader. He believed the respondent was negligent 

and he considered the violation to be serious since anyone to the rear of 

the loader would not be aware that it was backing up without an alarm 

sounding. The loader is used to load materials from the pit to the crusher 

and is also used to move limestone materials around the area. Abatement was 

timely achieved in good faith by the installation of a backup alarm (Tr. 120-

132). 

On cross-examination, Inspector Cloud confirmed that the loader was in 

operation when he observed it and he indicated that the operator's seat is 

located in a cab which is located in front of the machine's engine. He could 

not recall the precise seat location and indicated that the cab ladder is 

approximately 6 feet high and that the loader is approximately 15 feet long. 

Based on his knowledge of such front-end loaders where the engine is mounted 

behind the operator's seat and cab, it was his belief that they all have 

obstructed views to the rear and he would cite them all for the lack of 

backup alarms (Tr. 133-139). 

Citation No. 359241 cites a violation of 30 C.F.R. § 56.14-1 and states: 

"The flywheel on the secondary crusher was not guarded." 

Inspector Cloud confirmed that he issued the citation in question (Exh. 

P-17) after observing that the crusher flywheel was unguarded. The rotating 

flywheel was approximately 4 feet in diameter and some 6 inches wide. It was 

located some 5 feet off the ground but was near a pathway where persons 

normally walked by while going to and from plant locations. The violation was 

serious because one could get their arm or clothing caught in the unguarded 

moving flywheel and serious injuries could result. Inspector Cloud observed no 

evidence or indications that maintenance was being performed on the flywheel 

(Tr. 160-170). 

Regarding the abatement, Inspector Cloud stated that a guard was installed 

over the entire flywheel to abate the citation. However, he indicated that 

the respondent did not initially abate the condition within the time given and 

that Mr. Wikel told him that he was too busy to guard the flywheel, and that 

the plant was down for maintenance and testing. However, he observed a muck 

pile at the end of the conveyor belt which led him to believe that material 

was moved on the belt and that the plant was in production. Inspector Cloud 

stated that he did not believe that the respondent acted in good faith 

because he had to issue a withdrawal order to gain compliance. He also indicated that when he returned to the mine on May 25, 1978, respondent had shut 

the plant down and he could not recall whether the flywheel guard was in 

140 
place at that time, and he was not certain as to whether the citation was in 

fact ever abated (Tr. 174-182). 

Inspector Cloud described the secondary crusher as a "portable plant" 

which is located on a flatbed mounted on wheels, and it can readily be 

moved around. He stated that his "rule of thumb" in citing guarding violations is that if an unguarded location is within 7 feet of one's reach, he 

requires a guard to be installed. He could not confirm that the pathway by 

the secondary crusher is in fact a normal travelway, but he was concerned 

that a maintenance man or electrician may have come in contact with the 

unguarded flywheel. He conceded that the crusher was accessible only from 

one side and also indicated that anyone walking on the platform above the 

flywheel would not be exposed to a hazard since he would be above it (Tr. 

200-206). 

Citation No. 359242 cites a violation of 30 C.F.R. § 56.11-2 and states: 

"The handrail on the elevated walkway at the secondary crusher was not in 

good repair." 

Inspector Cloud confirmed that he issued the citation in question on 

May 4, 1978, after observing that a section of the handrail around the 

elevated walkway on the secondary crusher was missing and broken. The 

defective rail was approximately 10 feet long and was constructed out of 

pipe. The rail was some 15 to 18 feet off the ground and the walkway led 

to a work platform around the crusher (Tr. 4-9, July 30, 1980). 

Inspector Cloud indicated that he gave the respondent a week to abate the 

citation·, and when he returned to the mine on May 16, the condition was not 

corrected and he was forced to issue a withdrawal order after the respondent 

advised him that he was "too busy" to correct the condition. The condition 

was corrected by May 25 after the respondent welded the broken pipe back in 

place and the citation was terminated at that time (Exh. P-20). 

Mr. Cloud identified the defective portion of the handrail as a broken 

weld and indicated that the plant was in operation on May 4, but was not 

certain that it was on May 16. The work area in question was a combined 

walkway and work platform, and while it was improbable that anyone could 

fall off the area, five employees and a maintenance man would have occasion 

to be in the area cited (Tr. 14-18, July 30, 1980). 

Citation No. 359243 cites a violation of 30 C.F.R. § 56.11-1 and states: 

"The first section of the ladderway to the primary crusher was missing." 

Inspector Cloud testified that he issued the citation on May 4 (Exh. 

P-23) after finding that the first section of the ladderway leading to the 

primary crusher was missing. In fact, he indicated that the bottom 4-foot 

section of the ladder had no concrete blocks in place or other means to 

allow an employee to readily step up and gain access to the working place on 

the crusher. The top of the ladder is affixed to the crusher platform and 

the bottom portion from ground level upward was missing, thereby making it 

141 
very difficult for the crusher operator to climb up on the crusher platform 

to reach his work station (Tr. 61-64, July 30, 1980). 

Inspector Cloud stated that when he returned to the mine on May 16, the 

condition had not been corrected and this prompted the issuance of a withdrawal 

order. Mr. Cloud again stated that the respondent advised him he did not have 

time to abate the condition. However, when he returned to the mine on May 25, 

the missing section of ladder had been welded in place and the citation was 

accordingly terminated at that time (Tr. 64-66, July 30, 1980). 

Citation No. 359244 cites a violation of 30 C.F.R. § 56.11-12 and states: 

"An inside handrail was not provided on the elevated walkway around the 

primary crusher." 

Inspector Cloud confirmed that he issued the citation in question on 

May 4, 1978, after observing that there was no inside handrail along the 

elevated walkway around the primary crusher. Such a rail was required so 

as to prevent an employee from falling into the crusher opening. The walkway, or platform, is at the same level as the entrance to the crusher shanty. 

Mr. Cloud fixed May 11 as the abatement time but when he returned on May 16, 

the rail had not been installed and an'order of withdrawal was issued. Abatement was finally achieved on August 17, when the respondent installed a 

6-foot handrail constructed out of pipe material. Respondent's excuse for 

not abating the condition within the time initially fixed was that he was 

"too busy." Inspector Cloud indicated that similar crushers have been 

guarded by handrails and the probability of the crusher operator falling 

into the crusher was improbable (Tr. 67-74, July 30, 1980). 

Citation No. 359245 cites a violation of 30 C.F.R. § 56.11-12 and states: 

"An inside handrail or barrier was not provided on the inside of the elevated 

operator's platform on the primary crusher." 

Inspector Cloud confirmed that he issued the citation on May 4, 1978, 

after discovering that one side of the operator's shanty on the primary 

crusher was open and exposed on the left end looking from inside tpe shanty 

out toward the crusher. The open end did not contain a barrier or protection of any kind to prevent the crusher operator from falling through the 

opening some 15 to 18 feet to the ground. The condition was not abated 

within the time fixed, and Mr. Cloud had to issue a withdrawal order to gain 

compliance (Tr. 74-82, July 30, 1980). 

Citation No. 359246 cites a violation of 30 C.F.R. § 56.14-1 and states: 

"The V-belts on the drive motor at the primary crusher were not guarded." 

Inspector Cloud confirmed that he issued the citation on May 4 after 

observing that the three-fourths-inch V-belt located on the drive motor of 

the primary crusher was not guarded. The belt was approximately 4 feet long 

and was some 3 feet from the crusher ladder. He believed that anyone on 

the ground or on the ladder would be exposed to a hazard from the unguarded 

belt in question and the hazards included the possibility of someone being 

112 
struck or grabbed by the whipping action of the belt in the event it broke 

or being caught in the belt pinch point. He indicated, however, that one 

would have to deliberately stick his hand into the pinch point in order to 

be injured. He did not know whether maintenance was being performed on the 

drive motor on the day of the inspection. The citation was abated on 

August 17, when the respondent installed a metal guard around the entire 

V-belt location (Tr. 107-121, July 30, 1980). 

Citation No. 359247 cites a violation of 30. C.F.R. § 56.14-1 and states: 

"The head pulley on the No. 2 belt conveyor was not guarded." 

Inspector Cloud stated that he issued the guarding citation in question 

after discovering that the bead pulley on the No. 2 conveyor belt was not 

guarded. The pulley was some 2 feet off the ground and he believed that the 

plant operator or maintenance man could come in contact with the pulley pinch 

point by walking near it. There was no barrier or fence to keep people away 

from the pulley and the wet surface area around it presented a hazard since 

someone could have slipped and fallen into the exposed pinch point. He 

believed the operator was negligent. The condition was not abated on May 16, 

and he issued a withdrawal order, but subsequently terminated it on May 25 

when a guard was installed. Mr. Cloud conceded that there was no regularly 

visible traveled path for employees to walk on near the pulley in question 

(Tr. 129-146, July 30, 1980). 

Respondent's Testimony and Evidence 

Dean Wikel, respondent's secretary-treasurer, testified that the mine 

office was located in a trailer which had been moved to its location about a 

week or so before the inspection conducted by Inspector Cloud. Regarding 

the bulletin board citation, Mr. Wikel testified that he had ordered a 

board 2 weeks after the new law went into effect and that it was stored in 

the office when the inspector conducted his inspection. Due to the fact 

that he was in the process of moving into the trailer he had not mounted th~ 

board on the office wall as required by the inspector. Notices were posted 

on the wall of the trailer and he pointed the bulletin board out to 

Mr. Cloud. With regard to the mine office sign, Mr. Wikel stated that he 

was not aware of the fact that one was required, although he confirmed the 

fact that Mr. Cloud did give him a copy of the law during a previous mine 

visit. 

Regarding the safe means of access citations at the weigh scales, 

Mr. Wikel confirmed that the distances an employee would have to stride from 

the scales to the office entrances at both of the cited locations were the 

same, and he believed they were somewhat less than a stride. Abatement was 

achieved by placing boards across the open gaps, supported by cement blocks. 

He believed the open gaps were less than.2 feet, and while he did not believe 

that the cited conditions presented a hazard, he conceded that it was possible that someone attempting to stride from the scales to the entrance of 

the office could have fallen and injured a leg. 

143 
Regarding the backup alann citation, Mr. Wikel described the dimensions 

of the loader in question and stated that it was equipped with a rearview 

mirror, and since the operator's seat was elevated approximately a foot and 

a half higher than the rear-mounted engine, he believed that the operator 

could see anyone directly to the rear of the machine through the rearview 

mirror. He also indicated that no one would be to the rear of the machine 

during its normal operation and that "no one in his right mind" would 

approach it from the rear while it was in operation. 

Mr. Wikel described the dimensions of the loader in question as 11 feet 

wide, 12 feet high and some 30 feet long. The backup alarm in question was 

mounted on the rear wheel of the loader, and he stated that the inspector 

insisted that it be maintained at that location and that he was not really 

concerned with rearview visibility. Mr. Wikel conceded that the loader 

which was cited was in fact equipped with an audible backup alarm prior to 

the inspection of May 4, and that it was installed on the left rear wheel. 

However, he also indicated that Inspector Cloud had previously cited a violation for the backup alarm, not because of any visibility problem, but 

because of his insistence that an alarm was required by law (Tr. 230-233). 

Mr. Wikel did not dispute the fact that the flywheel on the secondary 

crusher was unguarded. However, he indicated that during the periods May 4, 

16, and 25, 1978, the plant was not in full production and was in fact closed 

down. He identified Exhibit R-5 as a photograph of the flywheel in question 

and confirmed the fact that anyone walking by the flywheel location would 

have to walk around it to avoid it, and stated that while the crusher was 

not in full production, it was operated at times for testing and he did not 

believe that the flywheel had to be guarded while the plant was not in full 

production because no one would be around it. He indicated that he advised 

the inspector on May 4 that he was testing the crusher equipment to ascertain 

whether it was operating properly and also advised the inspector that he was 

not in full production. Employees were instructed to stay clear of the 

flywheel. 

Mr. Wikel stated that he shut the plant down after receiving the 

12 citations in question and that five were abated immediately. Since he 

was involved in the abatement of the five citations from May 4 to the 16th, 

and the plant was down, he could not work on abating the remaining seven. He 

did not intend to use the crusher until all of the citations were abated, 

and while he denied telling Mr. Cloud that he was "too busy" to abate the 

seven citations, it was possible that this was in fact the case. He was 

attempting to reopen the plant, while at the same time operating a blacktop 

business, and most of his work was directed to that business. He indicated 

that during May 1978, he was only producing, 25,000 tons of limestone 

annually, operating some 50 days a year, and that he did not operate on a 

full 5-day weekly schedule. 

Regarding the handrail on the secondary crusher walkway, Mr. Wikel testified that the walkway was not in use and that a chain was installed across it 

to prevent anyone from entering it. He abated the citation by removing the 

144 
handrail and the walkway. He conceded that someone could crawl under the 

chain but that they could not step over it. 

With respect to the primary crusher ladder citation, Mr. Wikel conceded 

that the distance from the ground to the first rung of the ladder was some 

30 inches. He also indicated that the crusher itself was a foot higher off 

the ground than its tires and that he abated the condition by adding two additional steps which then measured 16 inches to the ground and he took the tires 

off the crusher and supported it by blocks. The condition cited resulted 

from the crusher being initially higher off the ground than its usual and 

normal elevation. 

Regarding the lack of an inside handrail on the walkway around the 

primary crusher, Mr. Wikel stated that the crusher operator normally stays 

in the shanty while the crusher is in operation, leaves the shanty only to 

turn the crusher on or off, and he does not use the platform. Regarding the 

lack of a barrier or a railing on the operator's platform, he'indicated that 

at one time it ~as protected by wooden two-by-fours and windows but that 

the windows were broken out by vandals. Mr. Wikel indicated that after 

the order of May 25 was issued, the condition was abated by his physically 

cutting off the walkway, and that since the walkway no longer was in 

existence, the inspector abated the original citation (Tr. 280). 

On cross-examination, Mr. Wikel testified as to the efforts made by him 

to abate all of the citations issued by Inspector Cloud. He confirmed that 

he intended to "go down the list" of all citations and to make corrections 

as materials were received for this purpose. He also alluded to the fact 

that "we were very busy at the time 11 and that materials required for abatement were often received before abatement work could begin (Tr. 286). He 

conceded that he had copies of the regulations available to him but had 

never read them "cover to cover" (Tr. 288). He identified a photograph of 

the ladderway with the missing rungs (Exh., R-8), and testified as to his 

abatement efforts to correct the citation (Tr. 289-295). 

Mr. Wikel identified Exhibit R-9 as a photograph of the V-belt pulley 

citation, and he indicated that the location of the cited belt is some 

7 feet from where the man shown on the ladder is located. In the event the 

belt broke, he did not believe that the belt would reach the man on the 

ladder because the belt turns at a slow speed (Tr. 300). He conceded that 

no time was spent on abating this citation during the period May 4 and 16 

(Tr. 300). 

With regard to the citation concerning the alleged unguarded head pulley 

on the No. 2 belt conveyor, Mr. Wikel identified Exhibit R-10 as a photograph 

of the cited pulley location. He testified that a screening plant was located 

immediately above the pulley location~ that no one is required to be under the 

plant, and that a person would have to crawl under the plant to reach the 

pulley location which was cited and that no one would do this (Tr. 312-315). 

145 
Mr. Wikel conceded that he probably made the statement that he "was too 

busy" to abate the unguarded pulley citation, but he believed that it was 

impossible for anyone to slip and fall into the pulley and that a person 

would have to make a deliberate effort to get caught in the pulley because 

the screening plant pretty much completely enclosed the pulley area and in 

effect served as a guard (Tr. 316-317). The area beneath the pulley was 

exposed for approximately a foot, but someone would have to deliberately 

reach under the area to get caught in the pulley (Tr. 317, 321). 

and Conclusions 

Ruling on Order to Show Cause 

On April 5, 1979, Chief Judge Broderick issued an order directing the 

respondent to show cause why it should not be defaulted for failure to file 

an answer to the petitioner's petition for assessment of civil penalties. 

By letter filed April 30, 1979, respondent's counsel answered the show-cause 

order and explained the circumstances surrounding the failure by the respondent to respond.to the petition. At the hearing, the parties were afforded 

an opportunity to comment further on the show-cause order, and petitioner's 

counsel did not object to my ruling that the answer filed on April 30, 1979, 

satisfied Judge Broderick's show-cause order and that respondent should not 

be defaulted (Tr. 5-8). 

Jurisdiction 

During opening statements, counsel for the parties raised an issue concerning MSHA's enforcement jurisdiction over the respondent's mining operation. Respondent's counsel was unwilling to stipulate as to the jurisdiction, 

and I reserved my ruling on this question pending the completion of the testimony and the filing of posthearing proposed findings and conclusions. 

Although given an opportunity to file additional written arguments and briefs, 

the parties declined to do so. Accordingly, my on the jurisdictional 

question will be made on the basis of the present record. 

The record reflects that MSHA's petition for assessment of civil penalties was filed on November 1, 1978, pursuant to the then-applicable Interim 

Rules of the Commission, 29 C.F.R. § 2700.24. The rules, which became 

effective March 10, 1978, 43 Fed. Reg. 10320, did not require an allegation 

of jurisdiction by MSHA as part of its initial pleadings. However, the current rules, which became effective on June 29, 1979, 44 Fed. Reg. 38226, do 

require a jurisdictional statement as part of the proposal for assessment of 

civil penalties, and respondent is specifically required to file any denial 

of jurisdiction, 29 C.F.R. § 2700.5(a). Since the petition in this case 

complied with the applicable rules of the Commission at the time of filing, 

I conclude that the failure to include a statement concerning jurisdiction 

did not render the petition procedurally defective. 

Inspector Cloud testified that upon the effective date of the Act, he 

visited several mine operators sometime prior to May 4, 1978, including the 

146 
respondent, for the purpose of explaining the assessment program and other 

provisions of the law. He also indicated that respondent's mining operation had been previously inspected and regulated under the Metal and Nonmetal Mine Act, and that he personally had inspected the facility on four 

occasions prior to his May 4th inspection (Tr.38-39). He stated that he 

gave all operators within his area of jurisdiction copies of the new Act 

during these courtesy visits and explained the law to them (Tr. 67-69). 

Mr. Cloud also testified as to the scope of respondent's mining operation, and he stated that approximately four employees were engaged in 

activities falling within respondent's mining operations over which he had 

jurisdiction. He indicated that the mine consisted of a quarry, a maintenance shop, an office trailer, and a scale house. He observed limestone 

being mined at the quarry pit area, and it was transported by a front-end 

loader to the crusher during the time of his inspection. He also observed 

other equipment such as a shovel and truck operating around the pit area, 

observed materials being moved along respondent's plant belt system, and 

generally described the operations which were taking place. He also 

alluded to a "blacktop" operation being conducted by the respondent on the 

premises which did not fall within MSHA's enforcement jurisdiction, however, 

the quarry pit,-plant, and crushing operation did fall within his area of 

jurisdiction (Tr. 70-73, 81, 123, 133, 147-148, 174-176). 

John Wikel, president, Erie Blacktop, Inc., testified that his company 

is a family-owned corporation, and that the mine consists of some 20 acres 

employing a total of 20 employees, most of whom are involved in activities 

connected with his blacktop operations. The limestone mining operation was 

operational "once in a while in 1978," and since April of 1980, the crusher 

has not been operational. Most of the mined limestone is sold to the Corps 

of Engineers for use in shore-erosion projects, and this entails the blasting 

of large blocks of limestone. The remaining stone is crushed and sold for 

driveways and roadways. It is also used for blacktop driveway projects as 

well as a base for roadways and driveways. His company delivers most of the 

materials, and while he denied that any of the mined material crosses state 

lines, he conceded that the Corps of Engineers used his products for e~osion 

projects along the coast lines of the State of Ohio, and that he uses the 

telephone as part of his mining operations (Tr. 44-46, July 30, 1980). He 

estimated his annual production for the year 1980 to be 100 tons of materials, under 500 tons for the year 1979, and that 25,000 tons of limestone 

were mined in the year 1977. The limestone is used to maintain the shorelines and waterways of Lake Erie, and for shore-erosion projects (Tr. 47-48, 

236-237, July 30, 1980). 

Mr. Wikel also testified that his quarry operation employs four people, 

a secretary who handles the scales and the office chores, a loader operator 

and a plant operator, including himself and his father. He confirmed that 

Inspector Cloud bad previously inspected his quarry prior to the enactment 

of the 1977 law. He also confirmed the fact that he had engaged in assessment conferences in the past with MS~A concerning assessments for citations 

147 
(Tr. 174-179, July 30, 1980). Mr. Wikel also confirmed that his mining operation is 5 years old, and that at the time of the inspection he had been 

operating for 2 years, and that prior to the 1977 Act, he had been cited for 

two or three violations (Tr. 262, July 30, 1980). He also conceded that he 

had ongoing mining operations for the years 1976 and 1977 but that the inspector had never "nailed him" for any violations (Tr. 263, July 30, 1980). He 

also confirmed that he began mining as early as 1975, but that the lack of 

capital and the expense involved in the purchase of a primary and secondary 

crusher prevented them from engaging in a fullscale operation at that time. 

He also admitted that "we cut a few corners and it caught up with us" (Tr. 

264, July 30, 1980). 

Petitioner's Exhibit P-37 is a mine profile indicating that the mine 

operated on a one-shift, 8-hour a day basis, employing four people, and that 

the operation was an open-pit, single-bench, crushed limestone operation, 

and this information remains unrebutted, except for Mr. Wikel's contention 

that he was operating at less than full production at the time the citations 

issued. 

On the basis of all of the aforementioned evidence and testimony adduced 

in this proceeding, I am convinced that at the time of the inspection and 

issuance of the citations in question, respondent was operating a mine within 

the meaning of the Act, that limestone was in fact mined, crushed, processed, 

and sold commercially, and that it was used by the Corps of Engineers for 

cert!'lin erosion projects on Lake Erie, as well as for road and paving 

projects. Although the inspector conceded that respondent's blacktop· business was not subject to MSHA's enforcement jurisdiction, I conclude and 

find that the open-pit and quarry-limestone mining operations were in fact 

mining within the meaning of the Act, and that these mining operations 

"affected commerce." I also take note of the fact that respondent's mining 

operations were regulated by MSHA under the Metal and Nonmetal Mine Act, rmd 

that respondent had never denied that it was subject to MSHA's enforcement 

jurisdiction. Under these circumstances, I conclude that petitioner has 

established by a preponderance of the evidence that respondent's mining 

operations are subject to MSHA's enforcement jurisdiction, and any suggestions to the contrary are rejected. 

Findings and Conclusions 

Fact of Violations 

Citation No. 359236 

Section 109(a) of the Act requires that a conspicuous sign be posted 

designating the official mine office. The evidence adduced in this case 

establishes that such a sign was not posted, and Respondent has not rebutted 

this fact. The citation is AFFIR.."1ED. 

148 
Citation No. 359237 

Section 109(a) of the Act requires that a bulletin board be at the mine 

office or located: 

[A]t a conspicuous place near an entrance to a mine, and that 

it be placed in such a manner that orders, citations, notices 

and decisions required by law or regulations to be posted, 

may be posted thereon, and be easily visible to all persons 

desiring to read ·them, and be protected against damage by 

weather and against unauthorized removal., 

The testimony and evidence establishes that the required bulletin board 

was not in fact installed in the mine office at a conspicuous place. Although 

the respondent had purchased a bulletin board in order to comply with the Act, 

it was apparently located on the floor against a desk and had not been 

permanently installed on the mine office wall so as to readily facilitate 

the posting of the required material. In the circumstances,, I find that a 

technical violation occurred and the citation is AFFIRMED. 

Citation Nos. 359238 and 359239 

These citations allege violations of section 56.11-1 for the failure by 

the respondent to provide a safe means of access from both ends of the weighing scales to the trailer which served as the mine office. Access could only 

be gained by someone either jumping or taking a broad step from the edge of 

the scales for a distance of approximately 3 feet to the entrance doors of 

the trailer. The elevated area beneath the opening between the scale and ~he 

door entrances was approximately 4 feet to the ground below and the inspector 

was concerned that someone could fall beneath the opening while attempting to 

step or jump over the areas in question. Although the trailer had doors to 

the rear, the inspector did not believe they were used as the regular means 

of access to the trailer, and he believed the front doors were used for this 

purpose. 

Respondent does not dispute the fact that an employee attempting to enter 

the trailer from the scales area would have to stride over the open space 

between the scales and the trailer door, and Mr. Wikel candidly conceded that 

someone attempting to do this could possibly fall into the exposed area and 

be injured. The standard requires that a safe means of access be provided 

to all working places. Respondent has not rebutted the fact that the mine 

office is such a working place, and that the normal means of access was from 

the scales, and I conclude and find that the trailer office falls within 

the broad definition of "working piace" found in definitions section 56.2, 

and I further find that petitioner has established the violations by a 

preponderance of the evidence presented in this case. Accordingly, both 

citations are AFFIRMED. 

149 
Citation No. 359240 

The citation here charges the respondent with failing to equip a frontend loader with an automatic audible backup alarm. The cited mandatory standard, section 56.9-87, states as follows: 

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. 

Inspector Cloud conceded that he did not sit in the operator's seat or 

look to the rear of the cab to determine that the view to the rear was 

obstructed (Tr. 137-138). He also believed that all Model 988 Caterpillar 

front-end loaders, such as the one cited, as a class, have obstructed views 

to the rear and that his practice is to always cite section 56.9-87 when he 

encounters such equipment without a backup alarm. He conceded that he does 

not, as a matte·r of practice, or on a case-by-case basis, make any independent 

finding that the view to the rear is in fact obstructed (Tr. 138, 159). He 

also alluded to an MSHA directive dealing with the requirements for backup 

alarms on front-end loaders, but it was not produced during the hearing (Tr. 

160). Respondent testified that since the operator's seat on the end-loader 

in question was elevated above the rear-mounted engine, the operator could 

observe anyone directly to the rear of the machine through the rearview 

mirror. Conceding that the loader had previously been cited by the inspector, 

and that one was installed to abate that citation, respondent maintained that 

the previous citation was not based on visibility problems, but was based on 

the inspector's belief that the law required it anyway (Tr. 230-233). 

As I interpret the standard, the first sentence requires audible warning 

devices on heavy-duty mobile equipment. The second sentence requires the 

installation of an automatic reverse signal alarm which is audible above the 

surrounding noise level except that none is required when there is an observer 

present to signal when it is safe to back up. In this case, there is no evidence that an observer was present, and the exception does not apply. Therefore, the question presented is whether petitioner has established a violation 

even though the inspector did not ascertain whether the rear view from the 

end-loader in question was in fact obstructed. I think not. I conclude that 

as a condition precedent to proving a violation, petitioner must establish 

that the view to the rear was in fact obstructed; if it was not, no automatic 

reverse alarm was required. 

found 

tion. 

which 

which 

131), 

In this case, it is clear that the citation issued because the inspector 

no operative backup alarm installed on the piece of equipment in quesIt is obvious that he was concerned about the lack of a backup alarm 

is normally affixed to one of the rear wheels of the end-loader and 

is activated autonatically when the machine is placed in reverse (Tr. 

and he conceded that had he observed someone acting as a flagman he 

150 
would not have issued the citation (Tr. 123). Since there is no evidence 

that the inspector established that the view to the rear was obstructed, 

I conclude that the petitioner has failed to establish a violation of the 

cited standard and the citation is VACATED. 

Citation No. 359241 

With regard to the lack of a guard on the flywheel of the secondary 

crusher, Inspector Cloud initially testified that the flywheel was some 

5 feet off the ground and projected out some 4 to 6 inches from the 

crusher. He also testified that someone walking around the mill building 

would pass by and under the unprotected flywheel location and contact the 

exposed flywheel (Tr. 164-165). In describing the physical layout of the 

s·econdary crusher, he testified that the crusher and flywheel were mounted 

on a flatbed with wheels attached to it and that it is a portable piece of 

equipment which can be moved to different locations. However, he could not 

remember the width of the crusher or how far the flatbed or wheels extended 

out from the sides of the flywheel location (Tr. 200-201). When shown a 

sketch of the crusher prepared by respondent's witness (Exh. R-1), Mr. Cloud 

stated that he could not remember what it looked like (Tr. 201-202). 

In response to questions from petitioner's counsel regarding the physical 

characteristics of the secondary crusher in question, Mr. Cloud could not 

remember whether the flatbed itself was wider than the crusher which was 

mounted on top of it, and he could not remember whether the flywheel itself 

or any other parts near it required to be serviced or lubricated (Tr. 216-

217). He did state, however, that the crusher was only accessible from one 

side of the flatbed, and while someone could walk on the elevated platform 

on the same side of the crusher, they would not be exposed to the flywheel 

because they would be walking above it (Tr. 217). 

In response to a question from me as to the theory of citing the respondent for the alleged unguarded flywheel location, Inspector Cloud responded 

that he uses a "rule of thumb" rule followed by some of his fellow inspectors 

which requires any unguarded piece of equipment within a 7-foot reach of anyone to be guarded (Tr. 212). Petitioner's counsel conceded that "if the evidence shows that this flywheel recessed 5 feet away from the edge of that 

flatbed truck, I submit nobody could fall into i t 11 and "then it wouldn't need 

to be guarded" (Tr. 228). 

In defense of the citation, respondent produced a photograph of the 

secondary crusher and flywheel location in question (Exh. R-5). Respondent 

does not dispute the fact that the flywheel was not guarded. Its defense to 

the citation is based on the fact that someone approaching the exposed flywheel would necessarily have to walk around it to avoid it because of the 

extension of the flatbed wheels. Respondent also defends on the basis of 

its assertion that the plant was not in full production when the citation 

issued and respondent did not believe he was required to guard the flywheel 

because no one was around it. These defenses are REJECTED. 

151 

'" 
The critical question in this case is whether or not the exposed flywheel 

was located in such a position or location as to expose someone approaching 

it to injury if he came into contact with it. Although the inspector could 

not remember any of the essential details necessary to enable him to make an 

informed judgment and apparently applied his 11 7-f oot rule of thumb" in this 

case, the fact is that Photographic Exhibit R-5 clearly shows the exposed 

flywheel protruding from the edge of the crusher. Further, while it would 

appear that one passing by that location would have to walk around the 

flatbed wheels, the fact is that the flywheel was exposed to anyone passing 

by its unguarded location and respondent's witness Wikel candidly admitted 

that employees were warned to stay clear of it. In these circumstances, I 

am constrained to find that petitioner has established a violation in this 

case and the citation is AFFIRMED. However, I would urge petitioner to 

reexamine the practice of inspectors using their own written "rules of 

thunb" and to insure that fully document all of the circumstances 

presented in a given case before automatically concluding that a particular 

piece of equipment needs to be guarded. 

Citation No. 359242 

This citation was issued after the inspector found a portion of the handrail on an elevated walkway at the secondary crusher to be broken and in disrepair. Section 56.11-2 requires that such areas be mainta.ined in good 

condition, and, while a handrail was in fact provided, it was not maintained 

in good condition, and respondent does not dispute this fact. Respondent's 

defense is that the walkway was not in use and was protected by a chain across 

it. However, respondent conceded that someone could crawl under the chain and 

that it did not prevent anyone from using the walkway. I find that petitioner 

has established a violation and the citation is AFFIRMED. 

Citation No. 359243 

The testimony of the inspector regarding the mis bottom portions of 

the ladderway to the secondary crusher supports a violation of section 56.11-1. 

The missing portion prevented a person from readily and easily climbing the 

ladder and the missing portion was such as to present a possible mishap while 

one was attempting to climb the ladder. Respondent does not dispute the fact 

that at least 30 inches of the ladder were missing, and its defense is based 

on its abatement efforts. The citation is AFFIRMED. 

Citation Nos. 359244 and 359245 

These citations were issued after the inspector found that there were no 

handrails around the elevated primary crusher walkway or a barrier inside the 

open end of a shanty where the crusher operator was apparently stationed while 

operating the crusher. The respondent does not dispute the fact that handrails were not installed at the l.ocations where the inspector believed they 

should have been, and its defense is based on the assertion that the operator 

usually remains in the shanty and only comes out to turn the crusher on and 

off. As for the lack of inside barriers, respondent asserts that windows 

and wooden framing were previously installed but were destroyed by vandals. 

152 
Section 56.11-12 requires.that travelways through which men or materials 

may fall shall be protected by railings, barriers, or covers. It is clear 

from the testimony and evidence adduced in this case that the required protective barriers or railings were not installed so as to protect the crusher 

operator or others in the area from falling through the open end of the 

shanty or the walkway around the crusher. Although the area inside the 

shanty itself is technically not a travelway, the definition of that term as 

found in section 56.2 is broad enough to cover the area inside the shanty. 

The inspector testified that he considered the area a "travelway11 even though 

he described it as a "platfonn" because the crusher operator and others walk 

back and forth along the area (Tr. 90). While I consider this to be a rather 

strained interpretation of the standard, I still believe that the intent of 

the protective barrier requirement is to prevent someone from walking or 

falling through and over the edge of the shanty opening, which in fact was 

a rather small and confined area of approximately 6 feet by 6 feet (Tr. 93). 

The citations are AFFIRMED. 

Citation No. 359246 

The inspector issued this citation after he determined that an unguarded 

V-belt on the drive motor at the primary crusher was not guarded. He described 

the location of the belt as some 3 feet from the crusher ladder, and stated 

that the belt was some 4 feet long. His concern was that someone could become 

entangled in the belt pinch point and that someone could have been struck by 

the belt if it broke. 

The cited standard, section 56.14-1, requires that certain exposed moving 

machine parts which may be contacted by persons be guarded. The inspector's 

rationale in issuing the citation was to protect an employee from reaching 

into the exposed pinch point. In this regard, there was much confusion during 

the hearing as to the precise location of the cited belt in question. Respondent 1 s witness Wikel produced a photograph of the location of the belt (Exh. 

R-9) and he was absolutely sure of its location. On the other hand, Inspector 

Cloud was unsure as to the location of the belt and could not state that the 

location shown in the exhibit was the belt which he cited (Tr. 306-311). 

Having viewed both witnesses on the stand during the course of the hearing, 

I find·respondent's witness Wikel to be a credible and straightforward witness 

and find his testimony credible and I accept it in support of the location of 

the belt in question. Further, after viewing the photograph and reviewing the 

testimony of the witnesses, I fail to understand how anyone could come to the 

conclusion that someone climbing the ladder depicted in the photograph could 

come in contact with the exposed V-belt in question. Accordingly, Inspector 

Cloud's reliance on section 56.14-1 is simply not supportable and the citation is VACATED. 

With regard to the inspector's assertion that someone could be struck by 

the whipping action of the belt in the event it broke, aside from the fact 

that I find his testimony in this regard to be less than credible and sheer 

speculation, if this was his concern he should have cited the proper standard, 

namely, section 56.14-2. 
Citation No. 359247 

The inspector cited a violation of section 56.14-1 after observing an 

unguarded head pulley on the No. 2 belt conveyor. The cited standard 

requires that such pulleys which may be contacted by persons and which may 

cause injuries to persons be guarded. In support of the citation, Inspector 

Cloud first testified that anyone could walk right up to the exposed pulley 

and that with loose clothing on could be pulled into the pinch point. He 

also testified that there were no obstructions to prevent anyone from 

reaching the pulley and that maintenance men, salesmen, and electricians 

would be in the area and would be exposed to the obvious hazard (Tr. 130-

132). However, he could not recall the specific location of the pulley, 

the type of material moved on the belt, and could not recall the particular 

crusher where the pulley was located (Tr. 137-138), nor could he remember 

whether the conveyor had a lock-out device (Tr. 145). 

Respondent's witness Wikel identified a photograph (Exh. R-10) as the 

conveyor belt cited by the inspector and he stated that Inspector Cloud was 

in error when he identified it as a head pulley. Mr. Wikel stated that the 

pulley was in fact the tail pulley and he conceded that it was the location 

which concerned the inspector (Tr. 312-313). Mr. Wikel described the pulley 

location and indicated that a screening plant extended beyond the unguarded 

pulley, and stated that someone would have to crawl under the screening 

apparatus to reach the pulley (Tr. 314). He also testified that the pulley 

was practically totally enclosed by the screening plant and he believed 

that it served the function of a guard since anyone crawling under the 

plant would have to reach in and under a 1-foot opening to contact the pulley (Tr. 316-317). 

When called in rebuttal, Inspector Cloud stated that he could not recall 

whether a screening plant was installed at the pulley location in question, 

but he has observed similar screening plants attached to pulleys such as the 

one in question (Tr. 318). After viewing Photographic Exhibit R-10, Inspector 

Cloud conceded that one would have to reach under and upward over the screening 

plant to contact the pulley, expressed serious doubt that anyone sttnnbling or 

near the pulley location would come in contact with it, and indicated 

that no one would have any reason to be near the pulley location (Tr. 323). 

Upon careful review and examination of the inspector's testimony in support of the citation, I cannot conclude that petitioner has proved a case. 

This is a classic example of the failure by an inspector to completely 

document his observations made at the time of the issuance of the citation 

so as to clearly and concisely support it if challenged later during a contest. Here, the inspector first testified that anyone casually walking by 

the exposed pulley could contact it and be pulled in by the action of the 

pulley catching on loose clothing. When confronted with the respondent's 

testimony and photograph of the pulley location in question, which I find 

credible, the inspector changed his position and testified that no one 

would have any reason to be near the pulley and even if he were it was 

highly unlikely that he would contact the pulley which was apparently 

154 
obstructed by a screening plant installed over most of it. The citation 

is VACATED. 

Gravity 

Citation Nos. 359236 and 359237 concerning the bulletin board and mine 

sign are nonserious violations and the inspector conceded this was the case. 

With regard to the safe access citations, Nos. 359238 and 359239, I conclude 

and find that these were serious. Failure to provide an easy and safe ramp 

for one to cross from the scales to the trailer which served as the mine 

office presented a hazard to anyone attempting to negotiate the open space 

between the two, particularly to the secretary whose day-to-day duties were 

in the office. Further, respondent conceded that it was possible for someone to slip and fall and be injured while attempting to stride or cross over 

the area in question. 

With regard to the unguarded flywheel, Citation No. 359241, while it 

is true that one would have to walk around the flatbed to come into close 

proximity of the exposed unprotected and rather large flywheel, the fact is 

that respondent seemingly recognized the potential hazard involved since 

respondent had warned its employees to stay clear of the flywheel. While 

it may also be true that at certain periods when the crusher was down for 

lack of production, the exposed flywheel posed no hazard, it nonetheless 

remained unguarded during periods when production was going on. In these 

circumstances, I find that this violation was serious. 

With regard to the handrail and ladder citations, Nos. 359242, 359243, 

359244, and 359245, I find that all of these were serious violations. The 

defective railing which was corrected by being rewelded was in disrepair and 

not securely in place. Anyone walking by and grabbing the rail would have 

nothing secure to hold onto, and any chain which may have been in place 

would not have prevented one from entering the area. As for the lack of 

a barrier or railing at the exposed end of the crusher shanty, the inspector 

testified that the crusher was operating when he observed the condition and 

that the crusher operator was in the shanty. Although it may have been 

improbable that he would have walked off the exposed edge and fallen to the 

ground below, the area in question was rather confined and did present a 

hazard. The same could be said for the lack of a railing outside the 

shanty and along the travelway by the crusher. Failure to provide a 

railing at that location presented a hazard to the crusher operator. The 

missing bottom portion of the ladder which was cited made it difficult for 

one to up and grab the ladder handrail and presented a possible slip 

and fall hazard. Further, while the testimony presented reflects that 

respondent's plant may have been out of production during certain periods 

of time, the fact is that when the conditions were cited by the inspector 

the crusher and plant were in production and respondent has not rebutted 

this fact. 

155 
Good Faith Compliance 

Inspector Cloud agreed that the citations concerning the bulletin board, 

office sign and the lack of safe access to the mine office were all abated 

in good faith. Although the citations show May 11, 1978, as the time fixed 

for abatement, the inspector's next opportunity to return to the mine site 

was May 16, 1978, and that is when he terminated the citations after finding 

that the conditions cited had been abated (Tr. 118). Accordingly, as to 

Citation Nos. 359236, 359237, 359238, and 359239, I conclude and find that 

respondent exercised good faith in achieving compliance with the requirements 

of the law and regulations cited. 

With regard to Citation Nos. 359241, 359242, 359243, 359244, and 359245, 

the record reflects that they were all initially issued on May 4, 1978, and 

that Inspector Cloud fixed May 11, 1978, as the da~e for the abatement of the 

conditions cited. The subsequent withdrawal orders were all issued on May 16, 

1978, when Inspector Cloud returned to the mine and found that the conditions 

cited had not been corrected. In view of the fact that none of these citations were corrected, Mr. Cloud did not believe that the respondent acted in 

good faith to achieve compliance. 

Mr. Cloud testified that when he returned to the mine on May 16, 1978, 

Mr. John Wikel advised him that he had been "real busy11 and had not started 

on any repair work in connection with the outstanding citations, and after 

conducting a spot inspection he issued seven noncompliance orders. Mr. Wikel 

advised him at that time that the plant had been shut down for maintenance 

and that it was being tested rather than in full production. However, 

Mr. Cloud stated that 'he observed some muck and materials at the end of a 

conveyor belt and he determined that the plant was in operation and in 

production and that is why he issued the withdrawal orders (Tr. 175-176, 

July 29, 1980). Mr. Cloud also stated that Mr. Wikel did not produce any 

purchase orders indicating that any materials required for abatement had 

been purcha·sed or ordered and simply told him that "they had been too busy" 

and his notes confirmed this statement (Tr. 178). 

Mr. Cloud testified further that he returned to the mine subsequent to 

May 16, 1978, and believed that it was within the "next 60 days." At that 

time, he was advised that the plant was not in operation, conducted no further 

inspection and left the property (Tr. 182). He returned again several times 

during the next 30 days and was again told that the plant was still not in 

operation and each time he left without conducting additional inspections (Tr. 

183). However, he later testified that when he returned to the mine on 

May 25, 1978, he inspected the mine and abated five of the outstanding 

orders after determining that the conditions had been abated, but he could 

not recall which two remained outstanding (Tr. 193). 

The broken handrail on the secondary crusher was corrected by welding it 

back in place and the inspector terminated the order on May 25, 1978 (Tr. 15, 

July 30, 1980). The missing bottom rungs of the access to the crusher were 

corrected and that order was also terminated on May 25 (Tr. 65). 

156 
Regarding the handrail on the walkway and platform on the crusher, the 

inspector testified that it was not corrected on M:ay 25, and that he subsequently abated the order on August 17, after repairs were made (Tr. 71). 

He also indicated that a piece of pipe and several posts were all that were 

required to make repairs, and assuming the materials were available, he 

believed the condition could have been corrected in a matter of hours (Tr. 

70), but he had no way of knowing whether the condition may have been 

corrected prior to August 24 (Tr. 71). He also confirmed that Mr. Wikel 

advised him that the crusher had not been in operation from May 16 to May 25 

(Tr. 73). As for the exposed end of the shanty which was not guarded by a 

handrail or barrier, that condition was not abat~d on May 25, but 

Mr. Cloud subsequently terminated the order on August 17 when he found 

that repairs had been made (Tr. 80). 

Mr. Cloud testified that his next visit to the mine was on September 11, 

1978, but he could not state whether the two outstanding orders had been 

abated. Moreover, he did find that a guard for the flywheel for the 

secondary crusher was not in place but was lying in a muck pile (Tr. 196). 

Petitioner's counsel conceded that he considered this incident as evidence 

that a guard.had been constructed and does not establish noncompliance 

with the original citation (Tr. 197). As a matter of fact, respondent 

produced an original copy of the termination of the flywheel citation 

and order and it shows that the order was terminated by Inspector Cloud 

on May 25, 1978 (Exh. R-2). 

Mr. Wikel stated that the reason the broken handrail on the secondary 

crusher was not repaired on May 16 was that the crusher was inoperative and 

the fuses were out and the motor was off. ·Under the circumstances, he did not 

believe he had to make the repairs since the crusher was inoperative. He 

advised the inspector that the crusher was down and the inspector advised 

him that it made no difference (Tr. 48-49, July 30, 1980). As for the 

purported statement made to the inspector that respondent was "too busy" 

to make the rs, Mr. Wikel denied making them and stated that if they 

were made they were probably attributable to his father (Tr. 259). However, 

he also stated that during the time period in question, "it was very possible 

that we were too busy" (Tr. 261), and he went on to explain that all of his 

efforts were directed to his blacktop business and that the stone quarry 

end of the business was still in its infancy and new equipment was being 

purchased and installed (Tr. 262-265). 

Respondent's witness Wikel testified that very little mining of materials 

took place in the years 1977 and 1978, and conceding that abatement may have 

taken as long as 60 days, Mr. Wikel attributed the delays to the fact that the 

crusher and plant were idle and out of production, and he did not believe that 

any violations could have occurred during these periods because of his belief 

that inspectors have no authority to inspect his operation when he is not in 

production (Tr. 235-239, July 30, 1980). He candidly conceded that some of 

the citations were not corrected until after May 25, and stated "to be honest 

with you, I guess I must have been out in left field some place, I felt we 

didn't operate, and I didn't see the safety factor" (Tr. 249). He also 

157 
stated that he decided to shut the operation down because he was unable to 

abate all of the citations on time and stated that the inspector did not 

discuss any abatement times with him and simply advised him that he "wasn't 

the Judge" (Tr. 251-252). 

While it is true that the respondent failed to abate five of the citations within the time fixed by the inspector, the fact is that all of the 

cited conditions were ultimately corrected and the citations terminated. 

While failure to abate within the time fixed by the inspector would normally 

support a finding of lack of good faith on the part of the respondent, I 

conclude and find that the circumstances surrounding the citations in 

question as discussed above do not warrant any substantial increases in 

the penalties assessed by me simply because respondent failed to abate 

within the time initially fixed by Inspector Cloud. I cannot conclude that 

respondent is a reckless or irresponsible mine operator who deliberately 

sought to avoid compliance. While it is true that respondent was dilatory 

in achieving compliance precisely within the timeframe initially fixed by 

the inspector, the fact is that for the most part the inspector did not 

discuss abatement with the mine operator, made his own judgments in this 

regard, and even though he admitted that mine management had advised him 

that the plant was out of operation and nonproductive on several occasions 

when he returned to the mine, the inspector nonetheless sought to rely on 

the standard "too busy" excuse as the basis for his opinion that the 

respondent exhibited a total lack of good faith in achieving compliance. 

In addition to the foregoing, I cannot ignore the fact that the record 

in this case supports a conclusion that there was a strained relationship 

hetween the inspector and mine management during the time periods in question, 

and this continued during the course of the hearing and was personally 

observed by me through the observations of the demeanor of the inspector as 

well as mine management during their testimony. It seems to me that voluntary 

compliance with the law can best be achieved through an atmosphere of mutual 

cooperation between an MSHA inspector and mine management rather than through 

continued adversary confrontations between the parties and I would hope that 

MSHA as well as mine management will consider this in any future encounters. 

During the course of the hearing, petitioner's counsel conceded that the 

circumstances concerning the citations in this case do not suggest flagrant, 

deliberate, or reckless disregard for safety, and counsel candidly admitted 

that it was altogether possible that the plant was in fact closed down and 

the equipment was not used after the withdrawal orders were issued (Tr. 59, 

81). Further, after careful review and consideration of all of the testimony 

concerning the abatement of the citations in this case, I cannot conclude that 

the respondent was grossly negligent in failing to correct the conditions 

cited. To the contrary, I conclude and find that the citations which have 

been affirmed resulted from the failure by the respondent to prevent or 

correct the conditions which he should have been aware of, and its failure 

in this regard constituted ordinary negligence as to each of the citations 

in question. 

158 
Size of Business and Effect of Civil Penalties on Respondent's Ability to 

Remain in Business 

The testimony and evidence adduced in this case supports a finding that 

respondent is a very small family-owned mine operator. The parties stipulated 

that any penalties assessed in this case will not adversely affect respondent's 

ability to remain in business and I adopt this as my finding on this issue. 

History of Prior Violations 

The parties stipulated that the respondent has no prior history of violations and I adopt this as my finding on this question and I have considered 

this in the assessments levied for the citations in question. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, and taking into 

account the requirements of section llO(i) of the Act, I conclude and find 

that the following civil penalties are reasonable and appropriate in the 

circumstances and they are imposed by me for each of the citations which 

have been affirmed: 

Citation No. Date 30 C.F.R. Section Assessment 

359236 5/ 4/78 109(a)--Act $ 5 

359237 5/ 4/78 109(a)--Act 5 

359238 5/4/78 56.11-1 40 

359239 5/ 4/78 56.11-1 40 

359241 5/ 4/78 56.14-1 125 

359242 5/4/78 56.ll-2 50 

359243 5/4/78 56.11-1 25 

359244 5/ 4/78 56.11-12 125 

359245 5/ 4/78 56.ll-12 125 

$540 

On the basis of the foregoing findings and conclusions, the following 

citations are VACATED: 

Citation No. 

359240 

359246 

359247 

Date 

5/4/78 

5/ 4/78 

5/ 4/78 

30 C.F.R. Section 

56.9-87 

56.14-1 

56.14-1 

ORDER 

The respondent IS ORDERED to pay civil penalties in the amounts shown 

above, totaling $540 within thirty (30) days of the date of this decision 

and order, and upon receipt of the same by MSHA, this matter is DISMISSED. 

v(}lot tJJ;r,/~fl- 8ej~· lioutras 

/J,, ~~ Administrative Law Judge 

159 
Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

James E. McGookey, Esq., Meuhlhauser, Lucal & Pfefferle, P.O. Box 790, 

Sandusky, OH 44870 (Certified Mail) 

160 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 9 f881 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

OLIVER M. ELAM, JR., COMPANY, INC., 

Respondent 

Docket Nos. VINC 78-447-P 

VINC 79-12-P 

VINC 79-40-PM 

VINC 79-176-P 

VINC 79-177-P 

VINC 79-231-P 

LAKE 79-11 

LAKE 79-110 

LAKE 79-281 

Elam Dock 

DECISION 

Appearances: 

Before: 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department 

of Labor, Cleveland, Ohio, for Petitioner; 

William H. Jones, Jr., Esq., Ashland, Kentucky, for Respondent. 

Judge Lasher 

This proceeding arises under section lOS(b) of the Federal Mine Safety 

and Health Act of 1977. A hearing on the merits was held in South Point, 

Ohio, on July 24, 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 bench decision containing findings, 

conclusions and rationale appears below as it appears in the transcript, 2:._/ 

other than for minor corrections. 

These proceedings arise upon the filing of petitions by 

the Secretary of Labor for assessment of several (16) penalties in the nine dockets involved. The Respondent raised 

a jurisdictional issue in its answer which subsequently has 

crystalized into this question: "Whether or not Respondents 

docking facility is a 'coal or other mine', as that term is 

defined in the Mine Safety and Health Act of 1977? 11 [30 U. S.C. 

§§ 802(h)(l) and 802(h)(2)]. 

1/ Tr. PP• 68-76 

2.J Transcription of the hearing was performed by a new reporter necessitating substantial correcting of the record. 

161 
Section 802(h)(l) of the Act defines coal or other mine 

for the purpose of the Act generally. Section 802(h)(2) 

defines coal mine for purposes of titles II, III, and IV of 

the Act and I note specifically that title II thereof provides for various detailed statutory health and safety 

standards, in addition to the foregoing definition. The 

definition of "Work of preparing the coal", as provided in 

section 802(a) of the Act provides the statutory language 

which is to be interpreted in this proceeding. The parties 

have provided a stipulation which has placed into evidence a 

record of the answer of the Respondent to interrogatories 

propounded by Petitioner. In addition, the evidence and 

record consist of four photographs introduced by Respondent 

which show various activ~.ties being carried on at the Respondent's commercial dock some three years ago. In addition, 

the testimony of Inspector Thomas Luce was received on behalf 

of MSHA and the testimony of superintendent David Manning and 

Oliver M. Elam, Jr., president of Respondent, were received. 

The above, in addition to the official case file, constitutes 

the evidence and record upon which the prime jurisdictional 

issue is to be decided. 

The Respondent is a small family corporation which does 

business as a commercial dock at Coal Grove, Ohio, in the 

vicinity of Ashland, Kentucky, and Ironton, Ohio. The 

Respondent has 11 employees who work interchangably between 

the dock and the construction .aspect of the Respondent which, 

in essence, is an equipment rental business involving some 

50 pieces of construction equipment including cranes, trucks, 

and bull dozers. Respondent usually has three of these 

employees present at its commercial docking facility on the 

Ohio River. The Respondent loads some 300,000 tons of coal 

during its busiest years and during the last two years has 

loaded approximately 200,000 tons of coal at this dock. In 

addition the docking facility loads other materials such as 

steel ingots, pipe, and the like, at this docking facility 

and the percent of tonnage loaded on to barges at this docking facility attributal to coal ranges from approximately 

40 to 60 percent. Additional material is processed through 

the docking facility in a reverse direction, that is material 

is brought to the facility by barges from whence it is processed through the dock and loaded on to the trucks for 

delivery to its ultimate destination. The dock facility is 

utilized to unload tar pitch, which is a coal derivative and 

which is directly loaded from the loading bin on to barges 

without the use of a crusher which (itself) is part of the 

system of movement of material at the dock. 

With respect to coal, Respondent does business with coal 

brokers, some four or five in number, who are not coal mine 

162 
operators and who arrange with Respondent to receive delivery 

of the coal on Respondent's premises and arrange with Respondent to load the coal on barges to deliver the coal to such 

customers as power plants and factories elsewhere. 

Respondent has no business arrangements, contracts, or 

dealings directly with the coal mine operators who initially 

extract the coal nor does it have any arrangement with the 

customers who ultimately accept delivery of the coal off the 

barges at the point of the ultimate destination of the coal. 

The contract between the coal brokers and Respondent is not 

in writing and it does not have as any part of its basis an 

agreement by Respondent to crush the coal. The coal is 

indeed crushed by Respondent as part of its movement of the 

coal from the place on the premises where the coal is 

initially stockpiled to the barges. I find on the basis of 

the evidence that the only purpose the coal is crushed is 

for the Respondent's ease of loading. Stated another way, 

the Respondent crushes the coal in furtherance of its own 

business as a loading dock and as an accomodation to itself 

to avoid the problems raised (1) by coal falling off the conveyor belt and (2) by large pieces of coal falling into the 

loading bin which would necessitate going into the bin and 

manually breaking up the coal so that it can be expeditiously 

transported by another conveyor belt on to the barges. It 

also appears from the interrogatories submitted as part of 

this record that crushing the coal enables a larger amount of 

the same to be placed in a given space on the barges. Since 

Respondent is paid on the basis of so many dollars per ton I 

would infer from this record that it would be economically 

feasible for Respondent to load as much coal as possible on 

to each barge. There is no evidence that Respondent. contracts 

to either wash, dry out, or size coal. Respondent contracts 

with coal brokers only to accomplish the loading of coal 

delivered to its premises by trucks on to barges and perhaps 

on occasions to accomplish the reverse process of unloading 

material from barges and loading on to trucks. 

For purposes of this proceeding, the evidence indicates 

that the coal is first delivered to Respondent's premises by 

trucks which unload the same in stockpiles located on Respondent 1 s premises. The coal goes into a bin where it proceeds 

ultimately on to a conveyor which delivers it to a crusher 

which is approximately 5 feet wide, 6 feet long, and 6 feet 

high. I note that at one point the inspector indicated that 

its measurements were 6 feet in each of the three respects. 

The crusher does not have screens or grates which are customarily used to size the coal and the crusher used by 

Respondent is an American Ring Crusher which breaks the coal 

essentially into one size after which the coal moves on a 

163 
conveyor belt on to a barge. The first conveyor belt 

described in this process is 35 feet long, and it leads from 

the bin to the crusher. The second conveyor belt from the 

crusher to the barge is approximately 150 feet long. While 

the size of the coal so crushed by Respondent may be acceptable to power plants or perhaps other ultimate users of the 

coal as an energy source, there is no indication that this 

is part of the business service which Respondent sells to 

anyone, that is, the coal brokers, the coal mine operators 

who extract the coal in the first place, or the ultimate 

consumers thereof. 

In addition to the coal, the only other material which 

Respondent receives, processes, loads, or unloads at its 

docking facility having any relevance to the. question of 

whether or not it is a coal mine is tar pitch. This tar 

pitch is delivered to Respondent's premises in the form of 

a pellet and is dumped directly into the bin from which it 

goes directly on to the barge without being moved through the 

crusher. It is clear that no coal is crushed which is not 

put on barges and only on one occasion in furtherance of a 

special contract with a glass company, was any uncrushed coal 

loaded onto barges at Respondents dock. The Respondent, 

which I would interject here, is a Kentucky Corporation, does 

not mine coal nor does it or any of its stockholders or officers own any mineral interest. Nor does it purchase coal for 

resale as a coal broker. At the dock, the Respondent does 

not furnish equipment, such as the front-end loader, for 

handling of coal. The coal is handled and weighed by 

employees of the various brokers. 

Respondent has been engaged in this process of loading 

coal since approximately 1975. It has operated the commercial 

dock, however, unloading other materials, since 1966. The 

facility for loading coal previously described was put in in 

1975 and the crusher was an integral part of this system from 

the beginning. The system was originally put in because a 

company in West Virginia, described by Superintendent Manning 

as a group of attorneys, wanted a place to load coal. After 

Respondent installed the loading system, the arrangement fell 

through and a year and a half elapsed during which time the 

crusher and the other coal loading system was not utilized. 

Ultimately, Respondent, which initially wanted to lease this 

facility, went into the business of loading coal. 

To repeat for the purpose of clarity, Respondent is not 

paid to crush coal, to store it, to wash it, to dry it, or to 

size it. Respondent's employees are not represented by 

United Mine Workers of .America or any other union, and these 

164 
employees are esentially engaged in all the duties and 

responsibilities invoked by the Respondents construction 

business and it's commercial loading business. 

On the basis of the foregoing, I concude that the crushing of coal, as well as the storage of coal, on Respondent's 

premises are clearly incidental to its only function of loading this coal on barges. If Respondent is engaged in the 

crushing of this coal and using its loading business as a 

guise to mask it's doing business as a coal preparation plant, 

it is certainly carrying this out with a great degree of 

success. I find no evidence whatsoever that this is the 

case. This is bolstered by the fact that at Respondent's 

facility during the movement of the coal from the stockpiles 

to its final unloading point on the barge, there are no 

screens or grates which would size the coal or remove the 

impurities. Such would also be necessary to "blend" coal for 

special purposes. 

The statutory definition of coal or other mine obtained 

in section 802(h)(l) of the Act contains three concepts. The 

first concept provides that a coal mine is an "area of land 

from which minerals are extracted in non-liquid form." The 

second concept provides for the inclusion of "Private ways 

and roads pertinent to such area." (This) refers back to the 

first definition which specifies that it's a given area of 

land from which minerals are extracted. The third concept 

refers to "lands, excavations, underground passage ways, 

shafts, slopes, tunnels and workings, structures, facilities, 

equipment, etc., on the suface or underground, used in either 

the work of extracting such minerals from their natural 

deposits used in either "the milling of such minerals or the 

work of preparing coal or other minerals, and includes custom 

coal preparation facilities." As indicated by MSHA's counsel, 

the question narrows to whether or not this Respondent is 

engaged in the work of preparing coal. The definition contained in section 802(h)(2) of the Act-which is confined to 

the purposes of titles II, III, and IV of the Act-is similar 

to that contained in the third concept of section 802(h)(l). 

After studying the same I conclude that again the same question arises, that is, whether or not the impact which Respondent's dock facility places upon the coal which is delivered 

there constitutes the work of preparing the coal so extracted. 

Section 802(i) defines the work of preparing the coal as, 

"The breaking, crushing, sizing, cleaning, washing, drying, 

mixing, storage, and loading of bitumonous coal, lignite, or 

anthracite and such other work of preparing such coal as is 

usually done by the operator of the coal mine." 

165 
First off, to state the obvious, it is clear that Respondent is not engaged in the extraction of coal, either undergrund or by strip mining, nor is its business purpose to 

prepare coal or to perform any of the functions which would 

be involved in preparing coal such as washing it, extracting 

the impurities, crushing it, sizing it, blending it, and the 

like. A contention and point made by MSHA is that the coal 

industry is "pervasively regulated." I do not construe this 

phrase to mean that all businesses which store or crush coal 

come within the purview of the Mine Safety and Health Act. 

For example, does the business which makes coal figurines or 

art objects become a coal mine because it stores coal or 

changes the size of the coal? Does a factory or other business 

which uses coal as a fuel, and which performs various physical 

functions on the coal, such as washing the coal, breaking the 

coal up, sizing the coal, and the like, become a coal mine? 

I do not think so. In order to accept the position of MSHA 

in this case and conclude that the commercial dock facility 

of the Respondent is a coal mine, the basis would have to be 

acceptable that the physical functions performed on the coal 

such as crushing, storage, loading, and the like, (alone) 

establish a business entity as a coal mine. I find that the 

reading of the statutory definition by MSHA in this case is 

hyper-technical. It represents a colillllon fallacy in reasoning. 

To give an illustration, one may say a housecat is a four 

legged animal with two eyes and a tail, and an elephant is a 

four legged animal with two eyes and a tail; (that) some cats 

are gray, and some elephants are gray; and that accordingly, 

cats are elephants. * * * The fact that some person or 

business entity loads coal and stores coal and crushes coal 

and the fact that a coal mine may do the same thing, does not 

automatically make that person or business a coal mine. I 

have considered the excellent brief of MSHA in support of 

its motion for partial summary judgment in this matter 

wherein are cited numerous cases. Most of the cases cited, 

however, involved mine operators actually engaged in the 

removal of the coal from its place in the ground. 

I find the storage and crushing of coal by Respondent is 

purely incidental to it's engagement in an enterprise entirely 

unrelated to coal mining, and that Respondent does not come 

within the definition of a coal mine as that term is defined 

in the Act. Respondent's operation is to be distinguished 

from the situation where a coal mine operator actually engaged 

in extraction, milling or preparing coal as an integral part 

of its operation on the same premises (or on contiguous land) 

engages in the storage and crushing of coal. This finding, of 

course, does not leave the Respondent without safety and 

health obligations since the decision only relates to the jurisdiction of OSHA and MSHA. * * * 

166 
As counsel for Respondent has pointed out, and I believe 

rightfully, the question is where the line should be drawn. 

There appear to be three physical phases which must be considered. ·The first being the actual mining or extracting of 

the.mineral from the ground; the second being the shipment of 

the coal from the premises where it is mined or to the place 

where it is consumed, and, third, the final destination or the 

point of consumption by the users of the products. In this 

case there is no business ownership, contractual relationship 

or any other connection between this commercial dock enterprise and the first phase, that is, the extracting of the 

mineral from the ground or the milling phase. I believe the 

line should be drawn at that point. I thus find that Respondent is not covered by the Federal Mine Safety and Health Act 

of 1977, since it is not a coal mine. I therefore order that 

all the citations contained in the nine dockets involved 

herein, there being 16 such citations or orders, be vacated. 

There being no merit to MSHA's petition, these nine proceedings are dismissed. 

The Government's position and the Respondent's position 

wer~ very well presented by both counsel who did, I believe 

an above-par job of representing their clients in these proceedings. This case ultimately will become an important case 

for the Commission to decide with respect to jurisdiction. 

ORDER 

The 16 citations contained in the nine dockets involved herein are 

VACATED. 

Michael A. Lasher, Jr., Judge 

Distribution: 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1240 E. 9th St., Rm. 881, Cleveland, OH 44199 (Certified 

Mail) 

William H. Jones, Jr., Esq., 1416 Winchester Avenue, Ashland, KY 

41101 (Certified Mail) 

167 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1 2 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

CALLANAN INDUSTRIES, INC., 

Respondent 

Docket No. YORK 79-99-M 

A.C. No. 30-00013-05003 

South Bethlehem Quarry and Mill 

DECISION 

Appearances: 

Before: 

William G. Staton, Esq., Office of the Solicitor, 

U~S. Department of Labor, for Petitioner; 

Harry R. Hayes, Esq., Albany, New York, for 

Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of civil penalty 

under section llO(a) of the Federal Mine Safety and Health Act of 1977 

(30 U.S.C. § 801 et seq., the "Act"), alleging four violations of mandatory standards. The general issues are whether Callanan Industries, Inc. 

(Callanan), has violated the regulations as alleged in the petition filed 

herein, and, if so, the appropriate civil penalty to be assessed for the 

violations. 

I. Contested Citations 

Citation No. 204924 charges a violation of the mandatory safety standard 

at 30 C.F.R. § 56.5-50, specifically alleging that the employee operating the 

Ingersoll type CM-2 air track drill, was exposed to 660 percent of the permissible level of noise. According to the charges, personai hearing protection (ear muffs) was being worn but feasible engineering or administrative 

controls were not implemented to eliminate the need for such protection. The 

citation was issued on September 18, 1978, and the operator was given until 

October 13, 1978, to abate the condition cited. On June 8, 1979, a section 

104(b) withdrawal order */ was issued req~iring that the cited drill be withdrawn from service because "no apparent effort was made by the operator to 

implement feasible engineering or administrative controls to protect the 

employeeu while operating the drill. The drill was thereafter withdrawn from 

*I Withdrawal orders are issued pursuant to section 104(b) of the Act only 

after a violation has been cited under section 104(a) and has not thereafter 

been timely abated. 

168 
service. The validity of this withdrawal order is not in itself at issue in 

this civil penalty proceeding. Insofar as the order concerned a failure to 

abate the cited violation, however, it may be relevant evidence under section llO(i) of the Act in determining the amount of any penalty. 

There is no dispute that the cited drill emanated noise levels above 

those permitted by the cited regulation, and indeed, that the drill emanated 

noise at 660 percent of the exposure permitted by that regulation. Callanan's 

principle defense rests upon subsection (b) of the cited regulation which provides in part as follows: "When employees' exposure exceeds that listed***, 

feasible administrative or engineering controls shall be utilized. If such 

controls fail to reduce exposure to within permissible levels, personal protection equipment shall be provided and used to reduce sound levels to within 

the levels of the table." MSHA contends that feasible engineering and admini~trative controls existed which the operator failed to implement. Callanan 

maintains on the other hand that the proposed engineering controls are not 

feasible, emphasizing that such controls are not economically viable under 

the circumstances. 

In determining the feasibility of the proposed engineering controls, MSHA 

concedes that bQth technological and economic considerations are relevant. The 

term 11 feasible 1

' as used in a similar noise standard promulgated in regulations 

under the Occupational Safety and Health Act (29 C.F.R. § 1910.95(b)(l)) has 

been judicially construed to include economic feasibility. RMI Company v. 

Secretary of Labor, et al., 594 F.2d 566 (6th Cir. 1979); Turner Company v. 

Secretary of Labor,, 561 F. 2d 82 (7th Cir. 1977). In determining such 

feasibility, the court in RMI approved of the cost-benefit analysis employed 

by the Occupational Safety and Health Review Commission (OSHRC) in the case 

of Continental Can Company, 1976-1977 CCH OSHD , 21,009, 4 BNA OSHC 1541 

(1976). The OSHRC stated therein: 

[T]hat the standard should be interpreted to require those 

engineering and administrative controls which are economically as well as technically feasible. Controls may be 

economically feasible even though they are expensive and 

increase production costs. But they will not be required 

without regard to the costs which must be incurred and the 

benefits they will achieve. In determining whether controls 

are economically feasible, all the relevant cost and benefit 

factors must be weighed. [Citations omitted.] 

In setting forth a general test to be followed in determining economic 

feasibility, the court in RMI stated as follows: 

The benefits to employees should weigh heavier on the 

scale than the cost to employers. Controls will not necessarily be economically infeasible merely because they are 

expensive. But neither will controls necessarily be economically feasible merely because the employer can easily (or 

otherwise) afford them. In order to justify the expenditure, 

169 
there must be a reasonable assurance that there will be an 

appreciable and corresponding improvement in working conditions. The determination of how the cost benefit balance 

tips in any given case must necessarily be made on an ad hoc 

basis. We do not today prescribe any rigid formula for conducting such analysis. We only insist that the Secretary, 

and the OSHRC on review, weigh the costs of compliance 

against the benefits expected to be achieved thereby in 

order to determine whether the proposed remedy is economically feasible. 

RMI, supra at pages 572-573. I find this test to be relevant and reasonable 

and in the absence of precedent from the Mine Safety and Health Review Commission I find it appropriate to adopt to the facts of this case. 

The court in RMI, again citing OSHRC decisions on point, further concluded that the Secretary has the burden of proving both the technologic 

and economic feasibility of the proposed controls in showing that a violation of the noise standard has occurred. RMI, supra at p. 574. See also 

Administrative Procedure Act, section 7(d)-:-S U.S.C. § 566(d), 

Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978). I find similarly that 

MSHA has that burden here. MSHA in this case did indeed go forward with its 

evidence in this regard in its case-in-chief. 

The precise question before me then is whether MSHA has met its burden 

of proving the feasibility of the controls proposed in this case. I find t~at 

it has not. I am not satisfied, first of all, with MSHA's cost estimate for 

the proposed engineering controls. While superficially the estimate of 

$2,672.78 does not appear to be unreasonable or unacceptable, upon closer 

examination I find that that estimate is too imprecise to allow a proper 

economic analysis. The estimate did not include the cost of a muffler, 

certain labor costs and the cost of transporting the sub drill between 

upstate New York and Joplin, Missouri, where the proposed retrofitting was 

to be done. Without more accurate figures, a true cost-benefit analysis cannot 

be made. 

In any event, regardless of the accuracy of MSHA's cost estimates, I do 

not find on the facts of this case any reasonable assurance that there would 

be an appreciable and corresponding improvement in working conditions as a 

result of the proposed controls. RMI, supra, pages 572-573. While the manufacturer of the subject drill, the Ingersoll-Rand Equipment Corporation, 

indeed concluded that it could not be muffled at all, even MSHA's expert conceded that he did not know what specific degree of noise reduction could be 

achieved from his proposed controls and could only speculate that a 5-decibel 

improvement might be expected based on MSHA's experience with muffling other 

types of drills. He further conceded that Callanan's drill would not, even 

after the proposed alterations, meet permissible noise levels but that Callanan 

would still be required to implement additional administrative controls the 

feasibility of which I also find suspect. The expert based his conclusions on 

170 
the assumption that the ~rill operator would not even occasionally be required 

to work near the drill--an assumption that is not supported by the credible 

evidence. Thus, even after the suggested engineering controls would have been 

implemented at substantial cost, Callanan's employees would nevertheless still 

have no doubt been required to wear personal hearing protection while operating 

the drill. Thus the benefits of the proposed controls, if indeed there be 

any, remain highly speculative. There is clearly no reasonable assurance that 

the thousands of dollars MSHA would have Callanan spend for the proposed controls would realistically produce any corresponding improvement in working 

conditions. Under the circumstances, I find that MSHA has failed in its burden 

of proving the feasibility of the proposed controls. 

Inasmuch as personal protection equipment (earmuffs) was admittedly being 

utilized by the exposed employee in this case and since the uncontradicted 

evidence from the tests performed by Doctor Iandoli, an audiologist from the 

Albany Medical Center, demonstrates that the sound levels within the employee's 

muffs would under ordinary operating conditions be within that set forth in 

the relevant tables, I conclude that there has been no violation of the standard. 

Citation No. 204924 is therefore vacated. 

Citation No. 205343 charges one violation of the standard at 30 C.F.R. 

§ 56.9-2. That standard requires that equipment defects affecting safety be 

corrected before the equipment is used. Here it was charged that the automatic reverse signal alarm on the company's No. 2 haul truck was not operating. Callanan concedes that the backup alarm was not functioning as 

alleged but claims that the truck driver found the backup alarm to have 

been working properly before the truck was used that morning and, therefore, 

argues that there was no violation. Under this construction of the standard, 

if defects affecting safety are discovered after the equipment is being used 

then there is no violation. I reject such a strained and restrictive construction of the standard. It is clearly contemplated by that standard that 

defects affecting safety which occur during the course of equipment operation 

must also be corrected before the equipment is used any further. 

I find that Callanan was only slightly negligent, however, in failing 

to detect the faulty alann here. Truck drivers had been instructed to check 

the functioning of the alann at the beginning of each shift and at lunchtime 

and were paid a bonus to do so. The alarm cited in this case had been functioning at the beginning of the shift that morning. No one seems to know 

when it ceased to function and it could have stopped only moments before 

detection by the inspector. Callanan immediately took the truck out of 

service and paid an employee overtime to correct the condition. I find from 

the credible evidence that there was only minimal employee exposure to the 

anticipated hazard but injuries from a truck backing into an employee could 

of course be fatal. 

Citation No. 205347 charges one violation of the standard at 30 C.F.R. 

§ 56.14-35. That standard prohibits the lubrication of certain machinery 

while it is in motion unless it is equipped with extended fittings. It is here 

171 
alleged that the grease fitting on the east side of the No. 2 conveyor tail 

pulley was not extended so that the employee could safely grease the pulley 

bearing while the pulley was moving. There is no dispute that an employee 

did in fact grease the moving tail pulley at that location at least once a 

day but there is some dispute over the hazard presented by such a practice. 

Based on the photographs submitted by the operator, and the credible testimony of MSHA inspector Rezniak, it is clear to me that the cited practice 

constituted a hazard and the violation was therefore proven as charged. The 

credible evidence shows that the employee greasing the fitting would be 

required to extend his arms over the existing guard and in close proximity 

to the moving belt and tail pulley. It is my conclusion that the grease gun 

could in fact become engaged in the pulley possibly dragging the employee into 

the pulley or that the grease gun could be thrown back tv the moving pulley 

into the arms or face of the employee. Under the circumstances, arm and head 

~njuries would be likely. I find also that the hazard should have been obvious 

to the operator, particularly since the grease fitting on the opposite side 

of the pulley was extended as required by the cit~d regulation. The operator 

stopped the belt immediately after it was cited and replaced the fitting with 

an extended one. 

II. Uncontested Citation 

Citation No. 205346 charged one violation of the standard at 30 C.F.R. 

§ 56.12-25. That standard requires that all metal-enclosing or encasing electrical circuits be grounded or provided with equivalent protection. The parties proposed to settle this citation with a reduction in penalty to $50. As 

reasons for the settlement, MSHA proferred that the cited ungrounded equipment 

was being used in a dry area, making it quite unlikely that the anticipated 

shock hazard would occur. It was further proferred that even should a shock 

occur it would be minimal, not causing serious injuries. As to all citations 

in this case, in addition to the negligence and gravity involved, I have considered evidence as to the size of the operator, the history of its violations 

and the demonstrated good faith of the operator in attempting to achieve rapid 

compliance. Under the circumstances, I find that the agreed penalty of $50 is 

acceptable. 

ORDER 

Citation No. 204924 is VACATED. The following penalties totaling· $475 

are to be paid within 30 days of the date of this decision. 

Citation No. 

205343 

205346 

205347 

172 

Penal 
Distribution: 

William G. Staton, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1515 Broadway, Room 3555, New York, NY 10036 (Certified Mail) 

Harry R. Hayes, Esq., Hayes & Lapitina, 111 Washington Avenue, Albany, 

NY 12210 (Certified Mail) 

173 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

'JAN 1 3 1981 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 79-219-M 

Petitioner :i A.O. No. 33-01400-05001-R 

v. 

Mecco, Inc., Pit and Mill 

MECCO, INC., 

Respondent 

DECISION AND ORDER APPROVING SETTLEMENT 

Petitioner filed a motion to approve settlement in this matter for $200. 

The amount originally proposed was $1,000. For the reasons set forth below, 

the recommended settlement is approved. 

Citation No. 362018 was issued to Respondent on April 18, 1979, for an 

alleged violation of Section 103(a) of the Federal Mine Safety and Health Act 

of 1977 (the Act). That provision, inter alia gives authorized representatives of the Secretary of Labor "a right entry to, upon, or through any 

coal or other mine" for the purpose of "making any inspection or investigation under this Act * * *·" MSHA alleged that on April 18 and 20, 1979, an 

authorized representative of the Secretary was denied entry to Respondent's 

premises. 

The settlement motion filed by Petitioner and supporting affidavit filed 

by Respondent did not deny that the violation occurred. However, these documents asserted that the proposed settlement is warranted for several reasons. 

The parties detailed a long history of jurisdictional confusion at Respondent 1 s facility between MSHA and the Occupational Safety and Health Administration (OSHA). Respondent claimed that both agencies claimed jurisdiction 

over its facility. Respondent believed that MSHA's jurisdiction was "limited 

to underground and open face pit type surface mines." Additionally, in the 

event MSHA had jurisdiction over facilities such as Respondent's, the company 

felt that the Supreme Court's decision in Marshall v. Barlow's Inc., 436 U.S. 

307 (1978), required MSHA to obtain a search warrant before conducting inspections of mine property. 

On August 3, 1979, Petitioner filed an injunctive action in the 

United States District Court for the Southern District of Ohio in an attempt 

to restrain Respondent from interfering with MSHA inspections at its site. 

After a series of conferences between the parties, a consent order was 

174 
approved by the Court in which Respondent agreed to permit MSHA inspections 

"upon and through those portions of its operation subject to MSHA jurisdiction," and not "interfere with, hinder or delay" such inspections. Respondent paid approximately $2,000 in attorney's fees in connection with this 

court case. 

As this civil penalty case proceeded, Respondent repeatedly stated that 

it was under the impression the consent order entered in District Court had 

resolved this matter. In various conference calls between Respondent's 

president, MSHA's counsel, and the undersigned administrative law judge, 

Respondent was apprised that this is a separate proceeding from the District 

Court litigation. At this point, the parties proposed the $200 settlement. 

The settlement motion and affidavit detailed the history of this case 

and Respondent's relationship with MSHA. The motion reviewed the various 

court decisions on the warrantless inspection issue, and highlighted the confusion and split of authority which faced Respondent when the subject inspections were attempted. Additionally, the motion discussed the jurisdictional 

disputes between MSHA and OSHA which had not been resolved as of the date of 

the subject inspection attempts. Finally, the motion discussed the six criteria in Section llO(i) of the Act. It is noted that Respondent is a small 

operator with no prior history of violating either MSHA regulations or Section 103(a) of the Act. The gravity of the offense is said to be moderate, 

and payment of the recommended settlement will not have any effect on the 

company's ability to remain in business. The parties further stated that 

Respondent's negligence was slight in view of the conflicting case law on the 

warrantless inspection issue and the jurisdictional dispute between MSHA and 

OSHA which existed at the time in question. Finally, the motion stated that 

the consent judgment in the District Court proceeding demonstrated Respondent's good faith in this matter. 

In light of these factors, as well as the fact that Respondent has 

already paid almost $2,000 in attorney's fees in connection with the injunction action, I believe the proposed settlement should be approved. 

ORDER 

Respondent is ORDERED to pay $200 in penalties within 30 days of the date 

of this Order. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge 

Marcella Thompson, Attorney, Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Building, 1240 East Ninth Street, Cleveland, 

OH 44199 (Certified Mail) 

David T. Morgan, President, Mecca, Inc., 211 No. University Boulevard, 

Middletown, OH 45042 (Certified Mail) 

175 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SHARON A. PACE, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1 3 1981 

Complainant 

Complaint of Discrimination, 

Discharge, or Interference 

Docket No. SE 80-113-D 

CONSOLIDATION COAL COMPANY, 

Respondent Matthews Mine 

DECISION 

Appearances: Dorothy B. Stulberg, Esq., Mostoller & Stulberg, Oak Ridge, 

Tennessee, for Complainant; 

Louis R. Hagood, Esq., Arnett, Draper & Hagood, Knoxville, 

Tennessee, for Respondent. 

Before: Judge Melick 

This case is before me upon the complaint by Sharon A. Pace pursuant 

to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq., the "Act," alleging that she was unlawfully discharged by Consolidation Coal Company (Consolidation). A hearing was held 

on November 13, 1980, in Knoxville, Tennessee, at which both parties, represented by counsel, 'appeared and presented evidence. 

The issue in this case is whether Ms. Pace was unlawfully discharged by 

Consolidation in violation of section 105(c)(l) of the Act because of her 

alleged safety-related activities at Consolidation's Matthews Mine. Section 

105(c)(l) reads in part as follows: 

No person shall discharge or in any other manner discriminate against * * * or otherwise interfere with the 

exercise of the statutory rights of any miner * * * because 

such miner * * * has filed or made a complaint under or 

relating to this Act, including a complaint notifying the 

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

or safety or health violation * * * or because such miner 

* * * is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 

or because such miner * * * 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 * * * on behalf of 

himself or others of any statutory right afforded by this 

Act. 

176 
If the complainant proves by a preponderance of the evidence that she was 

engaged in a protected activity and that her discharge by the operator was 

motivated in any part by the protected activity then she has established a 

prima facie case under this section of the Act. Secretary of Labor on behalf 

of David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (October 14, 

1980). 

It is undisputed that Ms. Pace, a general laborer at the Matthews Mine 

since July 31, 1978, was discharged from her job on March 28, 1980. She 

alleges in her pleadings that the discharge was motivated by the fact that 

she had been interviewed by an MSHA inspector at her home on February 22, 

1980, in the course of his investigation of an alleged safety violation at 

the Matthews Mine. For purposes of this decision, I need not determine 

whether such activity is protected under section lOS(c)(l) since I do not 

find from the credible evidence of record that Ms. Pace's discharge was motivated in any part by that alleged activity. Indeed, Ms. Pace conceded in her 

testimony that she had no evidence, and in essence could not therefore prove, 

that any company official had any knowledge at the time of her discharge, 

that she had been so interviewed by the inspector. 1/ Ms. Pace appears to 

suggest that although she has no evidence that any company official was aware 

at the time of her discharge of the February 22 interview, that administrative or official notice should be taken to establish that fact and presumably 

to also establish that her discharge was motivat.ed by that fact. Not even 

the concept of official notice would, however, permit the creation of facts 

which have not been shown to have any existence. McCormick's Law of Evidence, 

Second Edition, 1972, § 357. 

The only affirmative evidence on point comes from the testimony of the 

Consolidation officials who testified at hearing. The testimony of mine superintendent Ron Smith, the person who made the decision to discharge Ms. Pace, 

is particularly significant. That testimony, which I find to be completely 

credible, confirms that the official responsible for discharging Ms. Pace did 

so without knowledge of the alleged confidential interview Ms. Pace had with 

the MSHA inspector on February 22, 1980. It follows that Complainant's discharge could not have been motivated in any part by that alleged protected 

activity. Complainant has thus failed in her burden of proof. Pasula, supra. 

I observe that, in any event, Complainant's discharge by Superintendent 

Smith on March 28, 1980, was the direct result of her committ an admittedly unprotected and dischargeable offense, 2:_._c::_., sleeping on the job. As 

to this event, I accept the credible testimony of Mack Jones, a foreman for 

Consolidation for over 10 years. Jones testified that around 1:30 or 2 in 

the morning of March 28, as he was walking along the belt line, he saw a 

1/ Ms. Pace observed at hearing that she was also interviewed by the inspector on January 15, 1980, inside the mine, but conceded that all the other 

miners on her section were similarly interviewed and she admits that only 

her confidential interview with the inspector on February 22, 1980, sets her 

apart from the others. 

177 
miner's light shining at the roof. As he moved closer, he saw someone leaning back against the rib with her eyes closed. He recognized that person as 

Complainant Pace. He watched her for a short time, concluded that she was 

asleep, then shined his light in her eyes a few times. She "jerked her head" 

and woke up. She admitted to Jones that she had been sleeping. Jones thereupon called outside to the mine office and set up a meeting with Superintendent Smith. According to Jones, Pace admitted several times at that meeting 

that indeed she had been sleeping. James Keller, Supervisor of Employee 

Relations, as well as Snith corroborated that Pace had indeed admitted sleeping on the job. It was at this time that Smith discharged Ms. Pace. 

At hearing in this case, as at her arbitration hearing, Pace denied that 

she had been sleeping and denied admitting at the meeting in Smith's office 

that she had been asleep. In as the credibility of Complainant's testimony, the analysis given of her statements at the arbitration proceeding by 

arbitrator Thomas Phelan is worthy of consideration. See Pasula, supra, 

regarding the weight to be given such a determination. Phelan's analysis was 

as follows: 

As to the proof of the charge that the Grievant 

[Ms. Pace] was asleep, the case is a difficult one because 

there were only two people present when the offense was 

alleged to have been committed. One of them was the foreman 

and the other was the Grievant. That type of situation makes 

the credibility of the witnesses all important and requires 

that all of the surrounding circumstances be carefully examined to determine whether they lend support to either party's 

position. In the present case, the testimony relevant to the 

surrounding events on March 28 support the company's position. 

There was no question that there was a rule against sleeping 

in the mine, that the Grievant was aware of the rule and 

aware that she would be taken out of the mine if she was 

caught sleeping. Knowing that, she still put herself in a 

position where she could be assumed to be asleep 

by stretching out with her head back and not moving at all 

even when she said that she knew she was being watched by 

someone. Having assumed the position of someone asleep, it 

was' entirely reasonable for the foreman to conclude that she 

was asleep. Then, when the foreman asked her, or even told 

her, of his conclusion, she did not deny it but just followed 

him out of the mine. Even if the Grievant had not admitted 

to being asleep at that point, the lack of a denial of the 

charge under the circumstances takes on significance. 

When the Grievant and foreman met with the superintendent 

there was a discussion of what happened in the mine and the 

testimony about that discussion is somewhat conflicting as 

would be expected. The company witnesses testified that the 

Grievant admitted twice that she had been asleep but the 

Grievant's testimony was to the effect that she denied having 

178 
made such admissions. However, at the 24-48 hour meeting, 

she concededly did not remember what she had said at the previous meeting and that concession weakens her testimony considerably because it makes it appear that her position was 

changing after she knew that the company was going to go forward with the discharge. Nobody comes to an arbitration 

hearing with a greater presumption of credibility and all of 

the testimony has to be weighed in light of the surrounding 

circumstances. Here, the circumstances support the testimony 

of the company's witnesses and their testimony was entirely 

believable. I find as a fact, therefore, that the Grievant 

actually was asleep in the mine at least for a short period 

of time. 

After making my own independent evaluation of the evidence I find that 

I am in complete agreement with Arbitrator Phelan's considered analysis of 

credibility. I conclude therefore that indeed Ms. Pace was sleeping on the 

job. This offense admittedly being a dischargeable one independent of any 

protected activity, it is clear for this additional re~on that the complaint 

herein must fail. The complaint is accordingly DISMIS 1· ~.\ • I 

V\11 . ~'-\/ \! Ga~y Mel\ 

Aakinistftitive Law 

Distribution: \ . ll' 

Dorothy B. Stulberg, Esq., Mostoller & St1 erg, 

Illinois Avenue, Oakridge, TN 37830 (Certified 

Road at 

Louis R. Hagood, Esq., Arnett, Draper & Hagood, Suite 2300, United 

American Plaza, Knoxville, TN 37929 (Certified 'Mail) 

179 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

JAN 1 3 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

TEXAS LIME COMPANY, DIVISION OF 

RANGAIRE CORPORATION, 

Respondent. 

) CIVIL PENALTY PROCEEDING 

) 

) 

) DOCKET NO. CENT 79-392-M 

) 

) 

) A/O NO. 41-00072-05004 F 

) 

) 

) MINE: Texas Lime Plant No. 2 

) 

) 

) 

---------------~----~-

DECISION 

APPEARANCES: 

Eloise Vellucci, Esq. 

Office of the Solicitor 

United States Department of Labor 

555 Griffin Square Building, Suite 501 

Dallas, Texas 75202, 

For the Petitioner, 

William R. Anderson, Jr., Esq. 

Anderson & Anderson 

P. 0. Box 486 

Cleburne, Texas 76031, 

.For the Respondent 

BEFORE: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

The Petitioner filed a complaint proposing that a penalty be assessed 

against the Respondent for its alleged violation of 30 CFR 56.14-1.1 The 

cited regulation was issued under authority of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1978). Attached and incorporated 

into the complaint was a copy of the-Citation dated February 19, 1979, in which 

the following was written: 

"There was a 72-inch sect ion of steel cover missing from 

over the feed conveyor head pulley for the No. 5 storage bin, 

and an employee was fatally injured when he was caught in the 

conveyor." 

-------------·--· .... __ 

l I Mandatory. Gears; sprockets; chains; drive, head, tail, and take-up 

pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar 

exposed moving machine parts which may be contacted by persons, and which 

may cause injury to persons, shall be guarded. 

180 
In its answer, the Respondent denies that there was a violation of the 

Act as alleged. It further affirmatively alleges, inter alia that the 

deceased employee, on his own, and in violation of spec tructions, 

climbed to the area of the conveyor during inclement weather consisting of 

ice and sleet, and may have removed the 72-inch sect ion of steel cover from 

over the conveyor belt and head pulley in order to get to the area where 

the conveyor belt was blocked. 

FINDINGS OF FACT 

1. In the course of the operation of its business, Respondent's 

employees operate a vertical bucket elevator which carries crushed 

limestone used for the purpose of making quicklime and hydrate lime. The 

bucket travels vertically for a distance of approximately 60 feet, to a 

point where the material drops onto a horizontal conveyor belt. The 

conveyor belt then carries the material for a distance, to where it 

drops from the end of the conveyor belt into a large surge bin or tank. 

2. Access to the top of the surge bin, where the conveyor belt 

delivers the rock, is by means of an attached metal ladder which extends 

down to ground level. 

3. At the time of the accident, the entire length of the horizontal 

conveyor belt was covered by a rounded metal cover attached to the metal 

framework which supports the conveyor belt itself, except for the last 

section, which was 72 inches in length, extending from the head pulley back 

to the last metal cover over the conveyor belt. 

4. On the night of the accident, February 16, 1979, the decedent told 

two fellow workers that he was going up to the surge bfn in order to throw 

some dry dust on the head pulley because the conveyor belt was slipping 

during a rain and sleet storm. 

5. The decedent's body was later discovered on its back on top of the 

conveyor belt with the left arm caught between the belt and the head 

pulley. The decedent's skull was fractured when it came into contact with 

the rounded metal rim located over the head pulley. The metal rim was a 

support for the 72-inch section of the conveyor belt cover, which was not 

in place at the time of the accident. 

6. There were no eye witnesses to the accident. 

7. After the accident, the metal cover or guard was found tied to a 

corner post on the work platform surrounding the head pulley and conveyor 

belt area where the accident occurred. 

8. If the 72-inch section of the rounded conveyor belt cover or gμard 

had been in place, decedent could not have been pulled in and on top of the 

belt the way he was, even if his arm had been caught in the belt. 

181 
9. The Respondent promptly abated the citation the day it was issued, 

February 19, 1979, by replacing the cover and welding it on over the 

conveyor belt. An extra open gri 11 grid was installed across the bottom of 

the welded cover so that no one could reach into the conveyor belt. 

10. The Respondent has a history of 14 assessed violations in the 

twenty-four month period preceding February 1979. 

11. The Respondent employs approximately 100 persons, who 

collectively work approximately 814,472 man hours per year. 

12. A monetary penalty would not impair Respondent's ability to 

continue in business. 

ISSUES 

Three issues are presented: 

1. Was the head pulley a moving part that might be contacted by 

persons and might cause injury? 

2. If .the head pulley should have been guarded and if the deceased 

employee himself removed the metal cover causing the head pulley to be 

unguarded just prior to the fatal accident, is the Respondent responsible 

for a violation of the cited regulation? 

3. If the Respondent is found to have violated the regulation, what 

amount of penalty assessment should be ordered to be paid by the 

Respondent? 

DISCUSSION AND CONCLUSIONS 

The head pulley is specifically mentioned in the cited regulation. 

It must be guarded if, while in motion, it might be contacted by persons 

and might cause injury. Admitted into evidence were photos and a drawing 

of the location where the fatality occurred. They show a work platform 

surrounding the area where the employees could walk once the area was 

reached by means of climbing the vertical metal ladder attached to the 

surge bin tank from ground level. Since workers would be expected to be in 

the area on the plat form, it would be expected that they might come into 

contact with the head pulley and be injured thereby, unless the head pulley 

was guarded. Accordingly, I conclude that the head pulley should have been 

guarded. 

The evidence is undisputed that the guard or metal cover was not in 

place when the accident occurred. The evidence is inconclusive as to 

whether the metal cover was off or in place when the decedent reached the 

area of his subsequent death. The MSHA inspector testified that he assumed 

the metal cover was not in place over the head pulley and conveyor belt 

before the decedent climbed to the area, because if the cover had been in 

place, the head pulley would not have gotten "so wet" from the rain and 

sleet, and thus would not have been slipping. On the other hand, the 

Respondent's witness testified that even with the belt cover in place there 

had been problems in the past with the belt slipping during extreme weather 

182 
conditions, such as freezing rain. Therefore, I find the evidence inconclusive as to the point of whether the metal cover guard was or was not in 

place before the decedent climbed to the conveyor belt on February 16, 

1979. The decedent may have removed the cover himself in an attempt to get 

the conveyor belt to move properly. However, regardless of whether or not 

the guard was in place when the decedent arrived, it nevertheless was not 

in place when he died. Thus, the head pulley, for whatever reason, was 

not guarded in compliance with the cited regulation at the time of the 

decedent's death. The evidence also shows that it was very easy to remove 

this particular last 72-inch section of metal cover. As originally 

installed, the cover was bolted into position by four bolts, one on each 

corner. However, by the time of the accident, the cover was merely wired 

on and the bolts were no longer being used. Also, the decedent's 

supervisor admitted that he knew of the practice of employees in throwing 

dry dust or calcium on the pulleys to "get the belt going." 

The Respondent argues in its post hearing brief that the decedent went 

to the platform area on his own and against the specific instructions of 

the supervisor. The decedent's station of work was at ground level and his 

duties did not require him to go to the top of the tank or to the belt conveyor where it emptied into the tank. Thus, the Respondent argues that 

there was no violation of the cited regulation because the decedent's own 

misconduct or negligence was the proximate cause of the accident. Respondent's argument overlooks the fact that the Federal Mine Safety and Health 

Review Commission has held that an operator's liability is not conditioned 

upon fault. The operator is required to see that violations do not occur, 

and if violations do occur, he is held liable. Secretary of Labor, Mine 

Safety and Health Administration (MSHA) v. Eaton Sand and Gravel Company, 

(Docket No. PIKE 79-119 PM, June 25, 1980, Final Order August 4, 1980). 

It is undisputed in the evidence that the decedent climbed to the top 

of the surge tank on his own and without the approval of his superior. His 

supervisor testified at the hearing that he instructed the decedent not to 

climb to the surge tank because it was dangerous and the ladder was frozen 

over with ice. I find that Respondent's evidence supports its pleading 

which affirmatively alleged employee misconduct, and I find this evidence 

mitigating in regard to the penalty to be assessed. 

The citation should be affirmed. 

ORDER 

The citation alleged herein is AFFIRMED and the Respondent is ordered 

to pay a civil penalty of $2,500 within 30 days of the date of this 

Decision for the violation of 30 CFR 56.14-1, as alleged. 

183 
DISTRIBUTION: 

Eloise Velucci, Esq. 

Office of the Solicitor 

United States Department of Labor 

555 Griffin Square, Suite 501 

Dallas, Texas 75202 

William Anderson, Esq. 

Anderson & Anderson 

P 0 Box 486 

206 North Main Street 

Cleburne, Texas 76031 

184 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYUNE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

JAN 1,4 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADM:NISTRATION (MSHA), Docket No. LAKE 80-207 

Petitioner A.O. No. 33-01070-03066V 

v. 

Allison Mine 

YOUGHIOGHENY AND OHIO COAL COMPANY, 

Respondent 

DECISION 

Appearances: Linda Leasure, ., Office of the Solicitor, U.S. Department 

Before: 

of Labor, Cleveland, Ohio, for Petitioner; 

Robert C. Kota, Esq., Youghiogheny and Ohio Coal Company, 

St. Clairsville, Ohio, for Respondent. 

Judge Edwin S. Bernstein 

On November 19, 1980, I conducted a hearing pursuant to Section 105(d) 

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

et seq., and 29 C.F.R. § 2700.50 ~seq., and issued the following decision 

from the bench: 

My bench decision is as follows: On August 15, 1979, 

Gary R. Gaines, an authorized representative of the United 

States Secretary of Labor, issued Respondent Order of Withdrawal No. 825305, pursuant to Section 104(d)(l) of the 

Federal Mine Safety and Health Act of 1977. 

The order alleged a violation of the mandatory safety 

standard at 30 C.F.R. § 75.1100-3. The order read: 

The firefighting equipment was not maintained in a usable and operative condition along 

the No. 3 main haulage track of main east, 

between the Nos. 1 an~ 65 crosscuts, a distance 

of 4,000 feet. Only two water outlet valves were 

found to be in a usable and operative condition. 

Two outlet valves found were not functional. The 

rest of the outlet valves could not be found 

because they were completely covered with stone 

and coal, which had fallen from the roof and ribs. 

185 
The order referred to a condition in Respondent's Allison 

Mine in Beallsville, Ohio, on August 15, 1979. 

MSHA's Assessment Office recommended the assessment of 

a penalty of $1,000 for the alleged violation. Respondent 

challenged the validity of the order and assessment of penalty. At the hearing today, the parties stipulated, and I 

find the following: 

1. At the time that the order was issued, the Allison 

Mine constituted a coal mine, and its products entered 

and affected interstate commerce. 

2. From 1969 until and including the present time, 

Respondent owned and operated Allison Mine. 

3. Respondent and every miner employed in Allison Mine 

are subject to the provisions of the Federal Mine Safety and 

Health Act of 1977 (the Act). 

4. The Federal Mine Safety and Health Review Commission 

has jurisdiction over this proceeding. 

5. During calendar year 1979, Allison Mine produced 

527,843 tons of coal and overall, Respondent produced 

1,490,929 tons of coal. It is accurate to conclude that 

based upon this, Respondent is a medium-sized coal producer. 

The Secretary of Labor characterized Respondent as a mediumto-large producer, and Respondent characterized itself as a 

medium-to-small producer. I find that it is a medium-sized 

producer. 

6. On or about August 15, 1979, Respondent produced· 

300 or more tons of coal per shift. 

7. As indicated by Exhibit G-1, a computer printout 

during the two-year period from August 16, 1977, to and 

including August 15, 1979, Respondent paid for 741 violations of the Act. The parties stipulated, and I find, 

that this is a moderate history of violations of the Act 

and its regulations. 

8. The violation alleged in the order was abated in 

good faith. 

MSHA contends that at the time and place of issuance of 

the withdrawal order in qu~stion, Respondent violated the 

mandatory safety standard at 30 C.F.R. § 75.1100-3. That 

standard reads: "All firefighting equipment shall be maintained in a usable and operative condition. Chemical 

186 
extinguishers shall be examined every 6 months, and the 

date of the examination shall be written on a permit tag 

attached to the extinguisher." 

The alleged violation is specifically based upon a violation of the standard at 30 C.F.R. § 75.1100-2(c). Subparagraph (1) of that section reads: 

In mines producing 300 tons of coal or more 

per shift waterlines shall be installed parallel 

to all haulage tracks using mechanized equipment 

in the track or adjacent entry and shall extend 

to the loading point of each working section. 

Waterlines shall be equipped with outlet valves 

at intervals of not more than 500 feet, and 

500 feet of firehose with fittings suitable for 

connection with such waterlines shall be provided at strategic locations. Two portable 

water cars, readily available, may be used in 

lieu of waterlines prescribed under this 

paragraph. 

Mr. Gary R. Gaines, the MSHA inspector who issued the 

order, testified for Petitioner. Paul ilright, the Allison 

Mine's foreman, and John Scopel, Youghiogheny and Ohio 

Coal Company's safety and security manager, testified for 

Respondent. 

Inspector Gaines stated that on August 15, 1979, he 

inspected the No. 3 main haulage track of main east, 

between the No. 1 and No. 65 crosscuts at the Allison 

Mine. The distance between the No. 1 and No. 65 crosscuts is approximately 4,000 feet, and is intersected by 

65 crosscuts. 

He found only four outlet valves. Two of these valves 

were found to be in a usable and operational condition. 

The other two were not usable and operational. He could 

not find any other outlet valves. He concluded that these 

were buried by stone and coal that had fallen from the ribs. 

He testified that 30 C.F.R. § 75.1100-2(c) required outlet 

valves at intervals of not more than 500 feet, and that for 

this distance of approximately 4,000 feet, at least eight 

valves were required. He stated that he found no portable 

water cars in the area. 

He testified that the haulage tracks were used to haul 

supplies, men, and materials, but were not used to haul any 

coal. He issued the order of withdrawal at 11:05 a.m. At 

about 2:05 p.m., he modified the order to allow resumption 

187 
of activity, because one water car had been brought onto 

the scene. He terminated the order on August 22, 1979, 

because Respondent then had two portable water cars. 

During Mr. Gaines' testimony, the parties stipulated 

that there was a belt line parallel to the haulage tracks 

approximately 48 feet distant. Inspector Gaines stated that 

of the 65 crosscuts that intersected the length of the haulage track in question, only nine were passable. The others 

all were not passable because of coal and rock that had 

fallen from the roof and ribs and blocked passage through 

the crosscuts. 

On cross-examination, he acknowledged that there was 

a portable fire extinguisher on the jeep that he used, and 

there may have been a second portable fire extinguisher in 

a vehicle in the area. He stated that there was loose coal 

along the track, but the area had been rock dusted. 

He testified that the condition in question was 

especially serious because he found an excessive amount of 

air velocity along the track in question. He found between 

270 and 322.5 feet per minute of air velocity upon testing 

with an anemometer. He indicated that another safety standard, 30 C.F.R. § 75.327-1 prohibits velocity in excess of 

250 feet per minute, and that such excessive velocity could 

increase the spread of fire. He stated that among materials carried along the haulage track was hydraulic fluid in 

drums, some types of which are flammable. 

Mr. Wright testified that there were adequate water outlets along the belt line. He stated that he believed that 

35 crosscuts between the length of haulage track in question 

and the parallel length of belt line were open. However, on 

cross-examination, he admitted that some of these 35 crosscuts did not have bolted roof above them. He stated that 

there were two portable rock dusters and one foam machine 

in the area, and that all vehicles carried 10-pound fire 

extinguishers and some vehicles carried 15-pound 

extinguishers, and that a foam car, which was quite 

effective in fighting fire, could reach the No. 1 crosscut 

in about three to four minutes and could reach the No. 65 

crosscut in about eight to 10 minutes. He admitted that 

wood products and oil, which were carried along the haulage track, could ignite anG burn. 

He stated that the area had been well rock dusted. He 

stated that although at the time that the order was issued 

the air velocity was quite high as the inspector testified, 

Respondent was in the process of buying mine doors, which 

188 
would and subsequently did bring the air velocity down to 

acceptable limits. 

He further testified that in the event of a fire, air 

velocity could be short circuited by the installation of 

stops or check curtains. He testified that on August 15, 

1979, he saw no black areas on the track. This indicated 

that rock dusting was performed in a satisfactory manner. 

He stated that he had worked at the mine for four years 

and that although outlet valves had been installed along 

the length of the track in question, they were not maintained during the four years that he was there. 

John Scopel testified that he felt that subsection (c) 

of 30 C.F.R. § 75.1100-2 referred to coal haulage tracks, 

since the criteria of mines producing 300 tons or more were 

used. He stated that the more coal you haul on the track, 

the more you need firefighting equipment. He testified that 

the biggest hazard in igniting a fire is coal dust in suspension, combined with sparks of energized electrical equipment, such as trolley wires. On cross-examination, he 

conceded that the more coal you mine, the more supplies you 

transport to the face and the more traffic you have along a 

haulage track such as this. 

Counsel for Respondent contended that 30 C.F.R. 

§ 75.1100-2(c) applies only to haulage tracks used for 

hauling coal, and that since in the Allison Mine the 

tracks in question do not haul coal, Respondent need not 

comply with that section. He stressed that subsection (b) 

of the standard covered belt conveyors, and that a belt 

conveyor was used in this mine to transport coal. 

I disagree with this contention. I think the plain 

meaning of this language is that all haulage tracks using 

mechanized equipment in the track or adjacent entry are 

covered. The word "all" was used. I am also guided by the 

fact that this statute and the regulations enacted thereunder are remedial in nature, and remedial legislation 

should be liberally interpreted. 

The fact that subsection (b) sets forth standards with 

respect to belt conveyors does not detract from the fact 

that similar requirements are mandated with regard to haulage tracks. Had it been ir.tended that only coal haulage 

tracks were to have been covered by subsection (b), that 

could easily have been indicated in that subsection. The 

fact is that the word "all" was used. 

18B 
I therefore find that Respondent violated this subsection, and the standard at 30 C.F.R. § 75.1100-3. That 

latter section required that all firefighting equipment be 

maintained in a usable and operative condition, and, pursuant to the requirements of subsection (c) of 30 C.F.R. 

§ 75.1100-2, the equipment there was not maintained in a 

usable and operative condition. The parties have stipulated 

that the mine in question produced 300 tons or more of coal. 

I find that this haulage track in question, even though 

it hauled supplies, equipment, and men, and not coal, was 

covered. The testimony is not challenged that the distance 

in question, approximately 4,000 feet between the No. 1 and. 

No. 65 crosscuts, lacked outlet valves at intervals of not 

more than 500 feet. There was no dispute to the inspector's 

testimony that he found only two operative valves, and that 

at least eight should have been provided in operative 

condition. 

Furthermore, it is not disputed that there were no 

portable water cars in the area on August 15, 1979. Therefore, Respondent violated these provisions as alleged. I 

also find that the issuance of the order of withdrawal, 

pursuant to Section 104(d) (1) of the Act was appropriate. 

That section indicates that such an order should be issued 

if an authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or safety 

standard, and that such violation is caused by an unwarrantable failure of the operator to comply with such mandatory health or safety standards. 

I find that the operator should have known that it violated this standard. The haulage track had been provided· 

with outlets in the past, but these were rendered inoperable, and many of them were buried by coal and rock. This 

indicates that, at least in the past, the operator contemplated using such a sy~tem. Although Respondent's counsel 

has effectively raised a question of interpretation of the 

standard, and has done a good legal job of arguing that 

point. If the operator had a question as to the interpretation as to the application of that standard, it could 

have and should have requested an interpretation of that 

standard from MSHA. There is no evidence that the operator 

attempted to clarify that provision. 

Therefore, it should have known and it could have 

determined its responsibility, and its failure to do this 

constituted an unwarrantable failure as that term is defined 

in Section 104(d)(l) of the Act. 

190 
Having found a violation of the standard, the next 

question is the amount of penalty to be assessed. The criteria to be considered are contained in Section llO(i) of 

the Act. There are six criteria: (1) Size of the operator. 

I find that the operator is a medium-sized coal producer. 

(2) History of previous violations. I find that Respondent 

had a moderate history of previous violations. (3) Whether 

the operator was negligent. For the reasons that I have 

indicated, I find that the operator was negligent. (4) The 

effect on the operatorts ability to continue in business. 

Although the operator has contended that it has lost approximately five million dollars, or will lose this amount for 

the calendar year of 1980, the operator has offered no evidence to support the contention that the assessment of a 

penalty in the approximate amount recommended by the Assessment Office would affect its ability to continue in business. 

The burden of proof on this issue is on the operator. I 

therefore find that the assessment of such a penalty would 

not affect the operatorts ability to continue in business. 

(5) The demonstrated good faith in attempting to achieve 

rapid compliance after notification of the violation. In 

accordance with the parties' stipulation, I find that the 

operator did abate this violation in good faith. 

The sixth and last criterion has to do with gravity. 

With regard to gravity, the length of the track in question 

was 4,000 feet covering 65 crosscuts, a substantial length 

of track. The evidence is that there was loose coal about, 

that there was excessive velocity in the area, which would 

tend to blow coal dust about, and which could aggravate and 

increase the spread of a fire. In terms of gravity, the 

fact that this track was being used to haul men was quite 

serious, in that men trapped in a fire in this area could 

be killed or seriously injured. On the other hand, the area 

was well rock dusted. There was one and perhaps two portable 

fire extinguishers on vehicles in the area, and Respondent's 

evidence that there were two portable rock dusters in the 

area is not disputed. Additionally, a foam car could have 

reached the area in between three and 10 minutes. As to the 

evidence that there were waterlines along the belt conveyor, 

which was 48 feet parallel at its closest point, I do not 

find that this would have been too helpful, since most of 

the intersections between the belt conveyor and the haulage 

tracks were not readily accessible. 

I find quite credible the inspector's testimony, that only 

nine of those crosscu~s could be safely traveled. The operator's witness seemed less certain of the point, and I credit 

the inspectorts testimony. 

191 
Upon consideration of all of these criteria, I assess a 

penalty in the amount of $750 for this violation, and I uphold 

the withdrawal order that was issued. I will issue a written 

decision upon receipt of the transcript, accompanied with an 

order. Respondent will be required to pay the penalty assessed 

within 30 days of service of that written decision and order. 

I hereby affirm this bench decision. 

ORDER 

Respondent is ORDERED to pay $750 in penalties within 30 days of the 

receipt of a copy of this Order. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge 

Linda Leasure, Attorney, Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Building, 1240 East Ninth Street, Cleveland, 

OH 44199 (Certified Mail) 

Robert C. Kota, Attorney for The Youghiogheny and Ohio Coal Company, 

P.O. Box 1000, St. Clairsville, OH 43950 (Certified Mail) 

192 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

( 703) 756-6225 

JAN f 4 f98f 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 79-218 

Petitioner A.O. No. 33-03300-03005 I 

v. 

Ann Strip No. 1 Mine 

W. B. COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department 

of Labor, Cleveland, Ohio, for Petitioner; 

R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley, Whyte & 

Hardesty, Pittsburgh, Pennsylvania, for Respondent. 

Judge Edwin S. Bernstein 

On November 20, 1980, I conducted a hearing in Pittsburgh, Pennsylvania, 

to determine whether Respondent violated mandatory safety standards as alleged 

in two citations issued pursuant to Sectiori 104(a) of the Federal Mine Safety 

and Health Act of 1977 (the Act), and a withdrawal order issued pursuant to 

Section 107(a) of the Act. 

The parties stipulated, and I find: 

1. At the time that the citations and order were issued, Respondent 

operated, and continues to operate, the Ann Strip No. 1 Mine. This is a 

surface coal mine, the products of which enter and affect interstate 

commerce. 

2. Respondent and the Ann Strip No. 1 Mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. I have jurisdiction over this proceeding. 

4. During calendar year 1978, the mine produced 56,952 tons of coal and 

Respondent produced 118,476 tons of coal in all of its operations. Respondent 

has approximately 50 employees and is a small coal operator. 

193 
5. At all times pertinent to the issuance of the citations and order, 

Inspectors D. Ray Marker and Willard F. Poe were, and still are, authorized 

representatives of the Secretary of Labor. 

6. Copies of the citations and order are authentic and were properly 

served upon Respondent. However, Respondent did not stipulate as to the 

truthfulness or relevancy of any statements in these documents. 

7. The alleged violations were abated in a timely fashion. The operator demonstrated good faith in achieving abatement. 

8. Respondent has a good history of prior violations. 

9. The assessment of civil penalties will not adversely affect Respondent's ability to remain in business. 

Richard J. Neal, Willard F. Poe, Lester R. Ohler, and D. Ray Marker testified for Petitioner. Melvin Anderson, Joseph Zalesky, Richard Lynch, George 

Pincola, and Max Sovel! testified for Respondent. Alfred Haverfield testified 

for both parties. 

Richard Neal testified that as of February 16, 1979, he had been employed 

by Respondent for about ten months. He was hired as a blaster, but he also 

operated drills, bulldozers, and pan vehicles. A pan vehicle is a track 

vehicle with blades which is used to spread and collect topsoil. 

On the morning of February 16, 1979, Mr. Neal began work at 7 a.m. He 

had been operating a bulldozer for about 45 minutes when he broke a steering 

clutch and decided to switch vehicles. He did this without obtaining pennission or informing anyone at W. B. He began operating a Model 631B pan 

vehicle, also known as a scraper. A scraper is equipped with a bowl, or pan, 

which collects dirt. The weather was cold that day, and it was drizzling 

freezing rain. Mr. Neal testified that he moved four or five loads of dirt 

along a particular road. In order to get to this road, Mr. Neal had to drive 

down a hill into a valley, and then up another hill. He did not recall 

whether there were berms 1/ on the side of the road at the time. On his last 

trip down the road, he turned the wheel to the right in order to make a turn. 

The road was icy and the machine started sliding to the left. Mr. Neal stated 

that he gave the machine a little more throttle, and when it regained its 

traction, it "shot across the other side of the road,n hit an embankment, and 

flipped over. 

When asked about the adequacy of the machine's brakes, Mr. Neal stated 

that when he started operating the scraper that day, the brakes felt inadequate to him. He also stated that by dropping the scraper bowl in the back 

of the machine, it was possibl~ to stop the scraper without the brakes. He 

1/ As defined in 30 C.F.R. § 77.2(d), a "berm" is "a pile or mound of material capable of restraining a vehicle." 

194 
added, however, that he was unable to do this at the time of the accident 

because he was carrying the bowl in a high position in order to clear a bump 

in the road. This made it impossible to drop the bowl quickly. 

Mr. Neal admitted that he was not wearing a seatbelt at the time of 

the accident, but that the scraper was equipped with rollover protection. 

He also said that he was generally assigned work by his foreman, 

Alfred Haverfield. He stated that Mr. Haverfield conducted safety meetings 

but Mr. Neal did not recall being instructed to wear a seatbelt. He did 

receive a safety booklet discussing the machine's operation, but he never 

read it. 

On cross-examination, Mr. Neal testified that before February 16, 1979, 

he had operated the pan scraper for a.couple of hours in November or December, 

1978. He also operated it the previous July on a reclamation project. He 

said he had between 120 and 130 hours of experience operating a scraper for 

Respondent. Prior to coming to W. B., he had no scraper experience. At 

W. B., he spent most of his time operating a drill. When asked what he did 

with the safety manual he received, he said he probably threw it in a drawer 

at home. 

Mr. Neal explained that he did not ask permission to use the scraper on 

February 16 because he did not see a supervisor nearby. He indicated, however, that there are radios on the site, including one in a nearby dragline. 

The radios could have been used to contact his supervisor or foreman. He 

stated that his foreman drove past him but he was not certain that the 

foreman saw him. 

During cross-examination, Mr. Neal repeated that he knew about the bad 

brakes when he began work with the scraper. He also repeated that the 

machine could be stopped by dropping the bowl. He was asked.about the bump 

which caused him to carry the bowl high, and indicated that he did not 

attempt to scrape it or smooth it out ·by dropping dirt. 

Mr. Neal admitted to several inconsistencies between his testimony in 

this case and his testimony in a prior matter. He admitted that in previous 

testimony he had stated that he was instructed to keep the bowl where it 

could be used to stop the machine. He also had previously testified that he 

did not know if his wheels had locked up during the accident, while at this 

proceeding he testified that the wheels had to be spinning, although he did 

not see them spin. He said a vehicle such as this can be stopped on ice by 

lowering the bowl, but he added that the ice had been removed from this road 

early on the day of the accident, and he could have removed it himself with 

the scraper. 

Alfred Haverfield was the mine foreman at the Ann Strip No. 1 Mine on 

February 16, 1979. He stated that he arrived at the mine around 6:15 or 

6:30 a.m. After inspecting the road conditions, he ordered all road areas 

to be cleaned with dozers. He told Mr. Neal and George Pincola to do this. 

195 
They were instructed to cut the ice and muck and remove it from the area. He 

stated that he was not aware that Mr. Neal was operating a scraper, and that 

he did not see Mr. Neal that day until immediately after the accident. He 

did not recall how high the berms on the road were that day, but he disagreed 

with the suggestion that they were only six inches high. He could not recall 

whether the berm heights changed between February 16 and February 20, 1979. 

He testified that before February 16, 1979, W. B. tried to maintain berms 

approximately three feet high because the company had been advised by MSHA 

inspectors that a three-foot height would be adequate. Mr. Haverfield also 

stated that it is difficult to maintain berm heights because dirt constantly 

falls on a road. This causes the height of the road to increase relative 

to the height of the berms. An operator has to continually remove dirt from 

the road to maintain berms. If there is much dirt spillage, the operator 

may have to scrape the roads four or five times a day. 

Mr. Haverfield testified that before each shift, mechanics inspect 

equipment visually and check the water and oil. He did not believe that they 

checked the brakes on this machine or that they usually check brakes before 

shifts because the machines are usually parked when they are checked. 

He stated that the firm held weekly safety meetings, and that all 

employees were told to wear seatbelts. Before February 16, 1979, four or 

five employees had been fired for misuse and improper maintenance of equipment, mainly draglines. On cross-examination, he added that if an employee 

finds a defect in a machine, he is instructed to shut down the equipment and 

contact his foreman by radio. There are several radios in the area, including one in a dragline about 100 to 150 yards away from the accident site. 

Mr. Haverfield reiterated that he did not give Mr. Neal permission to 

operate the pan scraper. W. B.'s policy is 

machines without first notifying a foreman. 

cess of bringing another man to the site to 

when he learned of the accident. 

to forbid operators from changing 

Mr. Haverfield was in the prooperate the scraper in question 

After the accident, Mr. Haverfield said he took Mr. Neal to the hospital. 

The men discussed the accident at that time. Mr. Neal told Mr. Haverfield 

that he had not been wearing a seatbelt, and that he had been carrying the 

bowl high. Normal procedure is to carry the bowl low. Mr. Haverfield stated 

that if Mr. Neal had carried the bowl low, he could have prevented the accident. Mr. Neal did not mention lack of brakes to Mr. Haverfield on the way 

to the hospital. 

Mr. Haverfield also discussed Mr. Neal's prior experience with a pan 

scraper. Mr. Neal had previously spread topsoil in a reclamation area using 

this equipment, but that area had been relatively flat. On the morning of 

the accident, Mr. Neal was assigned to a dozer called a "push cat." 

Mr. Haverfield said he did not consider Mr. Neal to be an experienced scraper 

operator in the area he was working. He said the weather that morning was 

freezing rain, but no drying material had been dropped on the road. 

196 
Willard F. Poe, an MSHA coal mining inspector, inspected the w. B. site 

on February 20, 1979, along with Inspector D. Ray Marker. Mr. Poe found that 

the berms along the road where Mr. Neal had his accident were inadequate. He 

stated that a berm can be made of a mound of any material. The berm he 

observed was made either of soil or shale. The height of the berm ranged 

from six inches to 24 inches, and it ran for 50 to 60 feet along the road. 

MSHA's policy is that berms should be the height of the axle on the largest 

machine which travels the roadway. That would have been 42 inches for the 

berms in this area. He also stated that in this case both sides of the roadway were "outer banks," as that term is used in 30 C.F.R. § 77.1605(k). One 

side was the outer bank going in one direction, and the other was the outer 

bank going in the other direction. He therefore felt that both sides of the 

the road required berms. 

On cross-examination, Mr. Poe stated that Mr. Neal's scraper was fully 

loaded at the time of the accident, and thus weighed about 50 to 60 tons. He 

did not know whether or not a benn of axle height would have restrained the 

scraper under the circumstances of this accident. He issued Citation No. 

784603 for inadequate berms at 9 a.m. that day. 

Leslie R. Ohler, another MSHA coal mine inspector, stated that he accompanied Inspector Marker on a visit to the hospital to see Mr. Neal on 

February 21, 1979. Mr. Marker conducted most of the interview with Mr. Neal. 

Upon leaving the hospital, the men determined that an imminent danger order 

would have to be issued for inadequate brakes on the scraper. They proceeded 

to the mine and inspected the scraper. They noted that some hydraulic hoses 

and air hoses were broken, and Mr. Marker told Mr. Ohler that an air valve 

leading to the scraper trailer had been turned off. This indicated to 

Mr. Ohler that no air was being pumped to the trailer. Mr. Marker also told 

Mr. Ohler that the push rods of the trailer's braking mechanism were inoperable. They were packed with ice and frozen dirt, and there was no indication 

that they had been moving. In Mr. Ohler's words, "There was no shiny place 

on it. It was rusted and sealed over." Mr. Ohler told Mr. Marker that he 

would have to issue the order, and Order No. 784405 was issued late that 

morning. 

Inspector D. Ray Marker was MSHA's next witness. He stated that he 

visited the mine on February 21, 1979, with Inspector Ohler. They inspected 

the scraper which had been in the accident. Mr. Marker noted that the valv.e 

which supplied air to the rear brakes was "across line," or in the "off" 

position. He also noticed that several brake lines were severed, and that 

the gooseneck of the vehicle was cracked. He found frozen brown dirt around 

the push rods, and saw no shiny marks on the rods. This indicated to him 

that rods were not operating. He concluded that the rear brake system had 

been inoperative for "quite a while." 

On cross-examination, he stated that during a preshift inspection, a 

qualified person should check equipment to see if it is safe. He stated that 

he did not know when the air valve was turned off on the vehicle, when the 

hoses were broken, or when the gooseneck was damaged. He could not state 

197 
whether or not these things happened during the accident. He also could not 

say whether the dirt that he found around the push rods accumulated during 

the accident or prior to it. He stated that it could have gotten there during the accident. 

He stated that a pan scraper can be stopped by dropping the bowl, and 

on reasonably level ground, the brakes should be able to stop it. On a 

slope, however, it is more difficult for brakes to stop a scraper. This is 

especially true when the scraper is loaded. Speed can also affect the 

brakes' ability to stop the scraper. He said the grade on this road was 

about 14 percent, and that proper brakes could stop a scraper on such a road. 

He added that the bowl would be less useful on icy roads. 

Mr. Marker stated that the violation was abated on June 11, 1979. This 

was the first time Respondent informed MSHA that the machine had been 

repaired. 

On cross-examination, Mr. Marker stated that he and his wife own the 

land which W. B. mines and receive monthly payments from w. B. Mr. Marker 

first stated that he had no discussions with, or complaints about, W. B. concerning royalty amounts. However, he subsequently admitted that, in a previous proceeding, he had testified that he made such complaints. He 

explained that he had problems with the dates that he received the royalty 

checks. The checks sometimes came a day late, he said. He also had problems 

with W. B.'s watering the road in front of the property. He stated he once 

had an excellent relationship with W. B. Now, he described it as "better than 

poor," but not good. He stated, "It's not my fault." He denied that he had 

ever asked w. B. for a job. 

Melvin Anderson, another scraper operator, was Respondent's first witness. He testified that he was sick on February 16, 1979, but on February 15, 

the day before the accident, he used the scraper in question. Asked about the 

condition of the vehicle's brakes, he stated, 11They were, I guess, what you 

would call adequate brakes." He did not list the brakes as being bad on his 

timesheet, but he added that it is not his habit to use the brakes. Instead, 

he usually uses a hand lever to lower the bowl for stopping. He stated that 

the bowl can be raised as much as two feet when empty, but that when the 

bowl is full, he normally operates with the bowl six to eight inches off the 

ground. 

Joseph Zalesky testified that at the time of the accident, he serviced 

and repaired heavy equipment, including the vehicle in question. He has had 

about 22 years of extensive experience in repairing this type of machinery. 

He stated that he now works for, and is part owner of, a company known as 

Rebuild, Inc. He was working at w. B.'s facility on the day of the accident. 

Mr. Zalesky first saw the scraper shoi;tly after the accident, when it 

was lying at the bottom of a pit. He uprighted the scraper with the help of 

dozers and a loader. He steered the vehicle as it was being pulled from the 

pit. Upon examining the brake gauge, he noticed that it had about 110 pounds 

198 
of pressure. The indicator was in the green, or satisfactory, area. He 

also noted that it had adequate braking power at the time to steer it. However, he noted that the gooseneck area of the vehicle had been damaged, and 

that several brake lines had been broken. He could not state whether or not 

the brakes were in good condition at the time of the accident. He was not 

able to test the brakes and determine whether some of these lines broke during the accident or had broken previously. 

Mr. Zalesky also stated that he had repaired the vehicle in early 

February, and had found the brakes to be adequate at that time. 

Richard Lynch, W. B.'s superintendent since it began operations 

7-1/2 years ago, testified that he has 32 years of experience operating heavy 

equipment, including pan scrapers similar to the one at issue. He stated 

that he and Mr. Haverfield assign employees to their jobs, and that Mr. Neal 

was assigned to a Caterpillar bulldozer on February 16, 1979. Before the 

accident, he did not see Mr. Neal operating the scraper in question. He 

stated that the road was "generally smooth and frozen," and that freezing 

rain was falling at the time of the accident. In his opinion, the accident 

was caused because Mr. Neal was driving too fast and locked all four wheels 

when he applied the brakes and skidded. Mr. Lynch noticed some skid marks, 

and the scraper bowl was in a high position. He concluded that the wheels 

had locked as a result of braking because if they had not locked, he would 

have seen tread marks. 

He also stated that a bowl should be carried no higher than necessary. 

By carrying the bowl low, the operator can stop quickly, as well as maintain 

a smooth road. He stated that the normal method of stopping such a vehicle 

is to drop the bowl slightly. Mr. Neal's big mistake was in carrying the 

bowl high. This created a high center of gravity and made the machine tip 

more easily. It also prevented him from lowering the bowl quickly to stop 

the vehicle. With respect to the bump that Mr. Neal testified prevented him 

from keeping his bowl low, Mr. Lynch stated that the bump could have been 

removed very easily, or else the operator could have filled up the area by 

dropping dirt. In Mr. Lynch's opinion, if Mr. Neal had dropped his bowl, he 

would have been able to stop the scraper. 

Mr. Lynch testified that W. B. stressed maintaining berms, but he added 

that berms could change very quickly depending on the type of work which was 

being done. He stated that the company has tried to maintain berms at axle 

height since the accident. Before the accident, they were never told of a 

specific height. He stated that even if the berm in question had been axle 

height, the vehicle would have rolled over, and might have rolled over more 

than it did. 

Mr. Lynch asserted that W. B. instructs its operators to wear seatbelts. 

This is because the company does not want MSHA to penalize it, and does not 

want its employees to be hurt. 

19B 
He also stated that it is against W. B.'s policy for an operator to 

switch vehicles without permission. He would not have given Mr. Neal permission to use the scraper on the day in question. Caterpillar Tractor, the 

manufacturer of this vehicle, says it generally takes about a year for an 

individual to become proficient in the operation of a pan scraper. This is 

only an average, however. Some men take more time, and some take less. 

He also stated that under the company's policies, if an operator finds 

his brakes to be inadequate, he is supposed to tell either his supervisor or 

a mechanic. Mr. Neal was within 200 feet of a dragline where there was a 

radio, and he could have informed someone before using the scraper. 

Mr. Lynch also took issue with a statement made by Inspector Marker. 

He said Mr. Marker had asked him for a job, but was turned down. 

On cross-examination, Mr. Lynch stated that on February 16, 1979, he 

arrived at work around 6:15 a.m. and inspected the work areas. He did not 

notice the bump on the road which Mr. Neal mentioned. He stated that the 

berms on the righthand side were about three feet high where the accident 

occurred. 

He also said that he believes Mr. Neal had a total of four to five days 

of pan scraping experience. He explained that Mr. Neal worked the pan 

scraper one to two hours a day after his normal duties, which usually 

involved operating a drill. W. B.'s employees are paid based on the total 

number of hours worked, and the hourly rate on the highest paid machine 

worked. Since operating a scraper pays more than operating a drill, Mr. Neal 

would put in for a full day operating a scraper, even though he may have 

actually operated one for only one or two hours. Thus, although on the accident report Mr. Neal said he had about three weeks of experience operating a 

pan scraper, Mr. Lynch said that in terms of total hours he had no more than 

four to five full days. 

Finally, Mr. Lynch testified that prior to February 16, 1979, he asked 

an MSHA inspector what was adequate height for berms. The inspector did not 

tell him, and Mr. Lynch concluded that "adequate" meant adequate to restrain 

a vehicle. He felt that three feet was an adequate height for a berm. 

George Pincola, a bulldozer operator for W. B. and a union secretary, 

has worked for the company for over three years. When Mr. Neal was using the 

pan scraper, Mr. Pincola used a bulldozer to help load the scraper. He 

stated that he never switched machines without notifying a mechanic or foreman because this is against company policy and could be dangerous. He also 

stated that he never carries a bowl over six to eight inches off the ground 

because that way if he wants to stop suddenly he can easily drop the bowl. 

He stated that in operating this type of scraper, he never trusts the brakes. 

In his opinion, if Mr. Neal had dropped the bowl, he would definitely have 

been able to stop the vehicle. 

200 
Max Sovell, w. B.'s general manager, testified that his duties include 

both operating and.safety responsibilities. He stated that W. B.'s relationship with Mr. Marker is not good. Mr. Marker has not been satisfied with 

W. s:s method of mining, and he does not feel W. B. pays him large enough 

royalties. w. B. apparently pays Mr. Marker less than it pays two adjoining 

land owners, and Mr. Marker complained. Mr. Sovell said Mr. Marker once filed 

a complaint with the Office of Surface Mining which resulted in a citation 

being issued against W. B. Mr. Marker also complained about the timeliness 

of his monthly royalty checks, which are due on the 25th of each month. On 

one occasion, a check arrived on the 26th, and Mr. Marker told W. B. it had 

violated its lease and had to get off his property. 

Mr. Sovell stated that it is the company's policy that employees are not 

supposed to switch machines without authorization. If an employee discovers 

a safety problem, such as inadequate brakes, he is supposed to immediately 

notify his supervisor or a mechanic. Furthermore, it is company policy to 

have all employees wear seatbelts and the company has a 10- to 20-minute 

safety meeting each week. Seatbelts and the unauthorized use of vehicles 

have been discussed at these safety meetings. Mr. Savell testified that due 

to his violations of company rules, Mr. Neal's employment was terminated 

around March 19, 1979. He added that the damage to the scraper cost the 

company approximately $30,000, and that the company has fired other employees 

for damaging equipment. 

He said he had never seen MSHA's inspection manual, in which the agency 

specified a height for berms, until about 30 days before the hearing, when his 

lawyers showed it to him. He also stated that between the accident and the 

inspection, nothing was done to reconstruct the berms. 

Inspector Poe was recalled, and testified that on February 20, 1979, he 

saw W. B. stripping and working on the road in question. The height of the 

berms at that time varied between six and 24 inches. 

Citation No. 784603 

MSHA alleged that Respondent violated the mandatory safety standard at 

30 C.F.R. § 77.1605(k). That standard reads: "Berms or guards shall be 

provided on the outer bank of elevated roadways." The citation read: 

The berms provided for the elevated haulage roadway were 

inadequate in that the berms ranged from 6 to 24 inches in 

height for a distance of approximately 50 feet in length. 

The axles for the Caterpillar 631B scrapers traveling this 

roadway measured approximately 42 inches in height. A serious 

non-fatal accident occurred on this roadway when a Caterpillar 

631B scraper (Serial No. 13G3145) traveled off this elevated 

roadway and overturned. 

I find that on February 20, 1979, Respondent was in violation of this 

standard. The road in question was an elevated roadway. Both banks could be 

201 
considered "the outer bank11 because there were drops on both sides of the 

roadway. 2/ Although on February 20, 1979, when Inspector Poe issued the 

citation,-there were berms along the road, I find that the berms were between 

six and 24 inches in height. I find Inspector Poe's testimony in this regard 

more reliable than contradictory testimony that the berms were 36 inches high. 

There was a lack of consistency among Respondent's witnesses with respect to 

the 36-inch height, and I was quite impressed by Inspector Poe's testimony. 

I thought he was much more knowledgeable about the height of the berms at 

the time. I also credit his testimony that there was work going on on 

February 20, when he was at the site. 

I agree with Respondent that MSHA's requirement that berms be axle 

height, or 42 inches in this case, was not binding on W. B. because the company had no knowledge of the requirement. However, implicit in the standard 

is a requirement that the berms be of reasonable height to offer protection. 

This is clear from the definition at 30 C.F.R. § 77.2(d). Mr. Lynch testified that a satisfactory height, in his opinion, would have been three feet. 

Even if I accept this figure, I find that the height of the berms at the time 

the citation was issued was less than three feet. At points it was as low as 

six inches. Therefore, the berms were not of sufficient height. I note that 

Mr. Lynch testified that at the time of the accident, the berms were about 

three feet high; but I do not believe he testified that the berms were that 

height on February 20. Therefore, I find that the berms were not adequate on 

February 20. 

The operator was negligent since it was aware that berms of six to 

24 inches were unsatisfactory. However, I recognize that the height of such 

berms changes constantly, and I therefore find W. B.'s negligence was not 

great. As to gravity, inadequate berms can lead to an accident. I do not 

believe Mr. Neal's accident would have been prevented by berms 36 inches or 

even 42 inches high. I credit the testimony of Respondent's witnesses that 

Mr. Keal improperly operated his scraper, and probably would have been thrown 

off the road even if the berms were of satisfactory height. Nevertheless, the 

gravity here is reasonably serious. 

I also note that the operator is a small operator, that it has a.good 

history of prior violations and that it achieved rapid abatement of this 

violation. Therefore, I assess a penalty of $500 for this violation. 

Citation No. 784404 

This citation was issued for an alleged violation of the mandatory 

standard at 30 C.F.R. § 77.403a(g). That standard reads: "Seatbelts 

2/ The Commission recently voted in an open meeting to affirm a decision by 

Chief Judge Broderick holding that both sides of a roadway could be considered 

the "outer banks." See 4 Mine Reg. & Productivity Rept. No. 42 at 1 (1980). 

As of this writing, Commission has not issued a written decision in the 

case, MSHAv. Cleveland Cliffs Iron Co., Docket No. VINC 79-68-PH. 

202 
required by § 77 .1710(i) shall be worn by the operator of mobile equipment 

required to be equipped with ROPS by§ 77.403(a). 11 30 C.F.R. § 77.1710(i) 

requires "[s]eatbelts in a vehicle where there is a danger of overturning and 

where roll protection is provided. 11 The citation read: "Seatbelts were not 

worn by the operator of the Caterpillar 631B scraper, Serial No. 

13G3145. This condition was determined during a serious nonfatal accident 

investigation. The Caterpillar 631B scraper was equipped with a roll over 

protective structure referred to as ROPS. 11 

The testimony of Mr. Neal and of Respondent's witnesses indicated that 

Mr. Neal was not authorized to operate the scraper, and he chose to operate 

the vehicle entirely on his own. This finding does not, of course, eliminate 

Respondent's liability. The actions of employees are attributable to their 

employers. Therefore, I hold that Respondent violated the standard. However, under these circumstances, I find that the operator's negligence was 

minimal. Therefore, I assess a penalty of $10 for this violation. 

Order No. 784405 

On February 21, 1979, Inspector Marker issued this order pursuant to 

Section 107(a) of the Act based upon a finding of imminent danger. The order 

read: "The Caterpillar 631B scraper, Serial No. 13G3145, was not equipped 

with adequate brakes (section 77.1605(b)). It was determined during a serious 

nonfatal accident investigaeion that at the time of the accident the scraper 

was being operated with inoperative brakes." 

I find that this order was proper at the time it was issued. The evidence is clear and undisputed that when Inspector Marker examined the vehicle 

after the accident the brake lines were severed and the brakes were in a 

defective condition. \Vhether this occurred during the accident or previously 

does not matter. The fact is that unless this vehicle was repaired, it could 

not be used without the operator in imminent danger. Therefore, the 

order was appropriate. 

The order also a violation of 30 C.F.R. § 77.1605(b), which provides in part: "Mobile equipment shall be equipped with adequate brakes 

* * *·" The additional question, therefore, is whether before the accident 

the operator was in violation of this mandatory safety standard, and if so, 

what civil penalty should be assessed. 

The witnesses who testified about the brakes were Mr. Neal, Mr. Anderson, 

and Mr. Zalesky. Mr. Neal stated that in the course of his operation of the 

scraper, in which he made approximately four runs before the accident, he 

found the brakes to be poor. Mr. Anderson stated that on the day before the 

accident, the brakes were adequate. Mr. Zalesky stated that after the accident he found the brake pressure to be sufficient although the brake lines 

were broken in spots. The net effect of Mr. Zalesky's testimony is that he 

is in no position to state whether or not on February 16 the brakes were 

satisfactory. The only evidence that the brakes were not satisfactory was 

Mr. Neal's testimony. In contrast, Mr. Anderson said that on the previous 

203 
day, the brakes were in good condition. I find that Mr. Neal's testimony is 

rather weak. Mr. Neal has been shown to be inexperienced in the operation of 

this scraper and I am not certain that in the confusion surrounding the accident, his ability to observe and recall was sufficiently accurate. There 

were also inconsistencies between Mr. Neal's testimony at this hearing and his 

testimony at an earlier hearing. I do not find Mr. Anderson's testimony that 

the brakes were in good condition on the previous day, and Mr. Zalesky's 

testimony that the brakes had been checked out earlier that month, to be outweighe<l by Mr. Neal's testimony that the brakes were not working. Mr. Neal's 

testimony is also somewhat suspect because he stated that he found the brakes 

to be unsatisfactory when he started the machine and yet continued to use it. 

His actions seriously undermine his testimony. Therefore, Petitioner has not 

proven that on February 16, 1979, the brakes were unsattsfactory as alleged. 

This citation is vacated. 

ORDER 

Respondent is ORDERED to pay $500 in penalties within 30 days of the 

date of this Decision in satisfaction of Citation No. 784603, and $10 in 

penalties within 30 days of the date of this Decision in satisfaction of 

Citation No. 784404. Order No. 784405 is AFFIRMED, but the citation alleging 

a violation of 30 C.F.R. § 77.1605(b) is VACATED. 

Distribution: 

~/~ Edwin S. Bernstein 

Administrative Law Judge 

Linda Leasure, Attorney, Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

R. Henry Moore, Attorney, Rose, Schmidt, Dixon, Hasley, Whyte & 

Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified Mail) 

204 
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. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 'JAN 1 4 iss1 

(703) 756-6225 

Petitioner 

Civil Penalty Proceeding 

Docket No. LAKE 80-210-M 

A.O. No. 11-00151-05001 

' Mine: St. Clair Quarry and Mill 

OGLE COUNTY HIGHWAY DEPARTMENT, 

Respondent 

DECISION 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department 

of Labor, Chicago, Illinois, for Petitioner; 

Walter z. Rywak, Esq., Ogle County Assistant State's Attorney, 

Oregon, Illinois, for Respondent. 

Before: Judge Edwin S. Bernstein 

The Secretary of Labor petitioned for the assessment of civil penalties 

totaling $142 for the following four violations of MSHA standards: 

Citation 30 C.F.R. Proposed 

Number Standard Penalty 

356901 § 56.14-1 $ 32 

356902 § 56.9-87 $ 44 

356903 § 56.14-1 $ 32 

356904 § 56.14-1 $ 34 

Total: $142 

In various prehearing conferences, the parties agreed that the sole issue 

separating them was whether or not Respondent is covered by the Federal Mine 

Safety and Health Act of 1977 (the Act), the authorizing statute for the regulations listed above. The parties requested that this issue be decided on 

the basis of joint stipulations of fact and cross motions for summary decision 

filed in accordance with Commission Rule 64, 29 C.F.R. § 2700.64. 1_/ The parties also proposed that if I find Respondent is covered by the Act, the case 

be settled for the full $142 amount recommended by Petitioner. 

1/ In an Order dated November 17, 1980, the parties were directed, 

inter alia, to file cross motions for summary decision and supporting briefs 

no later than December 15, 1980. No motion or brief has been received from 

Respondent. Therefore, this case will be decided on the basis of Petitioner's 

brief and the arguments made by Respondent in various earlier submissions. 

205 
The parties stipulated, and I find: 

1. I have jurisdiction over this matter and will decide whether Respondent is covered by the Act. Respondent reserves the right to appeal this 

decision. 

2. Respondent, a subdivision of the State of Illinois, operates an open 

pit called the St. Clair Quarry and Mill, located at Lime Kiln Road off 

Highway 64, two miles west of Oregon, Illinois, on land leased from Mr. Henry 

St. Clair. 

3. Respondent employs a "single bench" mining method to produce limestone. This limestone is crushed, broken and used to maintain the Ogle County 

Highway System. 

4. In connection with this pit, Respondent owns and uses a crusher and a 

Caterpillar end loader, and uses county highway trucks. It also utilizes 

between three and five employees, and produced 11,000 tons of limestone in 

1979. 

5. Respondent's facility has been inspected since 1979 by the U.S. 

Department of Labor. Prior to 1979, the facility was inspected, beginning 

in 1972, by the U.S. Department of the Interior. 

6. On November 28, 1979, MSHA Inspector Charles Ambrose conducted an 

inspection of Respondent's worksite and issued the four citations listed 

above. On February 6, 1980, MSHA proposed a total of $142 in penalties for 

these citations. 

7. 

matter. 

Act. 

Respondent is not contesting the citations or the penalties in this 

The only issue in dispute is whether Respondent is covered by the 

The Interstate Commerce Issue 

Respondent contended that "it is not subject to the Act because [its] 

activities are purely intrastate and do not affect interstate commerce." In 

order to decide on this question, it is necessary to examine the constitutional underpinnings of Federal jurisdiction over the mining industry. 

Article I, Section 8, Clause 3 of the Constitution gave Congress the 

power to "regulate Commerce * * * among the several States * * *·" The 

U.S. Supreme Court has a long history of upholding Federal regulation of 

ostensibly local activity on the theory that such activity may have some 

effect on interstate commerce. 

In Wickard v. Filburn, 317 U.S. 111 (1942), the Court upheld a Federal 

law regulating the production of wheat which was "not intended in any part 

for commerce but wholly for consumption on the farm." Id. at 118. The 

Court stated that: 

206 
[E]ven if appellee's activity be local and though it may not 

be regarded as commerce, it may still, whatever its nature, 

be reached by Congress if it exerts a substantial economic 

effect on interstate commerce, and this irrespective of 

whether such effect is what might at some earlier time have 

been defined as "direct" or "indirect". 

Id. at 125. 

In 1975, the Court elaborated on this idea, stating that "[e]ven 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." Fry v. United States, 

421 U.S. 542, 547 (1975). More recently, the Seventh Circuit Court of Appeals 

relied upon Wickard when it said that the commerce clause "has come to mean 

that Congress may regulate activities which affect interstate commerce." 

United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979) (Emphasis in 

original.) ~~ 

These principles have often been relied on by the lower courts in ruling 

on the coverage of the present Act and its predecessor, the Federal Coal Mine 

Health and Safety Act of 1969. 2/ One leading case is Marshall v. Kraynak, 

457 F. Supp. 907 (W.D. Pa. 1978), aff'd, 604 F.2d 231 (3d Cir. 1979), cert. 

denied, 444 U.S. 1014 (1980). There, the Court upheld the applicability of 

the 1969 Act to a small mine which was owned and operated entirely by four 

brothers. No other personnel had worked there for at least seven years and 

.the brothers had no intention of hiring other employees in the future. The 

brothers contended that all of the coal which they mined was sold and consumed within the State of Pennsylvania and did not involve interstate commerce. 

Id. at 908. The defendants admitted, however, that more than 80 percent of 

their production was sold to a paper processing corporation which was 

"actively engaged in interstate commerce." Id. at 909. The Court held that 

2/ Section 4 of the 1969 Act, which was substantially unchanged by the 1977 

Amendments Act, provided: 

"Each coal mine, the products of which enter commerce, or the operations 

or products of which affect commerce, and each operator of such mine, and 

every miner in such mine shall be subject to the provisions of this Act." 

Section 3(b) of the 1969 Act, which was not amended by the 1977 Amendments Act, defined "commerce" as: 

"[T]rade, traffic, connnerce, transportation, or communication among the 

several States, or between a place in a State and any place outside thereof, 

or within the District of Columbia or a possession of the United States, or 

between points in the same State but through a point outside thereof." 

It is clear that in enacting mine safety legislation, Congress intended 

"to exercise its authority to regulate interstate commerce to 'the maximum 

extent feasible through legislation'." Secretary of the Interior v. Shingara, 

418 F. Supp. 693, 694 (M.D. Pa. 1976), quoting S. Rep. No. 1055, 89th Cong., 

2d Sess. 1 (1966), reprinted in (1966) U.S. Code Cong. & Ad. News 2072. 

20'7 
"the selling by the defendants of over 10,000 tons of coal annually to a paper 

ptoducer whose products are nationally distributed enters and affects interstate connnerce within the meaning of * * * the Act." Id. at 911. 

A similar case was Secretary of the Interior v. Shingara, 418 F. Supp. 

693 (M.D. Pa. 1976), involving a mine which was operated entirely by two 

brothers, Edward and Frederick Shingara. In the words of the Court, "Edward 

[went] underground, while Frederick [did] the hoisting." Id. at 694. The 

Court found that the fruits of their labor were sold as follows: 

The Shingara coal is sold primarily to Calvin v. Lenig of 

Shamokin, Pennsylvania who resells it, along with other coal 

which he has gathered, to Keystone Filler and Manufacturing Co., 

Inc. of Muncy, Pennsylvania and Mike E. Wallace of Sunbury, 

Pennsylvania. Keystone Filler combines the Shingara-Lenig 

coal with others in order to achieve a particular ash content, 

dries the mixture, and grinds it into a powder which is 

shipped to customers outside of Pennsylvania. 

Id. The Court stated that "(a]lthough the activity in question here may seem 

on first examination to be local, it is within the reach of Congress because 

of its economic effect on interstate commerce." Id. The Court compared the 

facts of the case to the facts in Wickard and concluded that "the Shingara 

coal mining activity, which has an even more direct impact on the coal 

market, also 'affects commerce' sufficiently to subject the mine from which 

it emanates to federal control." Id. at 695. 

In both Kraynak and Shingara, the coal in question was being sold to 

parties who were engaged in interstate commerce. In other mining cases, such 

facts were not shown, but the courts nevertheless utilized the seminal Wickard 

decision to find that the activities in question "affected commerce. 11 Marshall 

v. Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979), involved a specific agreement 

between the owner of a coal mine and his buyer that the latter would sell the 

coal only within the state and not place any of it into interstate commerce. 

In holding that interstate commerce was still affected, the Court went back to 

the following passage from Wickard: 

It can hardly be denied that a factor of such volume and 

variability as home-consumed wheat would have a substantial 

influence on price and market conditions. This may arise 

because being in marketable condition such wheat overhangs 

the market and if reduced by rising prices tends to flow 

into the market and check price increases. 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. 

478 F. Supp. at 7, citing 317 U.S. at 128. Using this rationale, the Kilgore 

Court found that: 

208 
[I]t is inescapable that the product of the defendant's mine 

would have an affect (sic] on commerce. The fact that the 

defendant's coal is so~only intrastate does not insulate 

it from affecting commerce, since its mere presence in the 

intrastate market would effect [sic] the supply and price of 

coal in the interstate market. 

478 F. Supp. at 7. See also Marshall v. Bosack, 463 F. Supp. 800, 801 (E.D. 

Pa. 1978) ("The Act does not require that the effect on interstate commerce be 

substantial; any effect at all will subject [the operator] to the Act's 

coverage.") 

I am aware of only one case where a Court held that a mine did not affect 

commerce within the meaning of the Act. Morton v. Bloom, 373 F. Supp. 797 

(W.D. Pa. 1973), involved a one-man mine which had no employees. The coal 

which the defendant produced was sold "exclusively within Pennsylvania." Id. 

at 798. The Court held that this operation was not the type which Congress 

intended to cover when it enacted the statute. Id. More significantly, the 

Court found itself unable to conclude "that defendant's one-man mine operation will substantially interfere with the regulation of interstate commerce.11 Id. at 799. Even under the Wickard standard, the Court stated that 

the mine was "one of local character in which the implementation of safety 

features required by the Act will not exert a substantial economic effect on 

interstate commerce." Id. 

I have carefully reviewed the Court's reasoning in Bloom, and I conclude 

that it should not be followed in the instant matter. First, I do not believe 

the Court properly considered all of the possible means by which the Bloom 

operation could have affected interstate commerce. At one point in the opinion, the Court noted that the "defendant does use some equipment in his mine 

which was manufactured outside of Pennsylvania * * *·" 373 F. Supp. at 798. 

The Court found that this did not bring the defendant's mine within the ambit 

of the commerce clause since the purchase of this pment was "so limited 

that its use would be de minimis. 11 Id. This reasoning, in my view, runs 

directly contrary to Supreme Court's statement in Mabee v. White Plains 

Publishing Company, 327 U.S. 178, 181 (1946), that the de minimis maxim 

should not be applied to commerce clause cases in the absence of a Congressional to make a distinction on the basis of volume of business. And, 

as the Court noted in Bosack, the Mine Safety Act does not require that the 

effect on interstate commerce be substantial. See 463 F. Supp. at 801. 

Secondly, and perhaps more importantly, the Court in Bloom did not consider the effects which many one":'1Ilan coal mining operations, taken together, 

might have on interstate commerce. Going back once again to the Wickard 

case, the Supreme Court held that even if the wheat in question was 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." 317 U.S. at 128. 

209 
After a careful review of the facts stipulated by the parties, and the 

relevant case law on the interstate commerce issue, I find Respondent to be 

covered by the Act. 

Decision and Order Approving Settlement 

As stated above, the parties that if Respondent is covered by the 

Act, they would settle the case for the full $142 amount proposed by MSHA. 

The settlement motion submitted by the parties contained an analysis of the 

six criteria in Section llO(i) of the Act as they relate to each of the citations. Specifically, the parties' motion stated that each violation resulted 

from ordinary negligence on the part of Respondent, and that Respondent "took 

extraordinary steps to gain compliance" by remedying each of the situations 

giving rise to the citations listed above. In light of this information, I 

find that the proposed settlement is sufficiently substantial to effectuate 

the purposes and policies of the Act and I approve it. 

ORDER 

Respondent is ORDERED to pay $142 in penalties within 30 days of the 

date of this Order as follows: 

Distribution: 

Citation No. 

356901 

356902 

356903 

356904 

Total: 

Edwin S. Bernstein 

Administrative Law Judge 

Rafael Alvarez, Attorney, Office of the Solicitor, U.S. Department of 

Labor, Eighth Floor, 230 South Dearborn Street, Chicago, IL 60604 

(Certified Mail) 

Walter z. Rywak, Ogle County Assistant State's Attorney, Ogle County, 

Oregon, IL 61061 (Certified Mail) 

210 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

QAN 1 ·4 1981 

WHITE PINE COPPER DIVISION, 

COPPER RANGE COMPANY, 

Contest of Order 

Applicant Docket No. LAKE 80-236-RM 

v. 

Order No. 298441 

SECRETARY OF LABOR, February 19, 1980, as modified 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), White Pine Mine 

Appearances: 

Before: 

Respondent 

DECISION 

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill 

& Greenlee, P.C., for Applicant; 

Gerald A. Hudson, Esq., Office of the Solicitor, U.S. Department of Labor, Detroit, Michigan, for Respondent; 

Harry Tuggle, Safety Director, for the United Steelworkers 

of America. 

Judge Edwin S. Bernstein 

STATEMENT OF THE CASE 

This is a proceeding filed under Section 107(e) of the Federal Mine 

Safety and Health Act of 1977 (the Act) by White Pine Copper Division, Copper 

Range Company (White Pine or Applicant), to review an order of withdrawal 

issued by an inspector of the Mine Safety and Health Administration (MSHA or 

Respondent). The order was issued under Section 107(a) of the Act for an 

alleged imminent danger at the White Pine Mine. I conducted a hearing on 

October 28, 29, and 30, 1980, in Ironwood, Michigan. Bruce Haataja, the MSHA 

inspector who issued the withdrawal order, William Carlson, an MSHA mining 

engineer, and William W. Lutzens testified for MSHA; Al Goodreau, Brian 

McGunegle, Joe Maher, Wally Olkkonen, and William Dorvinen testified for 

White Pine; and John Cestkowski and Dale Sain testified for the United 

Steelworkers of America (the Union or Steelworkers). 

The issue before me is whether or not Withdrawal Order No. 298441, dated 

February 19, 1980, and its modifications, dated February 22, 1980, and 

February 25, 1980, were proper. 1/ 

}.:._/ Order No. 298441 read as follows: 

"A violation of a mandatory standard was not observed. This order is 

issued to forbid persons from entering the test area in Unit 56 until it is 

211 
FINDINGS OF FACT 

At the hearing, the parties stipulated, and I find: 

1. White Pine Mine is owned and operated by Applicant, White Pine 

Copper Division, Copper Range Company. 

2. White Pine is subject to the jurisdiction of the Federal Mine Safety 

and Health Act of 1977. 

3. I have jurisdiction over this proceeding. 

4. The subject order and modifications were properly served upon Applicant by a duly authorized representative of the Secretary of Labor. These 

documents may be admitted into evidence solely for purposes of establishing 

their issuance. 

Applicant's witnesses testified about the background of the bolt removal 

program which resulted in the issuance of the order. ];./ 

Brian McGunegle, White Pine's superintendent of technical services, has 

a bachelor's degree in mining engineering, and a master's degree in rock 

mechanics, as well as a good deal of experience in mining engineering at 

White Pine and elsewhere. He stated that the White Pine Mine had been in 

operation since the early 1950's, and that about 80 to 90 percent of the 

mined area had roof bolts. The roof, or back, of the area known as Unit 56 

was sandstone which was relatively stable and strong. Early in 1980, the 

company decided to conduct a test involving the removal of roof bolts in one 

area of Unit 56. The purpose of the test was to determine if mining could be 

performed at White Pine without the use of roof bolts. He stated that the 

roof bolts in Unit 56 were four-foot bolts on four-foot centers. They had 

fn. 1 (continued) 

established the test area is stable. 

except those selected to perform the 

The first modification read: 

This area is closed to all persons 

test duties and inspection." · 

"A violation of a mandatory standard was not observed. This action is 

taken to modify Order No. 298441, dated 2-19-80. A fall of ground occurred 

in NlOl & N98 & W25 intersection in Unit 56 test area immediately following 

removal of roof bolts. This area is closed to all persons and no further 

work shall be performed until roof support has been installed. * * *" 

The second modification read: 

"This action is taken to modify Order 298441, dated 2-19-80. No more 

roof bolts shall be removed from the areas that are already bolted unless 

supplemental support is provided. That support shall be on the same centers 

as existing b~lts. Only after the roof bolt removal program is completed 

shall the supplemental support be removed." 

2/ Although MSHA's witnesses testified first at the hearing, in the interest 

of clarity the testimony of Applicant's witnesses will be synopsized first. 

212 
been used 11as a matter of habit," and were installed in this area in the 

latter half of 1979, when the area was mined. He stated that the area had 

an excellent back and that the operator expected little difficulty when the 

bolts were removed in the southern part of the test area. Farther north, 

however, where there was a roof fault, it was expected that some loose rock 

would fall. 

The test began on February S, 1980, when the first roof bolts were 

removed. The company decided to use two experienced foremen to do the 

actual bolt removal. The safeguards that were utilized included use of 

retreat mining, 3/ convergence data, 4/ borescope holes, 5/ warning lights 

and gauges, !!_/ and roof sounding. J_/ - -

Mr. McGunegle stated that loose rock is not an unusual condition, and 

can be present regardless of whether bolts are in the roof. On crossexamination, he insisted that the area was basically stable, although there 

was loose rock near the faults. He stated that bolts can support some 

loose rock, but that beyond that, in a "massive competent" sandstone area 

such as this, they serve no function. 

Mr~ McGunegle stated that on February 7, 1980, two days after the test 

began, he went to the local MSHA office with Julio Thaler, the mine superintendent, and Albert Osenich, White Pine's safety director. The men briefed 

MSHA inspector William Carlson about the test which they had begun two days 

earlier. Mr. Carlson expressed concern that the test area was not representative of the general roof conditions in the mine, and that the miners would 

not accept the results of the test. Other than that, however, Mr. Carlson 

indicated no disapproval at the meeting. 

'}_/ In retreat m1n1ng, the mining operation, or in this case the bolt removal, 

proceeds in an outby direction so that the men doing the work were backing 

away from the area where bolts had been removed. The men were thus operating 

under supported roof. 

4/ · Convergence data is gathered by taking measurements with a device called 

an "extensometer rod" to determine the distance from the floor to the roof. 

These measurements are taken at periodic intervals and compared to determine 

whether there is any downward movement of the roof. These rods are capable 

of measuring roof sags as small as 1/1000 of an inch. Mr. McGunegle stated 

that generally, a roof which is unstable will start to move downwards and 

this movement will be reflected in the convergence data. He also testified 

that he had personally taken some convergence readings in this area, and had 

assisted in retrieving bolts from unbolted areas. 

·5/ The use of borescopes, or stratascopes, involves drilling holes in the 

roof and shining a light into the holes to examine for signs of shifting or 

other instability. Steel tape measures may also be inserted into such holes 

to feel for separations in the roof layers. 

6/ Gauges and warning lights are attached to extensometer rods to detect 

any sagging in the roof and measure the amount of sag. 

7/ Sounding involves striking the roof with a bar and listening for a 

hollow or "drummy" sound which would indicate an unstable roof. 

213 
Applicant's next witness was Joe Maher, White Pine's director of mine 

planning and engineering. Mr. Maher also has a degree in mining engineering. 

At the time of the test in Unit 56, he was in charge of ground control at 

White Pine. He gave testimony similar to Mr. McGunegle's concerning the taking of convergence data at various reference points via an extensometer. He 

agreed that this data monitors roof changes at 1/1000 of an inch increments. 

He explained that convergence data is gathered by a team of technicians and 

that graphs are compiled. He stated that there was always convergence going 

on to some degree, and that the amount of convergence varies throughout the 

mine. It is therefore important to look for departures from established 

trends, such as increases in the rate of convergence in a particular area. 

Mr. Maher explained that a mechanical roof bolt performs the functions 

of suspending material from higher strata, keystoning, 8/ and inducing interbed friction within roof strata. He stated that the test site in Unit 56 had 

been selected because its structure was "massive sandstone [with] no bedding 

planes and shale," and the company felt it could get by with fewer bolts in 

this area. The men did not think the bolts were needed for the purposes of 

helping interbed friction or keystoning. Mr. Maher felt that the majority of 

roof bolts contributed nothing to the support of the roof, but that a small 

percentage contributed either by suspension or keyst:oning. 

Mr. Maher stated that informal discussions were held in early or midJanuary, 1980, concerning performing the test in this area. It was decided 

to use a Joy pneumatic roof bolter which had a canopy and which allowed the 

operator to work 10 to 12 feet from the end of the boom. Mr. Maher stated 

that signs were placed at all entries to the area. The signs read: 

"Restricted Area - Authorized Personnel Only." Mr. Maher selected two foremen to perform the test. He emphasized that they would be retreat mining and 

using warning lights, dial gauges, and roof sounding. They also periodically 

trimmed any loose roof. The men proceeded in a cautious manner, working 

slowly, keeping detailed records, and keeping track of any loose roof that 

came down. 

Mr. Maher agreed with Mr. McGunegle that in the southern portion of the 

area, there was a massive roof with little or no loose. The men expected 

little trouble with the roof there. Upon removal of the roof bolts, there 

was no roof sag, and only a few small pieces of ground fell. He regularly 

visited the area, and was prepared to visit it daily if convergence data 

revealed a possible problem. Since convergence did not occur in the southern 

area, he visited it every other day. 

In the northern part of the area, there was no convergence from 

February 5 until February 21, 1980. On February 21, there was a large roof 

fall. Mr. Maher stated that the reason for the fall was that the roof bolts 

8/ "Keystoning" is a term used to denote the"use of a bolt to hold up a 

block of roof and "key11 it to other such blocks. 

214 
had been holding that large piece up. He stated that he visited the test area 

on March 13 with Mr. Carlson, and on April 1 with another MSHA inspector, 

Wally Lutzens. 

Mr. Maher also stated that he had telephoned Mr. Lutzens on February 7 

to inform him of the test and the procedures. Mr. Lutzens expressed concern 

about safety and recommended the use of temporary supports. Mr. Maher did 

not use temporary supports because he felt they would prevent him from measuring roof movements after the bolts were removed. Mr. Maher felt his method 

was safe, and temporary supports would create problems. He was particularly 

concerned that in removing such supports, the men would have to drag them 

out of the area and possibly dislodge other supports. He reiterated that 

based upon available convergence data he felt the roof was stable. However, 

he admitted that at the point where the large piece of rock fell, there was 

no indication in the convergence readings that the roof might come down. He 

stated that the fall was in the immediate roof and not in the main roof, 

and he repeated that there must be convergence before a fall. This was, in 

his words, a "physical law." 

Wally Olkkonen testified that he was involved in the test from start to 

finish, operating the roof bolter, taking notes, and keeping records. He 

repeated the list of safety precautions which the crew utilized, including 

the use of light gauges, dial gauges, roof sounding, observation holes, and 

retreat mining. He stated that the operator of the roof bolter was always 

under bolted ground when manipulating the controls. He stood under the 

machine's three-foot-square canopy. The other man on the crew was behind the 

bolter under bolted roof, but not under a canopy. The machine's boom 

extended out 10 to 12 feet. Mr. Olkkonen added that the men were required to 

retrieve the removed bolts, the lights, and the gauges, and that this 

required them to go under unbolted roof. He stated that he never had any 

indication of convergence, and that no warning lights came on during the 

process. He kept a warning gauge and light in front of him and behind him. 

Mr. Olkkonen felt that removing bolts was easier than installing them, 

since removal is a one-step process. In installing bolts, a hole has to be 

drilled first, and then the bolt has to be installed. 

He also stated that in one area where he had noted loose rock, he 

sprayed the edge of the loose with white paint. This was between W-21 and 

W-23 at N-98 near the intersection of 98 and 23. 9/ Although this was an 

area of suspected loose, it did not fall. At N-101, between W-25 and W-27, 

there were two areas of loose which fell on February 20. This was a faulted 

area, and the men anticipated loose coming down. When they sounded it with 

a bar, there was a drummy sound. 

'}_/ The coordinates used in this Decision are taken from the mine map which 

was admitted into evidence as White Pine's Exhibit S. 

215 
The men also got a drummy sound in the area at W-25 and N-98. Visually, 

Mr. Olkkonen could see a couple of low-angled faults. The two faults intersected, and there were two areas of loose which overlapped each other. Looking from the side, there was a wedge-shaped, low-angled fault. The men 

started removing the bolts at the southwest corner of the intersection on 

February 21 and worked backwards. As they worked across the first piece of 

loose, they were expecting it to fall. It did not fall, however, until they 

had removed the bolts from the second, larger piece of loose. Mr. Olkkonen 

reasoned that the two pieces were keyed together. The section of roof which 

fell was approximately 20 feet by 28 feet, and varied between six and 

24 inches in thickness. 

On cross-examination, Mr. Olkkonen was asked whether roof falls sometimes happen very rapidly. After some hesitation, he answered, "Well, it 

depends on what kind of roof fall you are talking about. 11 He described the 

February 21 fall as slow and controlled. With respect to the other area 

which he had marked as faulted, he understood that it was barred down, but 

he was unsure of this. 

William Dorvinen, who has been employed by White Pine since 1956, testified that he operated the roof bolter for nine days, including the period 

from February 19 to February 21, 1980. He also testified about the various 

safety precautions which were taken during the bolt removal process. His 

testimony was consistent with Mr. Olkkonen's concerning where the men on the 

crew stood while the bolts were being removed. He added that the machine's 

operator was 12 to 15 feet behind the bolt that was being worked on, and that 

the other man was about 22 feet away from it. He stated that bolts were 

removed a row at a time, from right to left, where the back seemed good. If 

the back did not seem good, they removed one bolt at a time and retrieved it 

before proceeding. In the nine days that Mr. Dorvinen was on the project, he 

detected no separation from his examination of borescope holes, and he never 

saw a safety light come on or observed any convergence in the dial gauges. 

He stated that Mr. Olkkonen kept daily notes, and the company's rock mechanics 

took convergence readings. These men also told Mr. Dorvinen that there had 

been no convergence. When he heard a drum.my sound in the roof, the men were 

more cautious, and anticipated the back to fall as they removed the bolts. 

Mr. Dorvinen was present at the February 21 fall near the intersection 

of N-98 and W-25. The men had sounded the roof and heard a drummy sound. 

They decided that the loose would fall. He added that he told MSHA inspector 

Bruce Haataja that they expected it to fall. Before removing the bolts, they 

drilled and checked borescope holes. They set one gauge and light between 

the front of the machine and the boom, 10/ and they set another gauge and 

light behind the machine. They removed~he bolts from right to left, moving 

the gauge and light as they removed each bolt. The warning light behind them 

10/ Mr. Dorvinen stated that normally the men would place a warning light 

and gauge in the unbolted area. Here, however, because of the less secure 

roof, they placed the light and gauge between the boom and the machine. 

216 
was the only source of light in that area, since the area was dark, and the 

men constantly glanced at it to see if it had come on. He noted that on the 

north side there were separation lines where the ground had moved. 

'When the loose piece came down, he jumped back. He noted some sagging 

before they removed the last two bolts. He also stated that the thinnest 

part of the loose was located near where the last bolt was removed, i.e., 

closest to where the men were standing. He asserted that he never felt he 

was in danger at any time during his nine days in the area. 

On cross-examination, Mr. Dorvinen stated that there were no discussions 

with Mr. Haataja that day with regard to stopping operations or with respect 

to continuation of the program after the fall. He testified that work was 

stopped after the fall only because it occurred at or near the end of the 

working shift. 11/ He also stated that there was other mining activity in 

Unit 56, approximately 300 feet to the north of the test site. 

When cross-examined by the Union representative, Mr. Dorvinen agreed 

with Mr. Olkkonen that bolt removal was safer than bolt installation, and 

that ground falls -are predictable through convergence readings. He also said 

that if the large piece of ground had fallen on the machine it would have 

only shaken up the machine's cab. He added that he had not been in the test 

area since F~bruary 21, 1980. 

Albert Goodreau also testified for Applicant. Mr. Goodreau is a safety 

engineer at 'White Pine who has been with the company for eight years. His 

primary duty is to accompany MSHA inspectors on the mine property. He testified that he was served with the withdrawal order on February 19, 1980. The 

first modification was issued· to another 'White Pine official, a Mr. Butson, 

on February 22. The second modification was issued to Mr. Goodreau on 

February 25. 

MSHA's first witness was Bruce Haataja, the MSHA inspector who issued 

the withdrawal order and modifications. He was assigned to inspect the test 

area by his supervisor, William Carlson. Mr. Carlson told Mr. Haataja there 

was a possibility of someone getting hurt in the test area as the bolts were 

being removed from the roof. 

Mr. Haataja stated that the bases for his conclusion that an imminent 

danger existed was that the back was unsupported, that it was drummy in some 

places, and that the roof had fallen in three areas. The roof in these areas 

was faulted. He testified that when he arrived at the test site on 

February 19, he found that warning signs had been put up by 'White Pine to 

keep everyone but authorized personnel out of the area. Mr. Haataja added 

MSHA's "Keep Out11 signs to the company's signs. 

11/ Mr. Dorvinen explained that in this unit, as elsewhere in the mine, there 

were three shifts, and work went on seven days a week. However, the bolt 

removal was done only during one shift, which ran from 7:00 a.m. to 3:00 p.m. 
He stated that when the two foremen were removing roof bolts, they always 

stood behind and in the vicinity of the roof bolter. With the boom of the 

bolter extended, the men were 10 to 15 feet behind the bolts being removed. 

The machine's operator was under a protective canopy. Mr. Haataja said that 

the men were using dial gauges and warning lights, and that he never saw a 

light go on that day, nor did he see any significant convergence indicated on 

the dial gauges. He admitted that he did not personally sound the roof with 

a trimming bar, and that he did not observe a ground fall on February 19, 

although he did see some fallen ground on the floor. The inspector was not 

sure when this loose came down. 

Before issuing the withdrawal order, he did not go to the rock mechanic's 

office and review available convergence data. He stated that he was unaware 

of any rock instability found by the rock mechanics as of February 19. At 

one point, he was asked, "[Y]ou didn't have any indication on the day you 

issued that order that there was anything in the test area that was unstable, 

did you?", and answered: "I don't know** *we didn't have time to get convergence readings in there to make the decision. The roof bolts were removed. 

That condition right there was unstable." 

Mr. Haataja visited the test area again on February 20 and 21. At about 

12:15 p.m. on February 21, he observed the large roof fall. He issued the 

first modification to the withdrawal order at 7:00 a.m. on February 22. He 

was asked whether the men who were working in the area told him that it was 

going to fall, and answered, "They may have." He was also asked why he 

waited approximately 20 hours after the fall to issue the modification. The 

inspector answered, "I wanted to discuss the situation with my supervisor." 

He was then asked, "In other words, you didn't think at the time you observed 

this fall of ground that the people who were engaged in the operation were in 

such danger that they should stop operations right then and not continue to 

remove another roof bolt?" He answered: "Well, if I didn't issue the order 

at the time, I guess I didn't." 

Mr. Haataja also stated that after the roof fall, he did not tell the 

men to stop work. On recross-examination, he testified that in the three or 

four days that he was in the test area (between February 18 and February 22), 

he never observed any kind of peel-back of the roof. When the roof fell on 

February 21, it hit the roof bolter, but Mr. Haataja did not recall the 

equipment being damaged. Further, although the inspector was close to the 

fall, no loose came down in the immediate area where he was standing. 

William Carlson, a supervisory mining engineer for MSHA, testified that 

there was a meeting in his office on February 7, 1980, concerning the White 

Pine test program. The meeting was attended by Mr. McGunegle and two other 

White Pine officials. These men briefed Mr. Carlson about the test, and 

informed him that the bolt removal had already begun. Mr. Carlson expressed 

some concern that this type of test was unusual and he assigned Mr. Haataja 

to follow the program and observe the bolt removal. On cross-examination, he 

recalled making this assignment after he received a telephone call from 

218 
Mr. Cestkowski, on behalf of the Union. Mr. Carlson stated that he was surprised to hear from Mr. Cestkowski, since there had always been cooperation 

between management and the Union concerning "anything out of the ordinary," 

and things had always gone smoothly. Mr. Cestkowski indicated that the Union 

was never consulted about this test. MSHA is required to respond to any such 

complaint, whether it comes from a miner or from a representative of miners. 

In response to Mr. Cestkowski's call, Mr. Carlson sent two inspectors to 

check the test site on February 15. These men, Inspectors Spencer and Stile, 

found the area to be dangered off and did not issue any orders. Mr. Haataja 

was assigned to follow through on their initial inspection. 

Mr. Carlson testified that the Union complaint indicated MSHA should 

obtain some data on the test; the complaint did not allege imminent danger. 

He stated that he cannot cite a metal-nonmetal operator simply for changing 

its roof control plan unless he observes a violation of a standard. He 

admitted, however, that the concept of mining without support was unusual for 

this unit, which had always been supported with roof bolts. 

William Lutzens, an MSHA mining engineer, testified that on April 1, 

1980, he visited the test area. He stated that the area is composed mainly 

of sandstone with some exposed shale near a fault which traverses the area. 

This fault is on the northern side of the test area. The roof near the fault 

was disturbed, fractured, and less competent than the roof in the southern 

side of the test area. Mr. Lutzens recommended that the operator install and 

remove temporary supports in a "leap-frog" manner to protect the workers. JJ:_/ 

On cross-examination, Mr. Lutzens conceded that White Pine generally had 

a very good ground control program. In his opinion, ground control is "a 

little bit of an art rather than a science," and the White Pine people are 

good practitioners of the art. He stated that his recommendation to remove 

the bolts in a leap-frog fashion was based upon a roof control standard for 

coal mines (30 C.F.R •. § 75.200-14), and what he considered to be "good mining 

practice. 11 He admitted that he never actually observed the bolt removal 

process in the test area. 

Mr. Lutzens stated that roof bolting generally has three purposes: (1) 

to support unsupported particles; (2) to increase friction between layers and 

prevent sliding; and (3) to key irregular fractures. Mr. Lutzens said that 

aside from the large fault at the northern side of the test area, there were 

approximately 11 smaller faults. He stated that one of the~e, a wishbone 

fault which he counted as two faults, might possibly be considered unsafe. 

He stated that during an April 1 examination, he got a drummy sound from the 

roof and saw some half-moon areas in borescope holes. This usually indicates 

12/ "Leap-frogging" involves the installation of temporary supports near the 

roof bolts. After the bolts are removed, the supports are pulled away with 

chains. This procedure would be followed row by row as the workers proceeded 

backwards, in an outby direction. 

219 
strata slippage. However, he also stated that the convergence data indicated 

stable roof. While this is generally a good indication of stability, it is 

not infallible, he said. 

John Cestkowski testified on behalf of the Union. He stated that he has 

been employed at White Pine for the past 21 years, and is the president of the 

local union. He also serves as chairman of the underground safety committee, 

the surface safety committee, and the general safety committee. He was first 

advised of the test on the morning of February 5, 1980, by Julio Thaler, the 

mine superintendent. He told Mr. Thaler that the Union opposed the test and 

would protest it. He was concerned that the bolt removal might cause a 

cave-in which could extend to other mining fronts where people were working, 

and endanger miners in these areas. Mr. Cestkowski reasserted his opposition 

to the test at a meeting with management officials held on February 13, 1980. 

He stated that he called Mr. Carlson around February 13 or February 14 and 

requested an investigation of the test site to determine if the test was 

being performed safely. 

He testified that the company's warning signs were in big, bold letters 

and were larger than the danger signs placed by MSHA. However, he felt that 

the advantage of having MSHA's smaller signs was that the company's signs 

sometimes fell down or were removed. There was no evidence, however, that 

the company's signs in the test area were removed. 

Mr. Cestkowski disagreed with Mr. McGunegle's contention that 10 to 

20 percent of the mine was unsupported. In his opinion, 98 to 99 percent of 

the mine had some sort of roof support. He knew of no other situation in 

which White Pine had ever removed any roof bolts, and since 1960, he had 

never seen any area in White Pine without roof support. He also took issue 

with previous testimony concerning the reliability of convergence data in 

predicting roof falls. Mr. Cestkowski noted that on April 23, 1980, there 

was a fall of ground in Unit 95, where miners were working, and he indicated 

that convergence data had not been helpful in predicting that fall. 

Finally, Mr. Cestkowski disputed the company's contention that it is 

safer to remove bolts than to install them. He stated that when you remove 

bolts you do not know what will happen when the bolt comes out. On crossexamination, he stated that the piece of rock that fell in Unit 56 was sandstone. He added that if this rock had hit the roof bolting machine, it would 

have torn the machine's canopy off or tipped the machine over. 

Dale Sain also testified for the Union. He has been a miner at White 

Pine since 1956. He is a Union committeeman and member of the Union's executive board. He testified that in Unit 95, where he works, there had been a 

roof fall in April 1980, and that prior to the fall the rock mechanics had 

read convergence points and said nothing about the readings. This led 

Mr. Sain to believe that the convergence data indicated a safe roof, and his 

foreman told him that the convergence did not indicate there would be a fall. 

Mr. Sain also stated that he had several hundred hours of experience 

operating a roof bolter of the type that was used in removing the bolts in 

220 
Unit 56. Based on this experience, he testified that a two- to three-ton 

chunk of rock hitting the machine could flip it over. He added that he knew 

of one fatality which occurred in 1957 under this type of ground. On crossexamination, however, he stated that the company was not using convergence 

data, warning lights, or dial gauges at that time. 

Mr. Sain disputed the company's contention that 10 to 20 percent of the 

mine was unsupported, and agreed with Mr. Cestkowski that 98 to 99 percent 

of the mine was supported. He disagreed that it was safer to remove bolts 

than to install them. He explained that when a miner is installing bolts, he 

is usually about 10 feet away from solid rock, whereas in bolt removal the 

entire area is open. 

White Pine recalled Al Goodreau as a rebuttal witness. Mr. Goodreau 

stated that he was familiar with the facts and circumstances surrounding the 

roof fall in Unit 95. The information which he collected on that incident 

revealed that at 2:30 p.m. on the day in question, the warning lights came 

on, and the dial gauges indicated that the roof had sunk 12/1000 of an inch. 

The warning lights and gauges were reset, and at 2:40 p.m., the lights went 

on again. The gauges indicated that the roof had come down 18/1000 of an 

inch. The lights and gauges were reset once more, and at 2:55 p.m., the 

gauges indicated that the roof had come down a total of 54/1000 of an inch. 

The roof caved in shortly after that, at approximately 3:05 p.m. 

CONCLUSIONS OF LAW 

Section 107(a) of the Act reads: 

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 from, 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 cause such imminent danger no longer exist. * * * 

The Commission's predecessor, the Interior Board of Mine Operations 

Appeals, set up the following test to determine whether a particular situation constitutes an imminent danger: 

[W]ould a reasonable man, given a qualified inspector's education and experience, conclude that the facts indicate an 

impending accident or disaster, threatening to kill or to 

cause serious physical harm, likely to occur at any moment, 

but not necessarily immediately? The uncertainty must be of 

a nature that would induce a reasonable man to estimate that, 

221 
if normal operations designed to extract coal in the disputed 

area proceeded, it is at least just as probable as not that 

the feared accident or disaster would occur before elimination 

of the danger. 

Freeman Coal Mining Corporation, 2 IBMA 197, 212 (1973), aff'd sub nom., 

Freeman Coal Mining Company v. Interior Board of Mine Operation"S'"Ap])eais, 

504 F.2d 741, 745 (7th Cir. 1974). See also Old Ben Coal Corporation v. 

Interior Board of Mine Operations Appeals, 523 F.2d 25, 32 (7th Cir. 1975). 

The test of imminence is objective, and "the inspector's subjective opinion 

need not be taken at face value." 2 IBMA at 212. However, the applicant in 

a proceeding such as this one bears the burden of showing by a preponderance 

of the evidence that imminent danger did not exist. Lucas Coal Company, 

1 IBMA 138, 141-42 (1972); Carbon Fuel Company, 2 IBMA 42 (1973). In this 

case, I believe White Pine has sustained this burden. 

The company showed that although roof bolt removal is an intrinsically 

dangerous process, the procedures which it adopted and carried out did not 

present an imminent danger either on the date of issuance of the initial 

withdrawal order or on the dates when the first and second modifications were 

issued. These procedures included dangering off all entrances to the test 

area with large, conspicuous signs that read, "Restricted Area - Authorized 

Personnel Only." The testimony was that the signs were larger than the 

"Keep Out" signs that MSHA added after the imminent danger order was issued. 

The test area selected by the operator had a thick sandstone top. A sandstone top is more stable than a slate top. The men selected to remove the 

bolts were experienced and highly trained foremen. They appeared to be 

knowledgeable in safety techniques and were extremely cautious in removing 

the bolts. They proceeded in a retreat manner, while visually inspecting 

the area, sounding the roof, and using warning lights and dial gauges. They 

had the benefit of maps which indicated that the southern part of the area 

had no significant faults, although the northern part had a large fault. 

White Pine established 19 convergence points in the test area, including one 

at each intersection. Convergence readings were regularly taken to determine 

if there was any downward movement of the roof. The miners used a roof bolting machine which had a 10- to 12-foot long boom, and a three-foot-~quare 

metal canopy. One miner was protected by the canopy; the other miner stood 

at the rear of the machine, under supported roof. Warning lights and dial 

gauges were placed in front and in back of the machine. The men regularly 

observed these gauges. 

MSHA entered the picture when representatives of the company visited the 

office of Inspector Carlson on February 7, 1980. They briefed him about the 

test even though they were not obligated to obtain MSHA's permission. 

Mr. Carlson did not object to the test, although he had some doubts about the 

reaction of the miners to the test. When the Union heard about the test, it 

complained to MSHA. MSHA investigated the complaint, as it is required to do. 

MSHA then became concerned about the test and Inspector Haataja issued the 

withdrawal order. The order did not curtail the test, but superimposed MSHA's 

222 
warning signs over the signs of the operator. There was no ba~is for issuing 

this order. The testimony of Inspector Haataja does not support the contention that an imminent danger existed at the time. 

The first modification was issued after the February 21 roof fall 

described in the testimony. The evidence was that this modification was not 

issued until February 22, the day after the fall, and only after Mr. Haataja 

conferred with his supervisor, Mr. Carlson. I do not believe Mr. Haataja considered this situation to be an imminent danger on his own. If he had, he 

would have modified the order immediately after the fall. Apparently, he considered this a debatable matter. In fact, one of the foremen, Mr. Dorvinen, 

testified that Mr. Haataja did not indicate after the fall that he was going 

to modify the order, and that the inspector did not comment one way or the 

other. There was no additional justification given for the issuance of the 

second modification. 

Admittedly, the February 21 roof fall was substantial. However, the evidence was that the company had anticipated it from visual observations and 

soundings. They knew that there was a fault in the area. The precautions 

that White Pine took at that time were reasonable to protect the safety of 

the men involved. Therefore, I hold that the order and its modifications 

were improperly issued. 

·aRDER 

Withdrawal Order No. 298441, dated February 19, 1980, and its modifications of February 22 and 25, 1980, are VACATED. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge 

Ronald E. Greenlee, Attorney for White Pine Copper Division, Copper 

Range Company, Peninsula Bank Building, Ishpeming, MI 49849 

(Certified Mail) 

Gerald A. Hudson, Attorney, Office of the Solicitor, U.S. Department 

of Labor, 231 West Lafayette Street, Room 657, Detroit MI 48226 

(Certified Mail) 

John Cestkowski, President, Local Union 5024, U.S.W.A., Box 101, 

Watersmeet, MI 49969 (Certified Mail) 

Harry Tuggle, Assistant Safety Director, U.S.W.A., #5 Gateway Center, 

Pittsburgh, PA 15222 (Certified Mail) 

Ernest Ronn, District 33 Co-ordinator of Safety, 706 Chippewa Square, 

Marquette, MI 49855 (Certified Mail) 

Sylvia Guisfredi, Staff Representative, District 33, 80 Elm Street, 

White Pine, MI 49971 (Certified Mail) 

223 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ITMANN COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD~INISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

ITMANN COAL COMPANY, 

Karl T. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

'JAN 1 4 '981 

Contestant 

Respondent 

Petitioner 

Respondent 

Contest of Order 

Docket No. WEVA 80-166-R 

Order No. 657832 

November 29, 1979 

Itmann No. 3 Mine 

Civil Penalty Proceeding 

Docket No. WEVA 80-380 

A.O. No. 46-01576-03051 V 

Itmann No. 3 Mine 

DECISION 

Esq., Pittsburgh, Pennsylvania, for Itmann 

Coal Company; 

Before: 

Stephen Kramer, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for the Secretary of Labor. 

Judge Edwin S. Bernstein 

The hearing in these consolidated proceedings was held on July 24, 1980, 

and November 18, 1980, in Charleston, West Virginia. Both the contest proceeding and the penalty case relate to Order No. 657832, which was issued to 

Itmann on November 29, 1979, for an alleged violation of 30 C.F.R. § 75.301. 

That standard provides in pertinent part: "The minimum quantity of air 

reaching the last open crosscut in any pair or set of developing entries 

and in any pair or set of rooms shall be 9,000 cubic feet a minute, and the 

minimum quantity of air reaching the intake end of a pillar line shall be 

9,000 cubic feet a minute." The order alleged: 

224 
The quantity of air reaching the intake end of Cabin Creek 

6-Panel Longwall (040 Section) was only 7,350 CFM as measured 

with a smoke cloud; anemometer would not turn sufficiently to 

read the air quantity. The evening shift foreman stated that 

he was taking the intake air reading in the crosscut between 

the No. 1 and 2 entries and that he thought that this was 

the same place where the day shift foreman and fireboss was 

[sic] taking their readings. The crosscut was the wrong place 

totake the intake air reading in that it includes belt conveyor ventilation air. All foremen are trained in ventilation controls and practices annually and should have knovm 

this was the wrong location to take intake readings to the 

pillar line. The tail of the longwall was not cutting out 

into the tail or return air entry, and the tail of the longwall line was blocked with coal and rock. Two small holes 

were present leading into the return entry but was [sic] 

blocked with a roof fall. The return entry had at least 

two roof falls present in the entry blocking the flow of air. 

The operator and his agent were aware of the roof falls and 

should have been aware of the coal blocking the return air 

entry. The operator should have exercised more caution in 

determining the quantity of air reaching the intake end of 

the pillar line in Cabin Creek 6-Panel, a section which 

liberates methane when coal is being cut. Air reading and 

other evidence indicates that the air in this section has 

been low for a significant period of time. 

Itmann argued that the existence of less than 9,000 cubic feet a minute 

(CFM) does not automatically constitute a violation of the standard. ):'he company contended that MSHA must also prove that the operator failed to take 

certain remedial steps before a citation or order can be issued. MSHA strongly 

opposed this position, arguing that the regulation is violated anytime air 

volume dips below the required 9,000 CFM. 

Findings of Fact 

At the hearing, the parties stipulated: 

1. Itmann Coal Company is the owner and operator of the Itmann No. 3 

Mine, located in Wyoming County, ~est Virginia. 

2. The Itmann No. 3 Mine is subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977, and I have jurisdiction over these 

proceedings. 

3. The inspector who issued the subject order and termination was a 

duly authorized representative of the Secretary of Labor. 

4. Copies of the subject order and termination are authentic and may be 

admitted into evidence for the purpose of establishing their issuance, but not 

for the truthfulness or relevancy of any statements contained therein. 

22{) 
5. The appropriateness of the penalty, if any, to the size of the operator's business should be determined based upon the fact that in 1979, the 

Itmann No. 3 Mine had a total output of 535,357 tons. Mine No. 3-A produced 

388,481 tons and Mine No. 3-B produced 146,876 tons. The controlling company, 

Itmann Coal Company, had a total output of 1,627,963 tons in 1979. 

6. The history of previous violations should be based upon the fact that 

Itmann had a total of 439 assessed violations in the preceding 24 months, 

during which period there was a total of 856 inspection days. 

7. The alleged violation was abated in a timely fashion, and the operator demonstrated good faith in attaining abatement. 

8. The assessment of civil penalties in these proceedings will not 

affect the operator's ability to continue in business. 

9. In addition to the order which is the subject of these proceedings, 

Order No. 662681, dated March 4, 1979, and Citation No. 255612, dated 

January 30, 1979, were issued under Section 104(d)(l) of the Act. 

ISSUES 

The issues in these proceedings are: 

1. Whether the operator violated 30 C.F.R. § 75.301 as alleged; 

2. Whether the alleged violation was caused by an unwarrantable failure 

of the operator to comply with the standard; 

3. Whether a written copy of the subject order was served on the operator with reasonable promptness; and 

4. If a violation is found, what civil penalty should be assessed taking 

into account the six criteria in Section llO(i) of the Act. In order to make 

a determination on this issue, it is necessary to determine whether and to 

what extent the operator was negligent, and the gravity of the alleged 

violation. 

During the first day of the hearing, James Bowman testified for MSHA, and 

Donny Coleman testified for the operator. Mr. Bowman is the MSHA inspector 

who issued the subject order. He testified that on November 29, 1979, he was 

told by his supervisor at MSHA's Pineville, West Virginia, office that MSHA 

had been notified about a possible ventilation problem at the Itmann No. 3 

Mine. Mr. Bowman was the resident inspector at the mine during the time in 

question. He immediately went to the mine to check on the condition, arriving 

there at around 3:15 or 3:30 p.m. He first examined certain records which 

the operator was required to keep concerning its ventilation program, and 

issued a citation to the operator for failing to examine a particular return 

entry for proper ventilation. He then traveled into the mine, accompanied by 

Itmann's safety engineer, Donny Coleman. The two men went to an area known 

226 
as the Cabin Creek 6 Panel. This was an area where longwall mining was taking place, but there were no miners at the panel when Mr. Bowman arrived. The 

inspector began making a ventilation inspection of the area, which is depicted 

in Operator's Exhibit No. 2 (a copy attached to this decision as an appendix). 

In this area of the mine, retreat mining was taking place. This means that 

coal was being cut in an outby direction with the longwall machine. There was 

a roof fall in the second crosscut outby the longwall face which caused an air 

blockage. In the first crosscut outby the face, there was an accumulation of 

rock-or gob. The latter crosscut was open and a man could walk through the 

area. There was no blockage of air in that first crosscut. Mr. Bowman and 

Mr. Coleman took several air readings at the intake end of the pillar line 

near the head of the longwall machine. This point is marked with a circled 

"X" on Operator's Exhibit No. 2.and is located below and to the left of the 

point marked "Head." The inspector first made an anemometer check in order to 

determine the velocity of air moving through the area. He obtained a reading 

of 55, which he ignored since MSHA's inspection procedures do not allow readings below 100 to be used. Mr. Bowman then took a smoke cloud test, designed 

to measure the volume of air moving through the area. He obtained a reading 

of 7,350 CFM. The regulation requires 9,000 CFM in such situations. Finally, 

Mr. Coleman made an anemometer check and obtained a reading of 55. The two 

men did some. calculations and came up with a figure of 7,448 CFM based upon 

the anemometer readings. Regardless of which figure is used, Itmann's counsel 

agreed that the reading was below the required air volume. 

Mr. Bowman then got into a discussion with Itmann officials concerning 

the proper point at which the readings should be taken. The Itmann officials 

contended that the ventilation reading should have been taken in the first 

crosscut outby the face, where .the gob was. This was because there was a 

split point between that crosscut and the intake end of the pillar line. At 

the split point, some of the air which came through the crosscut was diverted 

towards the pillar line and some of it was diverted in another direction. The 

Itmann officials felt that if the readings had been taken in the crosscut 

before the air flow reached the split point, the readings would have shown 

them to be in compliance with the regulation. 

Mr. Bowman, Mr. Coleman, and another Itmann official, Mr. WooCls, then 

crawled across the longwall face to the tail of the longwall. Mr. Bowman discovered that there was a "panhandle" of uncut coal at the tail which had been 

formed during the mining process by not allowing the longwall shear to cut 

completely across the face. By reducing the distance which the shear traveled 

on each pass across the face, a solid block of coal about 20 feet long had 

been created at the tail. There were two small blast holes in this piece of 

coal. Mr. Bowman felt that this panhandle reduced the amount of air which 

traveled across the face, and that this was one reason why the air at the 

split point near the longwall head was diverted away from the intake end of 

the pillar line. He was told that the panhandle was created so that the 

longwall machine could not cut into an adjacent area where a roof fall had 

occurred. This roof fall can be seen on the left of Exhibit No. 2. 

227 
The inspector returned to the other side of the longwall and took an air 

check immediately·outby the split point, where the rest of the air was 

diverted. He found that between 6,000 and 6,250 CFM were moving through that 

area. 

Mr. Bowman then took a reading at the "total intake" point marked on 

Exhibit No. 2. This reading was approximately 14,200 cubic feet of air per 

minute. Putting these two readings together, Mr. Bowman was convinced that 

a violation existed. He testified: "Through subtraction, you can tell by 

that that you are going to have low air at the intake end of the pillar line, 

and that doesn't even take off where the leakage that you get through the 

other checks and stoppings." 

The inspector stated that he issued the order verbally at 1640 hours on 

November 29, 1979, by informing Mr. Coleman and Mr. Woods of its issuance. 

He stated that it was normally not his procedure to issue orders in wri 

until he reached the surface of the mine. He also stated that the abatement 

of the order was issued at 2130 hours, also verbally. Mr. Bowman could not 

remember whether he issued the written order on that day or on the following 

day. He stated that in situations where he does not have printed order forms 

with him, he ordinarily writes the order on a yellow slip of paper and leaves 

it with the operator. However, he did not believe he followed this procedure 

in this situation. 

The inspector abated the order after the operator used explosives to 

remove the panhandle and leveled the rock in the crosscut immediately outby 

the longwall head. Mr. Bowman then obtained an air reading of approximately 

9,700 CFM. The operator also cut a stall chute, which is a small mining 

entry at the tail end of the longwall perpendicular to the face, which maintained the proper ventilation until the men got past the roof fall at the 

tail end. 

Mr. Bowman testified that in his opinion this was an unwarrantable failure violation for several reasons. First, the operator was required to conduct a preshift examination of the working face and to take an air reading 

at the intake end of the pillar line. Mr. Bowman felt that the day shift 

boss had taken the air reading in the wrong location and wa~ aware of the 

situation at the tail end of the longwall face. Mr. Dickerson later told 

Mr. Bowman that he had made his preshift examination approximately one hour 

before Mr. Bowman arrived at the scene. Second, Mr. Bowman was told by the 

mine foreman, Jim Justice, that there were roof falls in the area which were 

affecting the ventilation to the face. Mr. Bowman also felt that the operator was taking his preshift readings in the wrong area because even after 

the violation was abated, he obtained a reading of approximately 9,700 CFM, 

significantly less than any of the readings which were recorded in the preshif t examiner's report book. 

According to Mr. Bowman, this mine liberates approximately 1,600,000 cubic 

feet of methane in a 24-hour period. This information was obtained from 

laboratory analyses of air samples taken in the mine. He added that when he 

was on the section, he made several methane checks and detected concentrations 

228 
as high as one-half percent. Mr. Bowman felt that the lack of ventilation in 

the area could have contributed to a methane buildup in an area which was 

inaccessible due to the roof falls. This could have led to a "severe explosion," and Mr. Bowman discussed several possib.le ignition sources in the area. 

In addition to this hazard, Mr. Bowman felt that the lack of proper ventilation in the longwall area contributed to excessive concentrations of respirable 

coal dust in the atmosphere. 

On cross-examination, Mr. Bowman re·peated that there were no men working 

in the section when he made his air measurements. He also reiterated that the 

order was issued and abated verbally, but he was still unsure as to exactly 

when he issued the written order. 

Respondent's first witness was Donny Coleman, an Itmann safety official. 

He stated that around 3:00 p.m. on November 29, 1979, Mr. Bowman arrived at 

the mine and informed Mr. Coleman that he wanted to investigate something in 

the mine. Since the miners on the day shift were coming out of the mine at 

that time, it was close to 4:00 p.m. before the men could go down into the 

mine. They proceeded to the Cabin Creek 6 Panel on the longwall section, 

arriving there around 4:15 or 4:20 p.m. 

Mr. Coleman stated that }tr. Bowman took an anemometer reading and a smoke 

cloud reading. On the basis of the smoke cloud reading, he determined that 

there were approximately 7,350 CFM present at the intake end of the pillar 

line. Mr. Bowman also told Mr. Coleman that based upon the anemometer reading 

and certain mathematical calculations, he found approximately 7,448 cubic feet 

of air per minute in the area. Mr. Coleman testified that Ernie Woods, another 

Itmann official, then took two air readings, one at the intake end of the 

pillar line, and the other outby that point ·in the crosscut through which the 

air passes just before it reaches the split point. The points where Mr. Woods 

took his readings are marked 11A" and "B", respectively, on Exhibit No. 2. 

Mr. Coleman did not testify as to the results of the readings ¥hich Mr. Woods 

took. He did state, however, that there was considerable discussion as to 

where the "total air intake" reading should be taken. He disagreed that the 

proper place to take such a reading was the place designated on Exhibit No. 2 

by Mr. Bowman. Mr. Coleman felt that this reading should be taken just before 

the split point where Mr. Woods had taken his 11B" reading. 

Mr. Coleman denied that Mr. Bowman ever told him that a Section 104(d)(2) 

order was being issued. He stated that he had been with Mr. Bowman on several 

previous occasions when the inspector had issued such an order, and that it 

was Mr. Bowman's custom to hang a red tag on the area affected by the order. 

Mr. Coleman stated that this procedure had been followed by Mr. Bowman on 

seven or eight occasions in the one-year period prior to November 29, 1979. 

Mr. Coleman also discussed the "panhandle" which was created by the longwall 

machine. He stated that on each pass of the longwall shear across the face, 

the shear would be stopped a few feet short of the tail end, thus creating a 

stump of coal. The purpose of allowing this panhandle to develop was to keep 

the machine from cutting into the area of the roof fall at the tail end of the 

229 
face where rock could fall in on the machine. Mr. Coleman disagreed with 

Mr. Bowman as to ·the width of the panhandle at the time of the inspection. 

Mr. Coleman contended that the block of coal was only four to six feet wide at 

that time. He stated that the panhandle would later be removed with explosives 

and the area shoveled out. In this manner, proper ventilation to the face 

area would be maintained. 

Mr. Coleman also discussed the fact that the operator was. required by law 

to check the face area every two hours for sufficient air flow and for methane. 

He stated that the day shift foreman would not continue to mine in that area 

if the air readings fell below 9,000 CFM or if the methane content exceeded 

one percent. 

Throughout his testimony, Mr. Coleman maintained that he was never told 

by Mr. Bowman that a Section 104(d)(2) order was being issued. However, he 

did state that after Mr. Bowman took his first air reading showing the air 

flow to be below 9,000 CFM, Mr. Bowman stated: "This could be an order." 

Mr. Coleman denied that Mr. Bowman ever stated that he actually was issuing 

an order. He also denied that a written order was issued to the operator 

that evening. He added that Mr. Bowman was at the mine for approximately 

five hours on the following day, November 30, and still did not issue a 

written order. Finally, around 3:30 p.m. on that day, Mr. Bowman stopped 

by the mine on his way home and issued a written copy of the order in question, as well as two miscellaneous citations. 

Itmann's next witness was Harry Farmer. At the time the order was issued, 

Mr. Farmer was the general superintendent of the Itmann No. 3 Mine. He testified that the order was not issued on the evening of November 29, when 

Mr. Bowman first inspected the Cabin Creek 6 Panel. He said Mr. Bowman 

returned to the mine the following morning for a follow-up inspection of the 

panel. Again, according to Mr. Farmer, no order was issued, although the possibility of an order was discussed by Mr. Bowman and Mr. Farmer. Mr. Farmer 

further testified that Mr. Bowman left the mine to change clothes and returned 

there around 3:00 or 3:30 p.m~ It was at this time that company officials 

first received a copy of the order. 

David Bailey, the superintendent of the Itmann No. 3 Mine, testified that 

Inspector Bowman arrived at the mine at 2:00 or 2:30 p.m. on November 29, 

1979, and told company officials that he wanted to go into the mine. Donny 

Coleman accompanied the inspector. By way of telephone, Mr. Bailey later 

learned that Mr. Bowman was checking on a possible ventilation problem at the 

Cabin Creek 6 Panel. However, he was not informed of the issuance of any 

unwarrantable failure order, and none of the procedures which the company 

established in such situations were put into effect. Mr. Bailey testified 

that although no verbal or written order was issued that night, the men did 

discuss the possibility of an order for an unrelated violation near the longwall panel. It was not until around 3:00 p.m. on November 30 that Mr. Bailey 

learned that an order was issued relating to the ventilation situation at the 

panel. At that time, Mr. Bowman came to the mine in his street clothes with 

a written copy of the order. 

230 
Mr. Bailey further testified that he was informed of a low air volume 

reading of approximately 7,200 CFM in the area of the Cabin Creek 6 Panel. He 

stated that the foreman of the day shift, which came out of the mine shortly 

before Inspector Bowman went in, had shot the panhandle at the tail end of 

the longwall. This was after the day shift had completed its required 

ventilation checks. Mr. Bailey felt that even if the ventilation dropped to 

7,200 CFM, the company was not in violation of the standard because no coal 

was being mined at that time. He added that normal ventilation was restored 

when the next shift cleaned up the coal that accumulated when the panhandle 

was shot. 

Mr. Bailey also read several excerpts f~om company records which indicated that the ventilation in this section of the mine around the time in 

question was never low, and that there was no evidence of a methane problem. 

Based on this data, he concluded that there was no basis for the inspector's 

allegation that there were low air readings in the section for any period of 

time, or that there was a methane problem in the section. He also stated 

that the proper place to take an air reading in this section was in the first 

crosscut outby the longwall face (marked "B" on Exhibit No. 2). 

Jerry Dickerson testified that he was the shift foreman on the 

November 29, 1979, day shift. He stated that around 2:30 p.m. that afternoon, he recorded an air reading of 12,600 CFM at the intake end of the longwall. This reading was taken in preparation for shooting the panhandle which 

had formed at the longwall tail. He shot the block of coal around 3:20 p.m., 

and then crawled approximately 500 feet back across the face to the longwall 

head. He stated that he was not required by law to take any more air readings. 

Since it was near the end of the shift, he told Ernie Woods, the shift foreman 

on the evening shift, to clean up the coal which Mr. Dickerson had shot. 

Mr. Dickerson also testified that the proper place to take a "total 

intake air reading" in this type of section was the point marked "B" on 

Exhibit No. 2, and the proper place to take an intake reading for purposes 

of 30 C.F.R. § 75.303 was the point marked "A" on this exhibit. He added 

that he got the 12,600 CFM reading at point "A." 

Asked if he knew or should have known that the air was inadequate when 

he left the mine, Mr. Dickerson replied: "There is no way that I could tell 

the difference" in the air flow. 

Itmann's final witness was Ernie Woods, who was the section foreman on 

the longwall evening shift on November 29, 1979. Before going into the section, he was contacted by Mr. Dickerson, who told him about the need to clean 

up the coal at the tail of the longwall. He stated that he arrived at the 

section around 4:45 p.m. on that afternoon and found Inspector Bowman and 

Mr. Coleman were already there. Mr. Woods wa~ informed by Mr. Bowman that 

there was insufficient air on the section and Mr. Woods began to take 

anemometer readings. He got a reading of 6,800 CFM and told his men to check 

the ventilation curtains to make sure they were in place. He then crawled to 

the tail end of the longwall with Mr. Bowman and discovered the loose coal 

231 
which Mr. Dickerson had shot on the previous shift. After approximately an 

hour to an hour and a half of shooting and shoveling the coal at the tail, 

Mr. Woods was able to reestablish a sufficient air flow. This was at around 

6:45 or 7:00 p.m. 

Mr. Woods stated that Mr. Bowman did not tell him about the issuance of 

an unwarrantable failure order and that he did not hear Mr. Bowman tell anyone 

else in the immediate area or within hearing range about such an order. 

During the period when he was cleaning up the coal, the face conveyor of the 

longwall was operating. Mr. Woods stated that Mr. Bowman would not have 

allowed the men to run this electrical equipment if they were shut down for 

an unwarrantable failure order. On cross-examination, however, he admitted 

that MSHA inspectors allowed the operator to run conveyors during the abat~­

ment of accumulation violations so that accumulations could be removed. 

Mr. Woods agreed with Mr. Dickerson that the place to take a "total intake" 

reading was the point marked "B" on Exhibit No. 2, and the "intake on the 

head" point was marked "A." 

Inspector Bowman was recalled as a rebuttal witness for MSHA. He disagreed with the testimony of Itmann's witnesses concerning the effect which 

the shot fired by Mr. Dickerson had on the ventilation. Mr. Bowman believed 

that such a shot would increase rather than decrease the amount of air flowing across the face, since it would spread the material around and open up 

the area. 

with respect to the actual issuance of the withdrawal order, Mr. Bowman 

stated that he issued it verbally on the section and that he was "reasonably 

sure" that he issued it in writing that night. He noted that Citation 

No. 657833, which would be the. next citation in the inspector's book of 

consecutively numbered forms, was issued on the evening of November 29. He 

also identified Citation No. 657834, saying it was issued around 1:20 p.m. 

on November 30, 1979. 

Donny Coleman was recalled as a rebuttal witness for Itmann. He 

reiterated his earlier testimony that he was not given a copy of the written 

order until approximately 3:30 p.m. on November 30. However, he also testified that Citation Nos. 675833 and 657834 were served to him at the same 

time. 

Fact of Violation 

I find that Itmann violated 30 C.F.R. § 75.301 as alleged. The company 

did not challenge the inspector's finding that the flow of air at the point 

marked 11A" on Exhibit No. 2 was less than the 9,000 CFM required by the regulation. I also find that this was the proper to determine the "quantity 

of air reaching the intake end off' [the] pillar line" within the meaning of the 

standard. 

Itmann argued that this finding alone does not automatically mean that 

the company violated Section 75.301. At the hearing, Itmann cited "the spirit 

23 ') .., ,..,, 
of the law that runs through the Section 75.300's, which is the subpart D of 

the regulations dealing with the ventilation * * *·" Counsel for Itmann 

attempted to draw a comparison between Section 75.301 and Section 75.308, 

dealing with methane accumulations in face areas. Specifically, he argued 

that a violation of Section 75.308 exists only "if a mine operator, upon 

becoming aware of the presence of 1.0 volume percent or more of methane 

at a working place," fails to take a series of remedial actions. These 

include making immediate changes or adjustments in the ventilation of the 

mine, cutting off electrical equipment, stopping all work in the affected 

area, taking precautions to prevent other areas of the mine from becoming 

endangered, and withdrawing miners from areas where the methane content is 

1.5 percent or higher. Counsel argued that the same criteria should be 

applied in determining if a violation of Section 75.301 occurred. 

I have reviewed Itmann's argument on this point and find it is without 

merit. The comparison between Section 75.301 and Section 75.308 does not 

withstand analysis. Section 75.308 reads as follows: 

If at any time the air at any working place, when tested 

at a point not less than 12 inches from the roof, face, or 

rib, contains 1.0 volume per centum or more of methane, 

changes or adjustments shall be made at once in the ventilation in such mine so that such air shall contain less than 

1.0 volume per centum of methane. While such changes or 

adjustments are underway and until they have been achieved, 

power to electric face equipment located in such place shall 

be cut off, no other work shall be permitted in such place, 

and due precautions shall be carried out under the direction 

of the operator or his agent so as not to endanger other areas 

of the mine. If at any time such air contains 1.5 volume per 

centum or more of methane, all persons, except those referred 

to in section 104(d) of the Act, shall be withdrawn from the 

area of the mine endangered thereby to a safe area, and all 

electric power shall be cut off from the endangered area of 

the mine, until the air in such working place shall contain 

less than 1.0 volume per centum of methane. 

In brief, this standard provides on its face that specific remedial actions 

must be taken when methane concentrations reach a certain level. The standard does not say that a vidlation occurs as soon as such levels of methane 

are detected. In sharp contrast, the relevant part of Section 75.301 provides 

that "the minimum quantity of air reaching the intake end of a pillar line 

shall be 9,000 cubic feet a minute." [Emphasis added.] The language of this 

regulation is mandatory, and there are no qualifications on it. Therefore, I 

reject Itmann's argument and find that a violation of Section 75.301 occurred. 

The Unwarrantable Failure Issue 

In Eastern Associated Coal Corp., 3 IBMA 331, 356 (1974), the Interior 

Board of Mine Operations Appeals stated that an unwarrantable failure finding 

233 
must be upheld where, "on the basis of the evidentiary record, a reasonable 

man would conclude that the operator intentionally or knowingly failed to 

comply or demonstrated a reckless disregard for the health or safety of the 

miners." [Emphasis in original; footnotes omitted.] Similarly, in ---"'"--'--"- Coal Company, 7 IBMA 280, 295-96 (1977), the Board held that an inspector 

should make a finding of unwarrantable failure "if he determines that the 

operator involved has failed to abate the conditions or practices constituting such violation, conditions, or practices the operator knew or should 

have known existed or which it failed to abate because of a lack of due 

diligence, or because of indifference or lack of reasonable care." 

In this case, I do not believe MSHA has sustained its burden of showing 

that Itmann 1 s violation of the standard was unwarrantable. I find the air 

blockage which resulted in the ventilation problem was caused by 

Mr. Dickerson's shooting the pa~handle at the end of the day shift. He stated 

that before the shot, he obtained an air reading of 12,600 CFM, but that he 

did not take an air reading after shooting the coal. When Mr. Woods' shift 

came on, the air was down to 6,800 CFM. The men on Mr. Woods' shift immediately went about the task of cleaning up the panhandle area and restoring a 

proper air flow. Based on this sequence· of events, I do not believe the violation of the standard was intentional or knowing or that it demonstrated a 

reckless disregard for the safety or health of the workers. I accept 

Mr. Dickerson's testimony that the reduction in air flow was not noticeable 

·without taking an anemometer reading. I further find that Mr. Woods did not 

have enough time to take his regular preshift reading before being told by 

Inspector Bovm1an of the problem. In short, while a violation of the standard 

occurred, the operator was, at the most, ordinarily negligent. Under these 

circumstances, the unwarrantability finding must be vacated. 

Issuance of the Order 

Section 104(a) of the Act provides that citations must be issued "with 

reasonable promptness." Inspector Bowman stated that he issued the order 

verbally to Mr. Coleman and Mr. Woods at 4:40 p.m. on November 29, 1979. He 

was unable to recall when he issued the written order. Mr. Coleman testified 

that the inspector told him the situation could be an order, but not that it 

was an order. Mr. Woods did not recall any scussion of an order at the 

site. The earliest time when the parties can be said to agree that the 

written order was issued was around 3:00 p.m. the next day, November 30. 

Regardless of what transpired underground on November 29, I believe the 

order was issued with reasonable promptness. The testimony concerning the 

oral issuance of the order is conflicting, but I do not believe that 24 hours 

is an undue period of time to elapse before the issuance of a written order. 

Such orders are carefully scrutinized by operators for the correctness of the 

information contained therein. In my view, Mr. Bowman wanted to be sure the 

order was issued on an appropriate form and that the information in it was 

correct. He undoubtedly realized that a contest proceeding such as this might 

result, and that the order which he issued would be an important document in 

such a proceeding. I also do not believe Congress intended that the "reasonable promptness" standard be construed strictly t MSHA. The last 

234 
sentence of Section 104(a) reads: "The requirement for the issuance of a 

citation with reasonable promptness shall not be a jurisdictional prerequisite 

to the enforcement of any provision of this Act." Therefore, I find that the 

validity of the order is not affected by the method in which it was issued. 

Civil Penalty to be Assessed 

As stated above, Itmann was negligent in allowing the ventilation in the 

relevant area to drop below the required minimum. The gravity of the violation was serious since a methane buildup could have occurred and resulted in 

an explosion. Itmann is a large operator and the assessment of a civil penalty in this matter will not affect its ability to remain in business. The 

parties stipulated that during the 24-month period preceding the issuance of 

this order, there were a total of 856 inspection days during which the company 

had a total of 439 assessed violations. Based upon the criteria in 30 C.F.R. 

§ 100.3(c), I find this to be a good prior history. The violation was abated 

in good faith. 

In light of these considerations, I assess a penalty of $1,000 for this 

violation. 

ORDER 

Order No. 657S32 is AFFIRMED insofar as it alleges a violation of 

30 C.F.R. § 75.301. The order's finding that this violation resulted from 

an unwarrantable failure of the operator to comply with the standard is 

VACATED. Itmann is ORDERED to pay $1,000 in penalties within 30 days of the 

date of this Order. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge. 

Karl T. Skrypak, Esq., Itmann Coal Company, 1800 \Jashington Road, 

Pittsburgh, PA 15241· (Certified Mail) 

Stephen Kramer, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

235 
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.JAN 1 .4 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEST 80-20-M 

Petitioner A/O No. 04-00010-05014 V 

v. 

Crestmore Mine and Mill 

RIVERSIDE CEMENT COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Theresa Kalinski, Esq., Office of the Solicitor, U.S. 

Department of Labor, Los Angeles, California, for Petitioner, 

MSHA; 

Jerry E. Hines, Esq., Gifford-Hill and Company, Dallas, Texas, 

for Respondent, Riverside Cement Company. 

Judge Merlin 

This case is a petition for the assessment of a civil penalty filed by 

the government against Riverside Cement Company. A hearing was held on 

Tuesday, December 16, 1980. 

The alleged violation was of section 57.14-1 of the mandatory standards. 

Section 57.14-1 provides that: "Gears; sprockets; chains; drive, head, tail, 

and take-up pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and 

similar exposed moving machine parts which may be contacted by persons and 

which may cause injury to persons shall be guarded." The citation, which was 

issued on May 9, 1979, provides the following: 

An area approximately 5 foot by 4 foot due to a material 

spillage buildup below conveyor belt No. 104 was used as a 

passageway near an unguarded take-up pulley with the pinch 

point of the bend pulley accessible. The return area (lo~er) 

of the conveyor belt was not covered or guarded to protect 

employees when using this area as a passageway. 

At the hearing, the parties entered into the following stipulations 

(Tr. 23): 

1. The operator is the owner and operator of the subject 

mine. 

• C· 
2. The operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. The administrative law judge has jurisdiction of 

this case. 

4. The inspector who issued the citation was a duly 

authorized representative of the Secretary. 

5. A true and correct copy of the subject citation was 

properly served upon the operator. 

6. Copies of the subject citation and termination of the 

violation in issue are authentic and may be admitted into 

evidence for the purposes of establishing their issuance, but 

not for the purpose of establishing the truthfulness or 

relevancy of any statements therein. 

7. The imposition of a penalty will not affect the 

operator's ability to continue in business. 

8. The alleged violation was abated in good faith. 

9. In overall terms, the operator has a moderate history 

of violations. In addition, the operator has a sizable history regarding this particular standard, but the interpretation of this standard has been a matter of honest dispute 

between the parties, and on some occasions in the past, the 

presiding judge, after hearing, has vacated citations based 

upon the standard, which decisions were not appealed, but 

rather were accepted by MSHA. Finally, there has been no 

citation at the Crestmore Mine and facility of this standard 

for the past year. 

10. The operator's size is large. 

Testimony was given by the inspector who issued the citation and by the 

operator's safety engineer. The inspector testified that on the day of the 

inspection he saw that both the take up and the bend pulleys were unguarded 

while the belt was running (Tr. 5-6). He observed that the bend pulley was 

approximately 4-5 feet above the ground and that to cross underneath this 

pulley a person would have to bend over and could become entangled in the 

pulley (Tr. 7). The inspector believed the area under the conveyor and bend 

pulley had been used as a passageway because he had seen footprints in the 

area (Tr. 6). He stated that he generally cited all unguarded pulleys unless 

employees could not become entangled in the pulley because of height or other 

circumstances. The decision to cite a particular condition is based upon his 

individual judgement and not on any pre-e~isting guidelines (Tr. 14-15). 

The safety engineer who accompanied the inspector testified that the 

area under the belt and pulley is not used as a walkway; the footprints in 

238 
the area were due to the fact that the belt had been replaced less then 

one week prior to the inspection {Tr. 18-19). He stated that approximately 

70 feet from the pulley assembly there was a crossover, and that the belt 

itself ended approximately 80 feet from the pulley assembly {Tr. 21-22). The 

engineer acknowledged that there was no barrier to prevent employees from 

going under the belt at the cited area {Tr. 21). At the close of his testimony, he stated that a recent change in management has led to an improved 

attitude towards safety at the company and to improved relations between MSHA 

and the operator (Tr. 24-25). When recalled to the stand, the inspector 

stated that the walkway over the belt was not in place on the date of the 

inspection and that no other way existed for crossing the belt (Tr. 16). 

I find that a violation of the mandatory standard occurred. 

Both pieces of equipment are clearly covered by the cited standard. 

Take up pulleys are specifically mentioned in the standard and the bend 

pulley is a "similar exposed moving machine part;n Furthermore, the testimony given at the hearing by both the inspector and the operator's witness 

demonstrates that these parts may be contacted by persons and consequently 

may cause injury. As I have stated before, "[i]t is not necessary under this 

mandatory standard to establish precisely the probability of injury or of 

contact by individuals. It is enough that there may be contact and that 

there may be injury." Magma Copper Company, DENV 79-320-PM et al. {August 9, 

1979). 

Although a serious violation occurred, the parties have agreed that the 

interpretation of this particular standard has been a matter of dispute 

between the parties. As already set forth I myself have, in the past, vacated 

citations issued to this operator based upon this standard. Furthermore, at 

the hearing the parties stipulated that there have been no citations based 

upon this standard at this facility in the past year. I believe these factors 

reduce the elements of negligence and fault that might otherwise be present. 

Based upon the foregoing and taking into account all the statutory 

criteria a penalty of $100 is assessed. 

ORDER 

The operator is ORDERED to pay $100 within 30 days from the date of this 

decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Theresa Kalinski, Esq., Office of the Solicitor, U.S. Departm.ent of 

Labor, 300 North Los Angeles Street, Los Angeles, CA 90012 

(Certified Mail) 

Jerry E. Hines, Esq., Gifford-Hill and Company, Inc., 8435 Stemmons 

Freeway, P.O. Box 47127, Dallas, TX 75247 (Certified Mail) 

239 
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. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

'JAN 1 4 198f 

Petitioner 

Civil Penalty Proceeding 

Docket No. WEST 80-21-M 

A/O No. 04-00010-05015 V 

Crestmore Mine and Mill 

RIVERSIDE CEMENT COMPANY, 

Respondent 

DECISION 

Appearances: Theresa Kalinski, Esq., Office of the Solicitor, U.S. Department 

of Labor, Los Angeles, California, for Petitioner, MSHA; 

Jerry E. Hines, Esq., Gifford-Hill and Company, Dallas, Texas, 

for Respondent, Riverside Cement Company. 

Before: Judge Merlin 

This case is a petition for the assessment of a civil penalty filed by 

the Government against Riverside Cement Company. A hearing was held on 

Tuesday, December 16, 1980. 

The alleged violation was of 30 C .F .R. 57 .12-8. Section 57 .12-8 of 

the mandatory standards provides that: 

Power wires and cables shall be insulated adequately 

where they pass into or out of electrical compartments. 

Cables shall enter metal frames of motors, splice boxes, 

and electrical compartments only through proper fittings. 

When insulated wires, other than cables, pass through metal 

frames, the holes shall be substantially bushed with insulated bushings. 

The citation, which was issued on May 14, 1979, set forth the following 

condition: 

The trailing cable of the clinker stacker was not 

connected through proper fittings at the main junction box. 

The trailing cable was entered through the door of the junction box and the door fastened against the cable. The cable 

240 
is energized and east belt was running. 440 v. Should a 

short circuit occur on the stacker electrical system which 

was energized it could be a fatal hazard to three employees 

who were cleaning the trailer walkway or other employees when 

attempting to mount the stacker • 

. At the hearing, the parties entered into the following stipulations 

(Tr. 2, 33): 

(1) The operator is the owner and operator of the subject mine. 

(2) The operator and the mine are subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

(3) The administrative law judge has jurisdiction of this case. 

(4) The inspector who issued the citation was a duly authorized representative of the Secretary. 

(5) A true and correct copy of the subject citation was properly served 

upon the operator. 

(6) Copies of the subject citation and termination of the violation in 

issue are authentic and may be admitted into evidence for the purposes of 

establishing their issuance, but not for the purpose of establishing the 

truthfulness or relevancy of any statements therein. \ 

(7) The imposi~ion of a penalty will not affect the operator's ability 

to continue in business. 

(8) The alleged violation was abated in good faith. 

(9) In overall terms, the operator has a moderate history of violations. 

In addition, the operator has a small history regarding this particular 

standard. 

(10) The operator's size is large. 

Testimony was given by the inspector who issued the citation and by the 

operator's safety engineer. The inspector testified that on the day of the 

inspection he observed the clinker stacker power cable attached inside the 

clinker stacker junction box and that the cable exited the box through the 

box's door (Tr. 10). He stated that this was not the way in which cables 

typically enter junction boxes since such cables normally enter junction 

boxes through proper fittings (Tr. 10). The cable itself was not winding and 

unwinding from a reel, as is usually the case (Tr. 25). Rather, the cable 

was laying on the ground following the stacker, and was tied to the stacker 

by a rope (Tr. 7-9). The inspector's concern was that the movement of the 

stacker could cause the rope to break, creating a situation where the weight 

of the cable would cause the edge or the door of the junction box to cut into 

241 
the cable, creating a shock hazard (Tr. 12). The inspector testified that if 

the cable were cut and the ground and the fuses were not working properly the 

junction box and the stacker itself could become energized (Tr. 12-13). The 

inspector felt that if the cable had entered the junction box through insulated bushings then the likelihood of any damage to the cable would have been 

significantly lessened (Tr. 28). The safety engineer testified that a new 

reel for the cable was scheduled to be installed the next day (Tr. 32). The 

rope used to fasten the cable to the stacker circled the cable several times, 

preventing persons from pulling on the cable, which could break the connections inside the junction box (Tr. 30). He further testified to the type and 

quality of the cable (Tr. 30), and stated that there was both a grounding 

wire for the cable and a circuit breaker for the stacker, so that if a short 

were to occur the power would be cut off, regardless of how the cable was cut 

(Tr. 30-31). 

I find that a violation of the mandatory standard occurred. 

The regulation at issue here, 30 C.F.R. 57.12-8, requires that cables 

enter the metal frames of electrical compartments "only though proper fittings." Based upon the evidence I find that the way this cable entered the 

junction box did not constitute "proper fittings" and that therefore a violation occurred. 

I further find the operator exhibited ordinary negligence because it 

should have known that this cable was not entering the junction box in the 

proper manner. Further, although any potential accident would be serious, 

the likelihood of an accident occurring is somewhat remote because of the 

chain of events that would have to occur before a person could be injured. 

In light of the foregoing and taking into account all the statutory 

criteria a penalty of $150 is assessed. 

ORDER 

The operator is ORDERED to pay 0 within 30 days from the date of this 

decision. 

Assistant Chief Administrative Law Judge 

Distribution: 

Theresa Kalinski, Esq., Office of the Solicitor, U.S. Department of Labor, 

500 North Los Angeles Street, Los Angeles, CA 90012 (Certified Mail) 

Jerry E. Hines, Esq., Gifford-Hill and Company, Inc., 8435 Stemmons 

Freeway, P.O. Box 47127, Dallas, TX 75247 (Certified Mail) 

242 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

·JAN 1 6 1991 

SE~RETARY OF LABOR, Civil Penalty Proceeding 

HINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 79-403-M 

Petitioner A/O No. 41-01643-50005 

v. 

Beneficiation Mine 

LONE STAR STEEL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Richard Collier, Esq., U.S. Department of Labor, Dallas, 

Texas, for Petitioner; 

Donald W. Dowd, Esq., Lone Star Steel Company, Lone Star, 

Texas, for Respondent. 

Judge Stewart 

The above-captioned case is a civil penalty proceeding brought pursuant 

to section 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (hereinafter, the Act). The hearing in this matter was held on 

May 7,-Y-980, in Dallas, Texas. A posthearing brief was filed by Respondent 

on June 30, 1980. Proposed finding of facts and conclusions of law inconsistent with this decision are rejected. 

Inspector }tichael Sanders issued Citation No. 153483 on June 7, 1979, 

pursuant to section 104(a) of the Act. He cited a violation of 30 C.F.R. 

§ 55.9-2 and described the pertinent condition or practice as follows: "The 

hoist brake on the Marian 183 dragline would not "hold" the bucket suspended 

in the air with a normal load of material while loading trucks. The operator 

had to make a complete cycle of drag, hoist and dump without stopping." 

Section 55.9-2 reads as follows: "Mandatory. Equipment defects 

affecting safety shall be corrected before the equipment is used." 

This citation was issued in the course of an inspection conducted by 

Inspector Sanders at Respondent's Lone Star Pits and Plant on June 6 and 

7, 1979. This mine is an open-pit, surface strip operation. 

The specific piece of equipment involved was a Marian 183 dragline. 

This dragline was used primarily to excavate ore and load it into haulage 

243 
trucks. The dragline boom was estimated by the inspector to be 65 feet in 

length. Its bucket had a capacity of 10 yards. Estimates of the weight of 

a fully loaded bucket ranged from 15 to 25 tons. 

In June of 1979, Respondent hauled ore both with its own trucks and 

with those of contractors. When empty, each of Respondent's trucks weighed 

70 tons. The cab on each of Respondent's trucks was protected from above by 

a canopy. This canopy was designed to withstand heavy impact and was constructed of the same material as the truck bed - that is, "M-1 steel" with a 

tensile strength of 100,000 pounds per square inch. The canopies also provided roll-over protection up to two times the weight of the truck. Elliot 

Dressner, Respondent's assistant superintendent in charge of mining, and 

John Irwin, Respondent's manager of safety at the times pertinent herein, 

'test~fied that they believed these canopies could withstand the impact of a 

falling, fully loaded bucket. Operators of Respondent's trucks were permitted to remain in their cabs while ore was being loaded into their trucks. 

Because the trucks owned by contractors were not equipped with canopies or 

other such overhead protection, operators of those trucks were required to 

stand away from their vehicles during loading. 

The dragline was in operation loading ore into a haulage truck when 

observed by the inspector. He estimated that the dragline mined and loaded 

25 to 30 truckloads of ore per day. 

The loading sequence was as follows: The bucket was lowered to the 

ground, dragged along the ground to collect material, hoisted, swung over the 

bed of the haulage truck and released. The truck was positioned so that the 

bucket swung over the back corner of the bed. Normally, the bucket was 

released over the center of the truck bed. The operators of the dragline 

were instructed not to allow the bucket to be suspended over a haulage truck's 

cab. 

During his examination of the dragline, the inspector asked the dragline 

operator to hoist the bucket and hold it in midair. The operator responded 

that the hoist brake would not hold the bucket. The inspector then had the 

operator of the dragline test the hoist brake four times - once with a fully 

loaded bucket, once with a bucket halfway loaded, once with a small amount 

and, finally, once with an empty bucket. On each occasion, the hoist brake 

failed to hold and the bucket fell to the ground. 

The hoist brake was a manually activated external or check brake. When 

such a brake is applied, it contacts and "squeezes" the hoist drum. The diameter of the drum was 70 inches. Its width was approximately 11-3/4 inches. 

At the time the citation was issued, the brake lining was approximately 

2 inches off center of the drum. The inspector believed that the brake failure might have been due to this slight misalignment. The testimony of 

Respondent's witnesses established that the misalignment was not the cause of 

the brake failure, but rather that it had been caused by a faulty brake 

adjustment. The brake had been adjusted too tightly, resulting initially in 

constant drag and overheating. Operation of the brake in this condition 
caused the formation of a glaze. Even if the hoist brake is properly 

adjusted, the presence of such glaze will cause the brake to slip. To abate 

the condition, vinegar was applied to cut the glaze and the brake was 

readjusted. 

A foreman was assigned to supervise the operation of the dragline. 

Although his main job was to stay with the dragline and he was on the machine 

several times a day, he was not constantly at the dragline or at the dragline 

site. His duties entailed "trips back to the shopn and "other chores 

involving a water truck on the haul road and things like that." He remained 

in radio communication at all times. 

Roland Adams, Respondent's relief foreman during the pertinent times, 

had operated the dragline on occasion during the two days immediately prior 

to June 7, 1979. The brake was functioning properly at these times. 

Safety procedures in effect at the time required that the operator of 

the dragline "check brake adjustment before attempting to load", recognizing 

that improperly adjusted brakes presented a "potential" accident or hazard. 

John Irwin testified that the operator's running of the dragline without the 

brake was in contravention of a job safety rule. Elliot Dressner testified 

that the improper adjustment had not been reported to mine management and 

that the failure to do so was contrary to the training and instruction given 

a dragline operator. 

The inspector testified that he observed two conditions during this 

inspection which could have contributed to the hazard presented by the inoperative hoist brake. A drag bucket has a series of chains of large size hooked 

up in harness fashion. These chains are secured to the bucket with pins of 

approximately 1-1/2 to 2 inches in diameter. One of these pins was worn 

three-fourths of the way through; the second was worn halfway through. He 

also testified that he observed a separation of 1 inch in one of the links of 

these chains. 

Violation of 30 C.F.R. § 55.9-2 

The record clearly establishes that the violation of 30 C.F.R. § 55.9-2 

occurred as alleged. The hoist brake on the Marian 183 dragline was defective 

on June 7, 1979, when observed by Inspector Sanders. A glaze had formed on 

the brake lining, and, as a result, the brake could not hold the bucket 

suspended in midair or halt the bucket's downward descent. This brake failure constituted an equipment defect within the meaning of the mandatory 

standard. 

Respondent's argument that the equipment was not defective but only 

improperly adjusted is rejected. The record establishes that the brake had 

been adjusted.too tightly. As a consequence, the brake overheated and caused 

a glaze to form on the lining. The glaze was the immediate cause of the 

failure of the brake to hold and constitutes a defect within the meaning of 

the standard. Respondent's identification of the cause of the defect in no 

way changes the fact that such defect existed. 

245 
Respondent also argued that the failure of the inspector, and hence of 

the Petitioner, to correctly identify the cause of the brake defect amounted 

to a failure to prove that an equipment defect affecting safety existed. 

This argument is also rejected. Again, it was conclusively established on 

the record that the hoist brake would not function properly and, thus, that 

it was defective. The inspector's erroneous conclusion as to the cause of 

the defect does not undermine the correctness of his conclusion that the 

brake was defective. The absence of an operative hoist brake affected 

safety. Respondent recognized that "improperly adjusted brakes" presented a 

hazard. Certainly, a completely inoperative brake would present an even 

greater hazard. 

The procedures in effect and equipment used minimized the risk of injury 

if an accident were to occur in the course of normal operations. Typically, 

the bucket was swung over the rear corners of the truck bed, not the cab. 

Drivers of contractors' trucks were required to step away from the vehicle 

during loading. Drivers of Respondent's trucks were permitted to remain in 

the cab of their vehicles because of the protection afforded by a canopy 

which extended over the cab. While these procedures and protective canopies 

lessened the p~obability that the defective hoist brake would lead to injury 

in the course of normal operations, they did not eliminate the hazard. 

Although.it may not have been absolutely necessary to use the brake during 

the normal loading sequence, there was still the possibility of situations in 

which the use of the brake would become necessary. For instance, employee or 

contractor inadvertence or the existence of a related mechanical defect might 

make necessary an immediate interruption of normal loading operations, 

including suspension of the bucket. The mitigating factors reflect on the 

gravity of the equipment defect. The gravity of the violation, the degree 

to which safety was actually affected, is specifically at issue in the determination of the appropriate civil penalty. 

Respondent advanced two additional invalid arguments in support of its 

contention that the citation should be vacated. In the first of these arguments, Respondent contended that Petitioner must prove a compliance with 

30 C.F.R. § 55.9-1 before it could prove the occurrence of a violation of 

30 C.F.R. § 55.9-2. Section 55.9-1 reads as follows: 

Mandatory. Self-propelled equipment that is to be used 

during a shift shall be inspected by the equipment operator 

before being placed in operation. Equipment defects affecting 

safety shall be reported to and recorded by the mine operator. 

The records shall be maintained at the mine or nearest mine 

office for at least 6 months from the date the defects are 

recorded. Such records shall be made available for inspection by the Secretary of Labor or his duly authorized 

representative. 

Respondent submitted "that management is under no duty to correct an equipment 

defect under 55.9-2 unless it has been made known to management under 55.9-1." 

Respondent also asserted that the citation should be dismissed because it was 

246 
the result of isolated misconduct on the part of an employee. This argument, 

which Respondent styled the "isolated employee misconduct defense," was 

comprised of three elements: 

(1) An isolated, brief violation of a standard by an employee; 

(2) Misconduct was unknown to the employer; 

(3) Misconduct was contrary to both employer instructions and to a 

company work rule that had been uniformly enforced. 

The gist of Respondent's assertions is that it should not be held liable for 

the violation of 55.9-2 because it was without fault. 

Section l.lO(a) of the Act reads, in partinent part, that "[t]he operator 

of a coal or other mine in which a violation occurs of a mandatory health or 

safety standard or who violates any other provision of the Act, shall be 

assessed a civil penalty * * *·" The language of section llO(a) is clear. 

The imposition of liability upon Respondent for a violation need not be 

premised on the fault of Respondent or its knowledge, constructive or actual, 

of the condition or practice constituting such violation. 

Respondent asserted that 30 C.F.R. § 55.9-2 failed to pass constitutional muster on two closely related grounds. First, the standard was "violative of the Fifth Amendment of the United States Constitution because it is 

so facially vague and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application." Secondly, it 

was asserted that the regulation suffered from "vagueness as applied." That 

is, the standard "in its application to Respondent under the circumstances of 

this case was violative of the Fifth Amendment to the United States Constitution because a reasonably prudent man familiar with the circumstances of the 

industry would not know that the cited standard was designed to guard against 

the condition cited." These arguments are without merit. 

Section 55.9-2 was intended to eliminate a wide range of hazards and was 

drafted with as much exactitude as possible. Though general in its w9rding 

and scope, it prohibits only conditions or practices which are unacceptable 

in light of common understanding and experience of those working in the 

industry. It is set out in terms with which the ordinary person in the 

industry exercising common sense was able to understand and comply. 

Respondent's argument that the mandatory standard suffered from "vagueness as applied" is also without merit. An inoperative hoist brake is defective equipment within the meaning of the regulation. Certainly, a reasonable 

man in the mining industry would have corrected the hoist brake before using 

the dragline. Moreover, Respondent recognized the necessity of maintaining 

the brake in working order. Under company work rules, it was the dragline 

operator's responsibility to inspect the brake prior to use. As Respondent 

noted in its posthearing brief, "specific safety rules of the company promulgated under the overall safety program of the company" required that the 
dragline operator report the condition to management and discontinue use of 

the hoist. Respondent specifically listed improperly adjusted brakes as a 

potential hazard in its job safety procedure. Respondent clearly recognized 

that the condition was an equipment defect affecting safety. 

Statutory Criteria 

Section llO(i) of the Act requires that the following criteria be considered in the assessment of a civil penalty: 

[t]he operator's history of previous violations, the 

appropriateness of such penalty to the size 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. 

The parties offered stipulations regarding each of these criteria except for 

Respondent's negligence and the gravity of the violation. 

Negligence 

It was not established that Respondent knew or should have known of the 

condition. Roland Adams, Respondent's relief foreman, had operated the dragline on the 2 days prior to the issuance of the citation and found that the 

brakes were in good working order. It is probable that Adams was on the 

dragline at the beginning of the shift during which the citation was issued. 

However, the point in time at which the brake became inoperative was not 

established. Moreover, it was not established that the lack of an operative 

hoist brake would have been observable by management during a normal loading 

sequence. The inference cannot be drawn that Adams, or any other member of 

mine management, knew or should have known of the condition. The operator of 

the dragline had actual knowledge that the brake was defective. However, it 

was not established that he was a member of mine management. His knowledge 

cannot be imputed to Respondent. 

The record also showed that Respondent had a safety program, a part of 

which required that the dragline operator inspect the hoist brake and adjust 

it if necessary. 

In view of the above, it is found that Respondent was not negligent in 

its failur~ to comply with the requirements of the standard. 

Gravity 

The absence of an operative hoist brake presented a serious safety hazard. 

It was probable that the need for use of the hoist brake would arise and that, 

because of the inability of the brake to hold the bucket suspended, that an 

accident would occur. It is evident that normal operations could continue 

248 
without the need to resort to use of the brake. Nevertheless, the possibility 

existed that the inadvertence of an employee or contractor or the existence 

of a related mechanical defect might make necessary the immediate interruption of normal operations, including suspension of the bucket. The possibility of human inadvertence cannot be considered to have been remote. 

Inspector Sanders estimated that the loading of haulage trucks took place 

from 25 to 30 times per day. Moreover, dragline operations were not supervised constantly. The foreman who supervised the dragline made several trips 

a day "back into the shop" and was responsible for "other chores involving a 

water truck on the haul road and things like that," remaining only in radio 

contact. An employee or contractor might easily contravene company safety 

rules, just as the operator of the dragline did in this instance, and place 

himself in jeopardy. 

With regard to the possibility that a mechanical defect might give rise 

to a situation in which the use of the hoist brake would be necessary, the 

inspector actually observed defects in the chain which secured the bucket to 

the dragline. The inspector believed that it could reasonably be expected 

that the chain or pin would break completely because of these defects and, 

if such a break occurred, use of the hoist brake would very likely be 

necessary. 

Respondent's eyidence, at best, would support a finding that the risk of 

serious injury was low if an accident were to occur in the course of normal 

operations as long as established procedures were being followed. Individuals would either be within a cab protected by a canopy or standing outside 

the immediate area. John Irwin and Elliot Dressner thought that the protective canopies could withstand the impact of a fully loaded bucket. Although 

this testimony was unrebutted, it does not rule out the possibility of a 

serious accident. Nevertheless, in view of the high tensile strength of the 

steel from which they were constructed, it is accepted for the purposes of 

this decision that the canopies could withstand the impact of a fully loaded 

bucket. The canopies would, therefore, provide the operators of Respondent's 

vehicles with a measure of protection in the course of normal operations. 

A further measure of protection was provided by the standard operating 

procedure. The bucket was hoisted over the backend of the haulage vehicles. 

If proper procedure were followed, the bucket would at no time be suspended 

over the cab of a vehicle. 

However, just as an instance of employee or contractor inadvertence or 

mechanical defect might cause an accident, these occurrences could give rise 

to a situation in which an individual subjected himself to the risk of serious 

injury or fatality. As noted above, the possibility of human inadvertence 

was not remote and mechanical defects were observed in the bucket and chains 

by the inspector. It is found, therefore, that it was probable that an accident and injury would occur. 

If injury were to occur, in view of the weight of the bucket, such injury 

would be expected to be serious or fatal. 

'' ! 

249 
STIPULATIONS 

At the hearing, the parties stipulated the following: 

Jurisdiction exists and Respondent is engaged in business 

affecting interstate commerce. Respondent has no history of 

violations under the particular standard cited. The size of 

Respondent for the year 1978 for the entire company was 

284,804 man-hours. For the mine involved, the size was 

141,104 man-hours. This makes Respondent a medium-size 

employer. The assessment of a penalty herein will not affect 

Respondent's ability to continue in business. 

These stipulations were accepted at the hearing by the Administrative 

Law Judge and are incorporated as part of the Findings of Fact herein. 

ASSESSMENT 

In consideration of the findings of fact and conclusions of law rendered 

above, it is found that an assessment of $100 is appropriate for the violation of section 55.9-2 under the criteria contained within section 110 of the 

Act. 

ORDER 

It is ORDERED that Respondent pay the sum of $100 within 30 days of the 

date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Richard L. Collier, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Donald w. Dowd, Esq., Lone Star Steel Company, Highway 259 South, 

Lone Star, TX 75668 (Certified Mail) 

250 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1 6 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 80-86-M 

Petitioner A/O No. 34-00598-05001 

v. 

#30 Quarry & Plant 

MIDWEST MINERALS, INC., 

Appearances: 

Before: 

Respondent 

DECISION 

Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department 

of Labor, Dallas, Texas for Petitioner; 

Richard Atkinson, Midwest Minerals, Inc., Pittsburgh, Kansas, 

for Respondent. 

Judge Stewart 

This is a proce~ding filed by the Secretary of Labor, Mine Safety and 

Health Administration (MSHA), under section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 U. S.C. § 820(a) (hereinafter the Act), 1/ to 

assess civil penalties against Midwest Minerals, Inc., (hereinafter Midwest). 

A hearing was held at Miami, Oklahoma, on November 3, 1980. Petitioner called 

one witness. Respondent called two witnesses. At the outset of the hearing, 

the parties entered into the following stipulations on the record: 

'];./ Sections llO(i) of the Act provides: 

''(i) The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, 

wehther 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. In proposing civil penalties under this Act, 

the Secretary may rely upon a summary review of the information available to 

him and shall not be required to make findings of fact concerning the above 

factors." 

251 
The parties stipulate and agree that the number of man 

hours for the company, Midwest Minerals, is 141,401. The manhours for the particular mine in question were 9,029. We have 

stipulated and agree that these figures represent a smallsized mine. There is no history of violations for the 

particular mine in question for the 24 months preceding the 

citation. The proposed penalty would not have any effect on 

the operator's ability to continue in business. 

The decision rendered orally from the bench at the hearing is reduced 

to writing below as required by the Rules of Procedure of the Federal Mine 

Safety and Health Review Commission, 30 C.F.R. § 2700.65. 

The stipulations being that the man hours for the 

company are 141,101, and the man hours for the particular 

mine are 9,029 and that these figures represent a smallsized mine, I so find that the size of the operator is 

small. 

There being no history of prior violations, I find that 

the history of Respondent good. 

In view of the Respondent's concession that the proposed 

penalty would have no effect on the operator's ability to 

continue in business, I therefore find that the penalty in 

this case will have no effect on the operator's ability to 

continue in business. 

Citation No. 167323 was issued on August 7, 1979, by MSHA 

inspector Smith. The condition or practice noted on this 

citation states, "The stacker tail pulley has no guard. Two 

employees work near the area daily." The citation cited a 

violation of 30 CFR 56.14-1, which reads as follows: Mandatory. Gears, sprockets, chains, drive, head, tail and take-up 

pulleys, flywheels, couplings, shafts, sawblades, fan inlets 

and similar exposed moving machine parts which may be contacted by persons and which may cause injury to persons shafl 

be guarded." 

The evidence has shown that the equipment in question is 

a tail pulley; one of the specific types of equipment that is 

required to have a guard by the mandatory standard. The evidence has also established that the tail pulley may be contacted by persons and that the contact may cause an injury to 

persons. Respondent has introduced five photographs, marked 

Exhibits 1 through 5, showing in general the condition of a 

piece of equipment. The photographs were taken approximately 

one year ter the citation •• Exhibits 1 through 3 show that 

the drive pulley is guarded but that there is no guard at the 

tail pulley. Inspector Smith has acknowled~ed that the drive 

252 
pulley guard was in place at the time of the inspections, but 

he testified that there was no guard around the tail pulley. 

Respondent's witness has testified that these photographs 

shown in Exhibits 1, 2 and 3, were taken at a time when the 

tail pulley guard on the inby side was tempoparily removed 

for the purpose of taking the photographs. It was then 

replaced on the tail pulley. Respondent's Exhibit No. 2 

shows a guard in the nature of a piece of belt on the outby 

or far side of the frame of the equipment as the equipment is 

viewed from the direction shown in Exhibit 2. The inspector 

has testified that this guard was not in place at the time he 

issued the citation and there has been no other testimony 

refuting this statement. Therefore, I find that the guards 

were not in place on the tail pulley at the time of the 

inspection as alleged by inspector Smith. The respondent has 

asserted that many inspections had been made by inspectors by 

the Bureau of Mines, by MESA and by MSHA and this condition 

had never be cited previously. Inspector Smith has testified 

that he is unable to venture a statement as to why no citations were previously issued. While this may be material to 

the issue of negligence it is not controlling on the issue as 

to whether or not there was a violation. It has been established that the tail pulley was not guarded on August the 7th, 

1979, that the pulley could be accidentally contacted by 

persons working in the area and that the conditions might 

result in an injury. I therefore find that a violation of 

30 CFR 56.14-1 has been· established. 

The testimony has shown that the pinch point is at the 

bottom of the pulley and that the bottom of the pulley is 

about six inches above the buildup of material. The inspector has testified that a person working or walking in the 

area within two or three feet of the belt itself could very 

easily slip and fall into this pinch point. The Respondent's 

argument that the area is guarded by location has been fully 

considered. While there is some protection from the location, it is still evident that it is possible for a person to 

accidentally be injured by the belt at its pinch point with 

the pulley. The frequency and amount of shoveling that must 

be done in this area has not been established by the testimony. Nevertheless, two persons work in this area and it is 

possible for them to be injured by the unguarded pulley. I 

will accept the statement in closing argument that belt 

dressing is no longer applied and that belts are prevented 

from slipping by a friction type material placed on the 

pulley. Since it has not been established by the testimony 

that belt dressing need be frequently applied, I will find 

that it is improbable that a person would be seriously 

injured or that death would result as ~ result of the 

unguarded pulley. ' 
The testimony of inspector Smith has established that 

the absence of the guard on the tail pulley was open and 

obvious. Respondent has acknowledged and the testimony has 

established that the operator knew that there was no guard at 

this point. The operator was of the opinion that the tail 

pulley was adequately guarded by location and by components 

of the equipment. It has established that the equipment has 

run in this condition for many years and that it has not previously be cited for this violation. Although it has been 

established that an injury could occur, I will give the operator credit for good faith in this respect for not placing a 

guard around the equipment and find that any negligence on 

the part of the operator is slight. 

The Secretary stated for the record that the employer 

exercised extreme good faith and had done everything in its 

power to correct the violation for which it was cited. In 

view of MSHA's concession that the operator exercised good 

faith in abating the citation, I find that the operator did 

exercise good faith in attempting to abate the violation 

after notification of that violation. 

In view of the foregoing findings of fact and conclusions 

of law, I find that an appropriate assessment for this violation in consideration of the six statutory criteria is the 

amount of $30.00. 

ORDER 

The bench decision assessing a penalty of $30 is affirmed. Respondent 

is ordered to pay Petitioner the sum of $30 within 30 days of the date of . 

this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 752U2 

(Certified Mail) 

Richard Atkinson, }lidwest Minerals" Inc., P.O. Box 412, 709 North 

Locust, Pittsburgh, KS 66762 (Certified Mail) 

254 
FEDERAL MINE SAFETY AND HEALTH RE.VIEW COMMISSION 

333W. CClLI l\X AVENUE 

DENVER. COLORADO 80204 

SECRETARY O°F'LABOR, 

MINE SAFETY AND 

HEALTH ADMINISTRATION 

(MSHA), 

v. 

Petitioner, 

KENNECOTT COPPER CORPORATION, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

JAN 1 9 1981 

CIVIL PENALTY PROCEEDING 

DOCKET NO. CENT 79-273-M 

A/O NO. 29-00014-05001 

Mine: Kennecott Concentrator 

~~~~~~~~~~~~~~~~~~~~ 

DECISION 

APPEARANCES: 

Richard L. Collier, ., Office of the Sol itor, United States 

Department of Labor, 555 Griffin Square, Suite 501, Dallas, Texas 

75202 

for the Petitioner, 

J. C. Robinson, Esq., Dickson, Young & Robinson, 212 North Arizona 

Street, Silver City, New Mexico 88061 

for the Respondent. 

Carlson, Judge: 

This proceeding, brought under Section 105 of the Federal Mine Safety 

and Health Review Act of 1977, 30 U.S.C. § 801 et seq. (hereinafter the 

"Act"), arose out of an inspection conducted by one of petitioner's 

representatives on April 23, 1979 at respondent's mine near Hurley, New 

Mexico. As a result of the inspection, one citation was issued charging 

respondent with a violation of 30 C.F.R. 55.15-5 1 . 

On July 29, 1980, counsel submitted stipulations of fact. These 

stipulations are now approved and therefore, for the purposes of this 

litigation, establish the following'as true: 30 C.F.R. 55.15-5 was in fact 

violated; the worker committ the violation was an employee of an 

electrical sub-contractor (Gardner & Zemke) to Burns Construction, the 

primary contractor; under the terms of the contract between respondent and 

Burns, the latter functioned as an independent contractor, performing all 

work, and furnishing and exercising exclusive control over the conduct of 

1/30 C.F.R. 55.15-5 provides: 

Mandatory. Safety belts and lines shall be worn when men work where there 

is a danger of falling; a second person shall tend the lifeline when bins, 

tanks, or other dangerous areas are entered. 

The citation alleges that an employee of Gardner Zemke, an electrical subcontractor, was signaling another worker while standing on the outside edge 

of a building, 50 feet above the ground; the ledge was not bounded by 

handrails, and the employee was not wearing a safety line. 

255 
its own employees. The stipulations further establish the sole issue to be 

decided in this case: Whether respondent, an owner-operator of a mine, may 

be held responsible for violations committed on its premises by employees 

within the exclusive control of an independent contractor. 

The Federal Mine Safety and Health Review Commission answered this 

question affirmatively in Secretary of Labor, Mine Safety and Health 

Administration (MSHA), v. Old Ben Coal Company, 1 FMSHRC 1480 (October 29, 

1979), explaining that 

[w]hen a mine operator engages a contractor 

to perform construction or services at a mine, 

the duty to maintain compliance with the Act 

regarding the contractor's activities can be 

imposed on both the owner and the contractor as 

operators. This reflects a congressional judgment that, insofar as contractor activities are 

concerned, both the owner and the contractor are 

able to assure compliance with the Act. Arguably, 

one operator may be in a better position to prevent 

the violation. However, as we read the statute, this 

issue does not have to be decided since Congress 

permitted the imposition of liability on both 

operators regardless of who might be better able 

to prevent the violation Id. at 1483. 

Several other decisions affirm the Commission's position that the Secretary 

i~ authori~ed under the Act to proceed against either the contractor or the 

ml.ne owner . 

Although the Old Ben decision upheld the Secretary's policy of citing 

the mine owners in--aTl cases involving independent contractor violations, it 

did so on the ground that the policy promoted uniformity. and, to that 

extent, fairness; the Commission indicated, however, that it would strike 

down the policy if it became apparent that the policy was based on 

administrative convenience. Responding to the Commission's admonition, the 

Secretary promulgated new regulations establishing procedures for direct 

enforcement against independent contractors. These regulations became 

effective on July 31, 1980. On Augut 4, 1980, the Connnission established 

2/In National Industrial Sand Association v. Marshall, 601 F2d 689 (3d Cir. 

-1979), the Third Circuit Court of Appeals interpreted the legislative 

history of the Act as indicating that 

Congress was clearly concerned with the perm1ss1ve 

scope of the Secretary's authority, not with the 

mandatory imposition of statutory duties as 

independent contrators. Id. at 703. 

See also Secretary of Labor, Mine Safety and Health Administration (MSHA) 

v. Republic Steel Corporation, (Docket No. IBMA 76-28, April 11, 1979); 

Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Kaiser 

Steel Corporation, (Docket No. DENV 77-13-P, May 17, 1979); Secretary of 

Labor, Mine Safety and Health Administration (MSHA) v. Monterey Coal 

Company, (Docket No. HOPE 78-469, November 13, 1979). 

256 
interim procedures to guide the disposition of cases pending before the 

Commission at the time the new regulations became effective. Secretary of 

Labor, Mine Safety and Health Administration (MSHA) v. Pittsburg and Midway 

Coal M1ning Company, (Docket No. BARB 79-307-P, August 4, 1980). These 

procedures formed the basis for an order issued in the present case on 

September 16, 1980; directing the Secretary to inform this judge within 30 

days whether he would continue to prosecute only the mine owner, or 

prosecute the independent contractor, or both. By November 24, 1980, no 

response had been received; an order to show cause was therefore issued. On 

December 8, 1980, the Secretary notified this judge, by letter, that he 

intended to proceed only against respondent. On December 29, 1980, 

respondent filed a motion to dismiss the proceeding on the ground that the 

Secretary's unduly delayed response indicated that the policy of uniformally 

citi~g mine owners had been based on administrative convenience. 

Respondent's motion to dismiss is denied. The term "administrative 

convenience" as used in the Old Ben decision refers to the pursuit of broad 

policy objectives rather than to the conduct of an individual attorney in 

attending to the details of a particular case. The motion might have been 

more pursuasive had it been filed before the order to show cause was issued 

and promptly answered. 

The merits of the case are controlled by the Old Ben deciston. The 

Pittsburg and Midway decision appears to signal a shift in the Commission's 

position; however, until the Commission clearly establishes a new position, 

the Old Ben decision must be followed. 

That decision, while approving an "interim policy" of c1t1ng mine 

owners for independent contractor violations, expressed concern that the 

policy not serve as a pretext for administrative convenience; it states 

specifically that continuation of the "interim policy" provides evidence 

that it is based upon "improper considerations of admiminstrative 

convenience". For this reason, I would adopt the approach taken by Judge 

Boltz in Secretary of Labor, Mine Safety and Health Administration (MSHA) v. 

Phillips Uranium Corporation, Docket No. CENT 80-208 (October, 1980). The 

proposed penalty of $345.00 will therefore be reduced significantly. 

ORDER 

Accordingly, respondent is ordered to pay a civil penalty of $19.00 

within 30 days of this decision. 

J n A. Carlson 

ministrative Law Judge 
Distribution: 

Richard L. Collier, Esq., Office of the Solicitor, United States Department 

of Labor, 555 Griffin Square Building, Suite 501, Dallas, Texas 75202 

J. C. Robinson, Esq., Dickson, Young, and Robinson, 212 North Arizona 

Street, Silver City, New Mexico 88061 

258 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 1 1981 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), Docket No. LAKE 80-393-M 

Petitioner A/O No. 20-01569-05006-R 

v. 

EDWARD KRAEMER & SONS, INC., 

Respondent 

Docket No. LAKE 80-394-M 

A/O No. 20-01569-05007-R 

Sibley Quarry & Mill 

DECISION APPROVING SETTLEMENT 

AND 

ORDERING PAYMENT OF CIVIL PENALTY 

Appearances: Allen H. Bean, Esq., Office of the Solicitor, U.S. Department 

of Labor, Detroit, Michigan, for Petitioner; 

Willis P. Jones, Jr., Esq., and James A. Climer, Esq., Jones, 

Schell & Schaefer, Toledo, Ohio, for Respondent. 

Before: Judge Cook 

Proposals for penalties were filed pursuant to section llO(a) of the 

Federal ~tine Safety and Health Act of 1977 (Act) in the above-captioned proceedings. Answers were filed and prehearing orders were issued. Subsequent 

thereto, the parties filed a joint motion requesting approval of a settlement 

and for dismissal of the proceedings. 

Information as to the six statutory criteria contained in section 110 of 

the Act has been submitted. This information has provided a full disclosure 

of the nature of the settlement and the basis for the original determination. 

Thus, the parties have complied with the intent of the law that settlement be 

a matter of public record. 

The proposed settlement is identified as follows: 

A. Docket No. LAKE 80-393-M 

Citation No. Date Section of Act Assessment Settlement 

298343 10/16/79 103(a) $200 $100 

259 
B. Docket No. LAKE 80-394-M 

Citation No. Date Section of Act Assessment Settlement 

298201 3/26/80 103(a) $200 

The motion states, in part, as follows: 

The parties submit that the penalty reductions shown 

above are warranted and consistent with the criteria described 

in Section 110 (i) of the Act because of the arguments presented in the letter dated October 20, 1980 from Willis P. 

Jones, Jr., attorney for respondent, a copy of which is 

attached hereto and made a part hereof. The issue of MSHA's 

right to conduct inspections of respondent's Sibley Quarry 

under the Act was resolved in Marshall -vs- Edward Kraemer 

& Sons, Inc., (ED, Mich) Civil Action No. 80-70604, by the 

entry of a Stipulation and Order, copies of which are 

attached hereto and made a part hereof. The parties herein 

state that this Motion does not modify or affect any agreements set forth in the Stipulation and Order entered in Civil 

Action No. 80-70604, United States District Court, Eastern 

District of Michigan, Southern Division. 

$100 

The referenced letter dated October 20, 1980, states, in part, as 

follows: 

As part of the continuing efforts on behalf of both parties to 

amicably settle the Proposal for Civil Penalty in the abovecaptioned cases, I submit to you the following reasons why I 

believe that the Assessments of $200.00 for each citation 

should be reduced to $100.00 per citation for a total of 

$200.00. So that our position is clear, I would point [out] 

to you that any admissions and/or representations, if any, 

which are made in this letter are made in connection with 

settlement negotiations and as such are not to be considered 

as admissible evidence under the Federal Rules of Evidence. 

1. On October 16, 1979 when Respondent allegedly 

denied Petitioner's representative the right 

of entry to Respondent's Sibley Quarry and Mill 

for purposes of conducting an inspection under 

the Act, Respondent's representatives who 

allegedly denied entry were acting upon the 

advice of legal counsel. Counsel's advice in 

this regard was to the effect that attempts by 

MSHA inspectors to conduct inspections on 

Respondent's property without a search warrant 

was a violation of Respondent's rights and protections against warrantless searches embodied 

260 
in the Fourth Amendment to the Federal Constitution. The advice of Respondent's counsel was 

based upon the case of Marshall -vs- Barlows, 

INC., 98 S. Ct. 1816 (1978) wherein the Supreme 

Court found that warrantless inspection [sic] 

by OSHA violated a business operator's Fourth 

Amendment rights. Even though the Barlow's case 

involved OSHA, Respondent submits that because 

of the similarities in the purposes of OSHA and 

MSHA, the Barlow's decision throws the Constitutionality of warrantless search provisions of 

MSHA into considerable doubt. Additionally, as 

of October 5, 1979, the case of Nolichuckey Sand 

Company, Inc. -vs- Marshall, was under advisement before the Sixth Circuit Court of Appeals. 

Nolichuckey involved the question of whether or 

not the. warrantless search provisions of MSHA 

were unconstitutional under the Fourth Amendment. As of October 10, 1979, Respondent had 

no way of knowing that Nolichuckey had been 

decided adversely to the operator on October 5, 

1979. Last, District Courts of Wisconsin and 

New Mexico had held that the warrantless search 

provisions of MSHA were unconstitutional under 

the Fourth Amendment. 

For these reasons, Counsel felt as of October 10, 1979, that 

the issue of the Constitutionality of MSHA's warrantless 

search provisions was open to question. For these reasons, 

counsel for Respondent submits that Respondent's representatives were making a good-faith assertain [sic] of Respondent's 

rights when they requested a search warrant of MSHA inspectors on October 10, 1979. Under the Penalty Assessment provisions of 30 CFR Section 100.03 [sic] Respondent submits that 

it is entitled to a reduction of the proposed penalty due to 

the Respondent's lack of history of previous violations, 

Respondnet's [sic] lack of negligence, the small likelihood of 

Respondent's violation resulting in injury to miners and the 

fact that Respondent's request for a search warrant was in 

good faith. 

2. On or about March 26, 1980, Petitioner alleged 

in (Citation No. 298201], that Respondent violated the (Act] by refusing to allow Respondent's 

employees to wear noise and dust monitoring 

devices. As of March 26, 1980, Respondent was 

once again acting on advice of counsel. 

Counsel's advice to Respondent was based upon 

the case of Plum Creek Lumber Company -vsHut ton, 608 F2d 1283 (Ninth Circuit 1979.) This 

261 
case involved the right of OSHA inspectors to 

hang and/or attach noise and dust monitoring 

devices.to employees of a business being 

inspected. The Court found that OSHA provided no 

authority for the hanging of such noise and dust 

monitors. Again, Counsel for Respondent submits 

that even though OSHA and MSHA are different 

[Acts], their similarities of purpose and the 

fact that MSHA has no provisions explicitly 

requiring operators to allow the hanging of monitoring devices on their employees makes it 

questionable whether or not MSHA inspectors have 

the right to hang such monitoring devices. On 

this basis, Counsel for Respondent submits that 

Respondent was once again making a good-faith 

ascertain [sic] of its rights under the Constitution when it denied MSHA inspectors the right 

to hang dust and noise monitoring devices on its 

employees on March 26, 1980. 

Further, Respondent submits that the attachment 

of the noise and dust monitoring devices constitutes an unnecessary safety hazard to its 

employees. It is a universally accepted rule of 

industrial safety that persons working around or 

near machinery with exposed moving parts should 

aot wear jewelry, chains, loose keys or other 

loose apparel. This principle is set forth by the 

National Safety Council in Accident Prevention 

Manual for Industrial Operations, Seventh Addition [sic] (1974) at pgs. 699, 828, 830, and 1004. 

Respondent submits that accurate noise and dust 

measurements can be taken by means other than 

attaching noise and dust monitoring equipment to 

employees working around moving machinery. See: 

Accident Prevention Manual for Industrial Operations, Supra, at 1247-1248. 

Because of Respondent's good-faith ascertain [sic] 

of its rights and its lack of intent to hinder~­

MSHA in sections [sic], Respondent's Counsel once 

again submits that under the guidelines of 30 CFR 

Section 100.03 [sic], Respondent is entitled to 

few or no penalty points for history of previous 

violations, negligence, gravity of violation and 

good-faith. 

For the foregoing reasons Edward Kraemer & Sons, Inc. feels 

that it is entitled to a reduction of at least $100.00 for 

each citation involved in these proceedings. 

262 
The referenced 

Eastern District of 

of dismissal issued 

September 10, 1980. 

stipulation: 

proceeding in the United States District Court for the 

Michigan, Southern Division, was disposed of by an order 

by United States District Judge John Feikens on 

The proceeding was dismissed pursuant to the following 

It is hereby stipulated and agreed by the parties as 

follows: 

1. The defendant will not deny authorized representatives of the Secretary of Labor entry.to, upon and/or 

through the Sibley Quarry in Trenton, Michigan, for the 

purpose of carrying out inspection or investigation under 

the provisions of the Federal Mine Safety and Health Act 

of 1977, nor interfere with, hinder or delay said authorized representatives in the conduct of such investigation, 

all subject to the qualifications stated in paragraph [sic] 

2 and 3 hereof. --

2(a) During the course of any such inspection or investigation, if the defendant claims it believes that the wearing 

of audio dosimeters, personal dust sampling devices or similar 

devices by any of its employees would represent a risk of 

injury to said employee, the plaintiff will.not require that 

said monitoring device(s) be worn by the employee. 

2(b) Instead, the monitoring device will be placed at a 

location mutually agreed upon in accordance with the following 

criteria: 

(1) the device will be placed so that it is 

located as closely as possible to simulate 

the location of the orfice(s) [sic] of the 

employee's head during the monitoring 

period which represents the most significant access point for the contaminant or 

other hazard being tested for. 

(2) The device will not be placed anywhere 

where it would constitute a potential 

safety hazard or would impede the normal 

movement of workers and/or equipment in 

and about the area. 

(3) The Defendant will not challenge the results 

of monitoring obtained in accordance with 

the criteria stated in paragraph 2(b) hereof 

on the ground that the results do not demonstrate the employee's actual exposure because 

of the location of the monitoring device(s) 

263 
providing agreement as to location as 

described in 2(b) hereinabove. 

2(c) If the parties cannot agree on a mutually agreeable 

location for the placement of the monitoring device(s) the 

Plaintiff may pursue either of the following options: 

(1) The Plaintiff shall have the right to place 

the monitoring device(s) at a location that 

plaintiff believes satisifies the criteria 

of paragraphs 2(b)(l) and (2) and the parties agree that the issue of the compliance 

of the placement of the sampling device(s) 

with the criteria of paragraphs 2(b)(l) and 

(2) shall be the subject for ~eview by the 

Mine Safety and Health Review Commission (or 

its Judge. 

(2) The plaintiff shall have the right to place 

the monitoring device(s) on a Mine Safety 

and Health inspector(s) who shall reasonably 

emulate the movements of the employee(s) to 

be monitored. Defendant will not challenge 

the results of the monitoring so obtained on 

the grounds stated in paragraph 2(b) above as 

long as the inspector(s) wearing the monitoring device(s) reasonably emulate the movements 

of the employee(s) to be monitored. 

3. Defendant reserves the right to refuse to consent to 

a warrantless inspection of the subject mine in the event a 

final decision (a decision is not final until action by any 

court having power of review has been precluded or concluded) 

of the Sixth Circuit Court of Appeals or the U.S. Supreme 

Court upholds the right of the operator of an open quarry to 

insist that inspections provided for under the provisions of 

the Federal Mine Safety and Health Act of 1977 be made only 

pursuant to a duly authorized search -warrant. 

4(a) The execution of this stipulation is without 

prejudice to the right of either party hereto to litigate the 

issues raised in the Second, Third and Fourth Defenses in 

Defendant's Answer.in any other current or any subsequent 

litigation, including litigations between the parties hereto. 

However, it is not the intent of this paragraph to grant the 

parties any additional procedural or substantive rights in 

any such action. 

4(b) The execution of this stipulation is without 

prejudice to the right of either party to litigate in any 

264 
current or subsequent litigation, including litigation 

between the parties, the issue of whether the plaintiff can 

require that audio dosimeters or personal dust sampling 

devices be worn by an employee during the course of an 

inspection under the Act. The execution of this stipulation is not to be construed as an admission on this issue 

in any such litigation by either party hereto. 

S. Pursuant to the provisions of Rule 4l(a)(l)(ii} of 

the Federal Rules of Civil Procedure, this action is hereby 

dismissed, with each party to bear its own court costs. 

The reasons given above by counsel for the parties for the proposed 

settlement have been reviewed in conjunction with the information submitted 

as to the six statutory criteria contained in section 110 of the Act. After 

according this information due consideration, it has been found to support the 

proposed settlement. It therefore appears that a disposition approving the 

settlement will adequately protect the public interest. 

ORDER 

Accordingly, IT IS ORDERED that the proposed settlement, as outlined 

above, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that Respondent, within 30 days of the date of this 

decision, pay the agreed-upon penalty of $200 assessed in these proceedings. 

Law Judge 

Distribution: 

Allen H. Bean, Esq., Office of the Solicitor, U.S. Department of Labor, 

231 w. Lafayette, 657 Federal Building, Detroit MI 48226 (Certified 

Mail) 

Willis P. Jones, Jr •. , Esq., and James A. Climer, Esq., Jones, Schell & 

Schaefer, 510 United Savings Building, 240 Huron Street, Toledo, OH 

43604 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

265 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 1 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

QUARTO MINING COMPANY, 

Respondent 

DECISION 

Docket No. LAKE 80-385 

A/O No. 33-02624-03106 

Powhatan No. 7 Mine 

ORDER TO PAY 

This case consists of a petition for the assessment of civil 

penalties for two alleged violations of the Act. The Solicitor has 

filed a motion to approve a settlement for one of the two citations. 

Citation 1009643 was issued for an alleged violation of 30 CFR 

75.316. On September 8, 1980 a hearing was held in Secretary of Labor 

v. Nacco Mining Company, Quarto Hining Company and The North American 

Coal Corporation, LAKE 80-251, et al. in which the same provision of 

respondent's dust control plan at issue in this citation was litigated. 

In those cases a decision dated September 22, 1980 held invalid this 

provision of the dust control plan. The decision in LAKE 80-251 is 

dispositive of this citation. 

Citation 9938290 was issued for a violation of 30 CFR 70.lOO(b). 

The parties have proposed a settlement of $150 for this violation. 

After having reviewed this citation I approve the recommended settlement. 

ORDER 

Citation 1009643 is hereby VACATED and the petition to assess a 

civil penalty is DISMISSED insofar as it concerns this citation. 

The operator is ORDERED to pay $150 within 30 days from the date of 

this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

F. Benjamin Reik III, Esq., Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Office Bldg., 1280 East 9th St., Cleveland, 

OH 44199 (Certified Mail) 

John T. Scott III, Esq., Crowell & Moring, 1100 Connecticut Ave., }1-W, 

Washington, DC 20036 (Certified Mail) 

266 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 7 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

ISLAND CREEK COAL COMPANY, 

Respondent 

Docket No. WEVA 79-112-P 

A.C. No. 46-01459-03025 V 

Birch No. 2-A Mine 

DECISION 

Appearances: 

Before: 

James H. Swain, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Marshall S. Peace, Esq., for Respondent. 

Judge William Fauver 

This proceeding was 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 case was heard in Charleston, West Virginia. 

Both parties were represented by counsel, who have submitted their proposed 

findings, conclusions, and briefs following receipt of the transcript. 

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

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

FINDINGS OF FACT 

1. At all pertinent times, Respondent, Island Creek Coal Company, 

operated a coal mine known as the Birch No. 2-A Mine in Nicholas County, 

West Virginia, which produced coal for sales in or substantially affecting 

interstate commerce. 

2. Respondent used a retreat mining method at the Birch No. 2-A Mine, 

which involved driving a series of rooms, about 20 feet wide and 80 feet long, 

into the coalbed. Pillars of coal would be left standing to support the roof 

until the area was fully developed. Coal would then be removed from the supporting pillars in a pattern until the roof caved in, leaving a gob area. 

About eight mining cycles, in four shifts, were required to drive through 

six rooms into a new crosscut. 

267 
3. The mining sequence in the retreat method was roof bolting, cutting, 

drilling, blasting, and loading. After the roof was bolted, the face would 

be cut with a cutting machine before the coal was blasted. Undercutting and 

overcutting involved making horizontal cuts along the bottom and top of the 

face so that the coal would separate evenly from the face following the blast. 

Undercutting and overcutting also relieved the coal seam from overburden 

stresses. After cuts, the cutter would pull out and a drill would be brought 

in to drill holes for the explosives. 

4. Cutting was also performed to shear loose ribs and overhanging brows 

that often accompanied retreat mining. An overhanging brow is a rib that is 

not aligned at right angles with the roof and that extends over the travelway. A loose or cracked overhanging brow can create a serious hazard to 

miners in the area. Removal is typically done by cutting underneath the 

overhang and then shearing it vertically. Normally, before an overhang falls 

there is ·a warning noise accoopanied by loose, falling material. About once 

every shift, loose ribs and overhangs are cut down as part of the regular 

mining cycle and it is often necessary to shear the same areas several times. 

5. On August 24, 1978, Mr. McClung, a shuttle car operator, pointed out 

an overhang on the corner of the No. 3 room to William Bradey, the cutting 

machine operator, and Bradey sheared it off. Bradey had sheared this overhang 

on more than one occasion before this. 

6. Loose ribs and overhangs are prevalent in the Birch No. 2-A Mine. 

Shuttle car operators customarily notify section foremen of loose overhangs 

observed while traveling through an area of the mine. The shuttle car operators generally make 40 to 50 trips each shift; however, none had passed 

through the 4-right off east main section on August 25, 1978. 

7. On August 25, 1978, Eugene Cook, Respondent's section foreman in the 

Birch No. 2-A Mine, arrived underground with his crew at the 4-right off east 

main section between 8:20 and 8:30 a.m. The shift began at 8:00 a.m. Before 

entering the mine, Cook reviewed the report of William Bayles, the fireboss 

on the previous (third) shift. The report made no reference to overhanging 

brows. Nor:nally, if a problem arises between shifts, the fireboss would note 

the problem and alert the foreman on the follovtlng shift. No mining is performed on the third shift. 

8. On August 25, Cook preshifted the belt haulageway and face areas while 

the crew remained in the dinner hole. Cook's preshift examination did not 

cover all areas between the last open crosscut and the next crosscut outby. 

He traveled through the last two open crosscuts and observed loose overhangs 

in two locations (designated as Ill and 112 on Respondent's Exhibit No. 1). 

One of the locations was the same area reported by the shuttle car operator 

on August 24, 1978. Cook returned to the dinner hole at about 8:40 a.m. and 

told William Bradey to shear off the loose overhangs. One of them was dangered off because of a "scrap cut," which referred to an area that has not 

been cleared adequately. The rest of the crew were told to move equipment, 

268 
scale tops and move cables and curtains so that the ribs and overhangs could 

be sheared. They would not be working in the vicinity of the cutting machine 

while performing these tasks. 

9. On August 25, 1978, federal mine inspector Henry Baker arrived at 

Respondent's Birch No. 2-A Mine at 7:15 a.m. After checking mine records on 

the surface, Inspector Baker traveled to the 4-right off east main section 

and at about 9:30 a.m. began checking the faces of rooms 1 through 6 and the 

travelways and roadways by the docking point. No coal was being mined and 

no equipment was being loaded. Inspector Baker observed a cutting machine, 

a loading machine, two shuttle cars, a coal drill and a roof-bolting machine; 

however, he did not inspect any of the equipment. 

10. Inspector Baker observed ntnnerous overhanging brows and unsupported 

ribs in the Nos. 1 through 5 rooms, in the last open crosscut and in the first 

two crosscuts outby the last open crosscut. These conditions were observed in 

each room about every 10 feet on both sides of the room. Some of the overhangs ranged from 2 to 4 feet and over 1 dozen of the overhangs were loose 

and cracked. 

11. By visual observation, Inspector Baker determined that the overhanging brows were loose and cracked. He estimated the size of the overhangs 

instead of using a measuring stick because the coal seam was about 11 feet 

and he was unable to reach and prod the roof. 

12. The inspector determined that the condition was dangerous and that 

Respondent's section foreman was aware or should have been aware of the condition. About 10 men worked in the area and all of them would be exposed to 

the hazard of falling roof or ribs during normal mining cycles. 

13. On August 25, 1978, Inspector Baker issued Order of Withdrawal 

No. 53415 to Respondent, which reads in part: 

Loose, unsupported ribs, coal, and unsupported overhanging coal brows were present at ntnnerous locations along 

the shuttle car roadways in the 4-right off east main section, 

section 031-0, beginning in the second line of open crosscuts 

outby the faces and inby in all areas in the number 

1 to nur.i.ber 5 rooms. 

The cited condition was abated by 5:00 p.m., by taking down the overhanging 

brows. 

14. Between July 11, 1978, and August 25, 1978, Respondent received 

12 citations charging violations of 30 C.F.R. § 75.202. 

DISCUSSION WITH FURTHER FINDINGS 

Based on the order of withdrawal issued on August 25, 1978, the Secretary 

has charged Respondent with a violation of 30 C.F.R. § 75.202, which provides: 

269 
The operator, in accordance with the approved plan, shall 

provide at or near each working face and at such other locations in the coal mines as the Secretary may prescribe an 

ample supply of suitable materials of proper size with which 

to secure the roof of all working places in a safe manner. 

Safety posts, jacks, or other approved devices shall be used 

to protect the worY....men when roof material is being taken down, 

crossbars are being installed, and in such other circumstances 

as may be appropriate. Loose roof and overhanging or loose 

faces and ribs shall be taken down or supported. Except in the 

case of recovery work, supports knocked out shall be replaced 

promptly. 

The basic issue as to the charge is whether Respondent failed to take down 

or support loose, overhanging ribs and brows. 

The Secretary argues that the overhanging brows and loose ribs observed 

by Inspector Baker on August 25, 1978, created a risk of serious injury or 

death to miners working in the area. The Secretary contends that there were 

over 1 dozen loose, overhanging brows that were cracked and broken away from 

the main ribs, that Respondent had not supported the overhanging brows and 

ribs, and that Respondent was not in the process of shearing the overhangs 

when the inspector arrived. The Secretary argues that the cited condition 

was knotvn or should have been known by the operator because the overhangs 

resulted from mining coal over at least four producing shifts. 

Respondent argues that the cited standard requires that loose overhangs 

and ribs be taken down and that during the preshift examination the mine foreman observed only two loose overhangs that needed to be taken down. Respondent contends that at the time of the inspection, production had not begun 

and the cutter was shearing the loose overhangs that had been observed by the 

foreman during the preshift examination. Cook testified that when he preshifted the cited area he observed only two serious overhangs that required 

action and that he told Bradey, the cutter, to shear them off. Bradey testified that when the inspector arrived, he had already begun to cut one of the 

overhangs (designated as #2 on Respondent's Exhibit No. 1) and the other one 

(designated as #1 on Respondent's Exhibit No. 1) had been dangered off. 

Respondent also argues that the inspector failed to identify specifically 

which of the cited overhangs were loose and that the inspector's conclusion 

that the overhangs were cracked and loose was based only on visual observation. 

Respondent contends that the inspector was unable to determine the size of the 

overhangs or whether the overhanging brows were dangerous without being close 

enough to measure the overhangs and conduct sound and vibration tests. 

I credit the inspector's testimony in estimating the mnnber and size, and 

in appraising the danger, of the overhangs he observed on August 25, 1978. I 

find that Inspector Baker's examination of the cited area was more extensive 

than the foreman's preshift examination and that the inspector's opinions, 

which were based on visual observation, are reliable. I find that a visual 

2:10 
examination in an 11-foot coal seam is a proper method of inspection and that 

it was not necessary that he measure and prod the overhangs to estimate their 

size or to determine whether they were cracked and loose. 

At the time of the inspection on August 25, 1978, the shift had not yet 

begun to produce coal and the cutter had already begun to shear an overhang 

in one of the locations observed by the foreman during the preshift examination. The other overhang observed by the foreman was in a dangered off area 

and, therefore, posed no immediate danger. I credit the testimony of the 

cutter, William Bradey, that he was shearing an overhang when the inspector 

arrived. However, the foreman had not issued instructions to cut down the 

other overhangs (which ~ere later discovered by the inspector). The evidence 

indicates that production would have begun without first cutting such overhangs down. I find that this condition constituted a violation of 30 C.F.R. 

§ 75.202 and a serious hazard to the miners. Respondent was negligent in 

failing to correct or danger off this condition before the federal inspection on August 25. 

CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the parties and subject 

matter of the above proceeding. 

2. Respondent violated 30 C.F.R. § 75.202 by failing to remove or 

support loose ribs and overhanging brows as alleged in Order of Withdrawal 

No. 53415. 

3. Based upon the statutory criteria for assessing a civil penalty for 

a violation of a mandatory safety standard, Respondent is assessed a penalty 

of $2,500 for this violation. 

ORDER 

WHEREFORE IT IS ORDERED that Island Creek Coal Company shall pay the 

Secretary of Labor the above-assessed civil penalty, in the amount of $2,500, 

within 30 days from the date of this decision. 

WILLIAM FAUVER, JUDGE 

Distribution: 

Ja~es H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

3535 Market Street, Room 14480, Gateway Building, Philadelphia, PA 

19104 (Certified Mail) 

Marshall S. Peace, Esq., Counsel for Island Creek Coal Company, P.O. 

Box 11430, Lexington, KY 40502 (Certified Mail) 

271 
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. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.JAN 2 8 1981 

Petitioner 

Civil Penalty Proceeding 

Docket No. SE 80-66-M 

A.O. No. 09-00017-05005 H 

Blue Ribbon Quarry 

DOVE CREEK GRANITE COMPANY, INC., 

Respondent 

DECISION. 

Appearances: Michael Hagan, Attorney, Office of the Solicitor, U.S. 

Department of Labor, Atlanta, Georgia, for the petitioner; 

John Strong, Elberton, Georgia, for the respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

· This proceeding concerns a proposal for assessment of a civil penalty 

filed by the petitioner against the r~spondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), charging 

the respondent with one alleged violation of mandatory safety standard 

30 C.F.R. § 56.15-5. 

Respondent filed a timely answer and notice of contest and a hearing was 

convened on November 25, 1980, in Athens, Georgia. The parties waived the 

filing of written proposed findings and conclusions, but were afforded an 

opportunity to present oral argwnents in support of their respective positions. A bench decision was rendered which is herein reduced to writing as 

required by Commission Rule 65, 29 C.F.R. § 2700.65. 

Issues 

The principal issues presented in this proceeding are: (1) whether 

respondent has violated the provisions of the Act and implementing regulations as alleged in the proposal for assessment of civil penalty filed in 

this proceeding; and, if so, (2) the appropriate civil penalty that should 

be assessed against the respondent for the alleged violation based upon the 

criteria set forth in section llO(i) of the Act. Additional issues raised 

by the parties are identified and disposed of in the course of this decision. 

2'72 
In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty 

to the size of the business of the operator, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S.C. § 801 et 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 

Citation No. 099053, August 22, 1979, 30 C.F.R. § 56.15-5 states as follows: "Clarence Thornton and Julius Langston were drilling a lift hole using 

a 12 inch piece of channel iron for a working platform. The platform was just 

above water which was about 30 feet deep. Neither man was wearing safety line 

or life jacket." 

Stipulation 

Respondent is subject to the jur~sdiction of the Federal Mine Safety and 

Health Review Commission (Tr. 7). 

Testimony and Evidence Adduced by the Petitioner 

MSHA inspector Tom Hubbard confirmed that he issued the citation and 

withdrawal order after inspecting the mine and discovering two men who were 

in danger of falling off a 12-inch wide channel iron. He noticed that the 

channel iron had a 2-inch lip running along either side of its approximate 

10-foot length (Tr. 13). One side of the channel iron was on the quarry wall 

and the other end was resting on a pile of submerged stone or quarry bottom. 

The section of the iron on which the men were standing was suspended over 

water which vibrated when the men moved on the iron. According to the workmen, the water was 30 feet deep. Mr. Hubbard himself took a 15-foot pole 

and unsuccessfully attempted to touch bottom with it. Upon questioning the 

two men, Mr. Hubbard determined that neither could swim (Tr. 14-15). 

Mr. Hubbard testified that the men were using a jackhammer drill which 

released oil during use. This oil, he concluded, would make the walking 

surface of the channel iron slippery. The 2-inch lip on the iron was also 

thought to provide a tripping hazard. Since the men could possibly drown if 

they fell, Mr. Hubbard felt that the men should have been tied down or have 

worn safety belts while performing the operation (Tr. 15-17). 

273 
Inspector Hubbard testified that Mr. Thornton, the foreman, was aware 

that the men were working without safety belts or lines, although a reasonable peson should have known of the danger. After Mr. Hubbard issued the 

107(a) withdrawal order, the operator withdrew the men and sent them to town 

to purchase the proper equipment (Tr. 17-18). 

In response to bench questions, Mr. Hubbard testified that on the day 

following the issuance of the withdrawal order, there was full compliance 

with the safety requirements. He reiterated the fact that the reason he 

issued the original citation and withdrawal order was because of the danger 

of falling or drowning, and not because the operator used a channel iron as 

a work platform. Mr. Hubbard stated that it was not unusual to allow water 

to fill up part of a nonworking quarry, because it could always be pumped 

out at a later date. At the time of the citation, he found this to be a 

working quarry (Tr. 18-22). 

Testimony and Evidence Adduced by the Respondent 

Respondent attempted to introduce two sworn affidavits, but these were 

rejected because it was riot shown that the affiants were unavailable (Exhs. 

R-1, R-2). Respondent conceded the fact of a violation, but then referred to 

the company's financial statements as evidence of its unstable financial condition (Exh. R-3). The defense rested its case on the fact that the company 

was no longer in business (Exh. R-4, Tr. 25-27). 

Findings and Conclusions 

Fact of Violation 

Respondent is charged with a violation of 30 C.F.R. § 56.15-5 which 

requires men to wear safety belts and lines when there is a danger of falling. 

Respondent concedes, and I find, that allowing men to work on a channel iron 

where there was a danger of falling, without providing safety belts and lines, 

violated this regulation. 

Good Faith Compliance 

The record supports a finding of good faith compliance with the withdrawal 

order. The inspector testified that the men immediately ceased working and 

were sent to buy ropes. The next time he visited the site, the workers were 

securely tied down (Tr. 17-18). 

Gravity 

The evidence establishes that this was a serious violation. Since the 

water was at least 15 feet deep, and neither man could swim, there was a good 

possibility of drowning. 
Negligence 

I find that this violation was a result of ordinary negligence. A reasonable man would have recognized the danger and would have required the 

workers to wear safety belts and lines. 

History of Prior Violations 

Respondent's record indicates that there was no significant history of 

prior violations warranting an increase in the assessment (Exh. P-2). 

Size of Business and Effect of Civil Penalty on Respondent's Ability to Remain 

in Business 

The evidence indicates that the quarry was run by a small operator (Exh. 

P-2), and petitioner agreed that this was the case (Tr. 8). Both parties 

agree, and I find, that the respondent is no longer in business. Further, I 

am persuaded by respondent's financial records that the mine operated at a 

loss in 1979, and petitioner does not dispute that this was in fact the case 

(Tr. 9). 

Penalty Assessment 

On the basis of the foregoing findings and conclusions made in this proceeding, a civil penalty of $100 is assessed for Citation No. 099053, issued 

on August 22, 1979, for a violation of 30 C.F.R. § 56.15-5. I conclude that 

since the mine operator is no longer in business, a $500 penalty will serve 

no useful deterrent purpose, but due to the gravity of the violation, I 

believe that an assessment of $100 is .appropriate. 

ORDER 

Respondent is ORDERED to pay the civil penalty assessed by me in the 

amount of $100 within thirty (30) days of the date of this decision. Upon 

receipt of payment by MSHA, this matter is dismissed. 

'J _) ~'"'· ~· ) ._J,,./ , ·~.{(lk)''- 1

) C0v-.lvtnt,.y1 ·G~orge ,i:~. Ko tr s 

Admini~·trative Law Judge 

Distribution: 

Michael Hagan, Attorney, Office of the Solicitor, U.S. Department of 

Labor, 1371 Peachtree Street, NE., Atlanta, GA 30309 (Certified Mail) 

John Strong, Office Manager, Dove Creek Granite Company, Inc., Box 593, 

Elberton, GA 30635 (Certified Mail) 

275 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1981 

MABEN ENERGY CORPORATION, 

Contestant 

Contest of Citation 

v. Docket No. WEVA 80-437-R 

SECRETARY OF LABOR Citation No. 653368 

MINE SAFETY AND HEALTH May 19, 1980 

ADMINISTRATION (MSHA) 

Respondent Maben No. 3 Mine 

DECISION 

Appearances: James M. Brown, Esq., File, Payne, Scherer & Brown, 

Beckley, West Virginia, for Contestant; 

Before: 

Stephen P. Kramer, Esq., U.S. Department of Labor, 

Office of the Solicitor, Arlington, Virginia for 

Respondent. 

Judge Melick 

Hearings were conducted in this .case on September 17, 1980, in Beckley 

West Virginia fol~owing which I issued a bench decision. That decision, 

which appears below with some modification, is affirmed at this time. 

This case is before me under Section lOS(d) of the Federal Mine Safety 

and Health Act of 1977. Maben Energy Corporation (Maben) is contesting 

Citation No. 653368, a citation issued under the provisions of section 

104(d)(l) 1/ on May 19, 1980, by MSHA Inspector James Ferguson for a violation of the standard at 30 C.F.R. § 75.316, i.e. a violation of,Maben's 

methane and dust control plan. Maben does not question that the cited viola~ 

tion did occur and contests only the special finding of "unwarrantable 

failure" made in connection therewith. 

1./ Section 104(d)(l) provides in 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 by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, 

and if he finds such violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or safety standards, he 

shall include such finding in any citation given to the operator under this 

Act." 

276 
The standard cited facially requires only that the operator file and 

have in effect a methane and dust control plan approved by the Secretary. 

The standard has been construed however as requiring also that the operator 

comply with its approved plan. Zeigler Coal Company, 4 IBMA 30 (1975), aff'd, 

536 F.2d 398 (D.C. Cir. 1976). It is specifically charged in this case that 

Item No. 7 on page 2 of the operator's plan was violated because there was no 

perceptible movement of air in the cross cut left off of the No. 4 entry of 

7 Left 013 section. That part of the plan requires that if a blowing system 

of ventilation is used, as the evidence shows was used in this case, the minimum amount of air at the end of the line curtain must be 3,000 cubic feet 

per minute. It has.been stipulated that at the time the citation was issued 

on May 19, that that minimum amount was not met. 

The issue before me is whether this violation was the result of the 

unwarrantable failure of the operator to comply with the law. A violation is 

a result of "unwarrantable failure" if the violative condition is one which 

the operator knew or should have known existed or which the operator failed 

to correct through indifference or lack of reasonable care. Zeigler Coal 

Company, 7 IBMA 280 (1977). 

According to the testimony of Mr. Fred Ferguson, superintendent of the 

Maben No. 3 mi-ne, this mine and in part:lcular this section that we are talking about today had a history of deficient ventilation and, in fact, on 

occasion -- and I got the impression, not infrequently -- was less than the 

required 3,000 cubic feet of air per minute. I conclude from that history 

that management was on notice that special precautions were required that 

might not otherwise be called for to keep the working areas of that section 

properly ventilated. Superintendent Ferguson indeed conceded that because of 

this known history he had given section foreman Campbell the special duty to 

keep him currently informed as to what areas could safely be worked. 

Now, it is essentially undisputed that as part of his on-shift inspection section foreman Campbell went to the cited No. 4 entry between 7:30 and 

7:55 of the morning in question and at that time thought that he felt a 

"perceptible" movement of air on his face and hands. In spite of the fact 

that Campbell was aware of the recurring problem of air deficiency ~n this 

section and that'there was only a "perceptible" movement of air that morning 

he made no effort to determine whether that working place in fact had 

sufficient ventilation. 

Inspector Ferguson's testimony is undisputed that when he arrived at the 

No. 4 entry where men were installing roof bolts there was dust in suspension 

and absolutely no movement of air. Since the vanes o~ his anemometer would 

not move for lack of air velocity he released smoke from a chemical smoke 

tube. The smoke did not move in any direction. According to mine superintendent Ferguson this test was made between 7:30 and 8:00 that morning. Since 

section foreman Campbell made his determination of only "perceptible" air in 

the same entry during that same time (between 7:30 and 7:55 that morning) it 

is reasonable to infer that there was indeed an obviously deficie.nt flow of 

air when Campbell made his inspection. Campbell therefore knew or should 

27? 
have known of that deficiency. If indeed he detected only perceptible air 

movement it was incumbent on him to verify the adequacy of that air before 

allowing his men to work there. He was apparently also failing to comply 

with the company policy of verifying the air flow in this section. His failure to do so and to correct that condition through indifference or lack of 

reasonable care shows that the violation was the result of "unwarrantable 

failure" to comply with the law. The actions and negligence of foreman 

Campbell are of course imputed to the operator. 

I also conclude that the violation was of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety 

and health hazard under section 104(d)(l) of the Act. The absence of ventilation at a working face could result in the buildup of explosive methane gas 

and coal dust and cause a respirable dust health ~zard to the miners. The 

citation herein is therefore affirmed, and the con'~.est dismis. sed. /1 

i \\wi· u 

·.vf"i r\ \}) ~)\},II ~\ \J 'V'\.\.I i .. · ~ Ga~Y·I Melick \ 

Ad\i\·~di, strativ\ ~~aw Judge 

James M. Brown, Esq., File, Payne, S~ . er & Bro 130 Main Street 

Distribution: ~ 

Law Building, Beckley, West Virginia 25801 (Cer fied Mail) 

Stephen P. Kramer, Esq., U.S. De~artment of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

(Certified Mail) 

278 

• 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

RANGER FUEL CORPORATION, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 t9S1 

Contestant 

Respondent 

Contest of Order 

Docket No. WEVA 79-218-R 

Order No. 0660570 

June 8, 1979 

Beckley No. 2 Mine 

SUMMARY DECISION 

This case involves one citation charging a violation of section 103(£) 

of the Federal Mine Safety and Health Act of 1977 (the Act). Section 103(£) 

reads in part: 

Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by 

his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine made pursuant to the provisions of subsection [103](a) * * *· [O]ne such representative of miners who is an employee of the operator shall be 

entitled to suffer no loss of pay during the period of such 

participation under the provisions of this subsection. 

In Kentland-Elkhorn Coal Corporation, 1 FMSHRC 1833 (November 30, 1979), 

~..=...:;..;;;...;;;;.pending No. 79-2536 (D.C. Cir., December 21, 1979), the Federal Mine 

and Health Review Commission interpreted the section 103(f) so-called 

walkaround pay provision to apply to section 103(a) "regular" inspections only. 

In reaching this decision, the Commission relied on its reasoning in Helen 

Mining Company, 1 FMSHRC 1796 (November 21, 1979), appeal pending No. 79-2537 

(D.C. Cir. December 21, 1979). In Helen Mining Company, the Commission held 

that a miner was not entitled under section 103(f) to walkaround pay for spot 

inspections pursuant to section 103(i) of the Act and noted that compensation 

was due only for a miner's accompaniment of a Federal inspector during a section 103(a) "regular" inspection. The Commission concluded therein that 

"regular" inspections were those described in the third sentence of section 

103(a) of the Act, i.e., the four required annual inspections of underground 

mines and the two required annual inspections of surface mines. 

279 
There is no disagreement between the parties in this case that the 

inspection giving rise to the citation at bar was a spot inspection and not 

a "regular" inspection within the framework of the Kentland-Elkhorn and 

Helen Mining decisions. There is, therefore, no issue before me as to any 

material fact. Under the circumstances, I find as a matter of law that the 

Ranger Fuel Corporation did not violate section 103(f) of the Act as charged 

in the citation at bar. 

Accordingly, Citation No. 660570 is VACATED and the civil pe lty proceeding, Docket No. WEVA 79-218-R, is DISM SSED. 

/\-/ 

ary ick , 

Adm:[Jn·strative; La 

I ' 

Judge 

Distribution: I 

I 

Paul Thomson, Esq., Ranger Fuel Corpbr tion, n, VA 24266 (Certified 

Le~:~) McGinn, Esq., Office of the J icitor, U,S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

280 
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. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1981 

Petitioner 

Civil Penalty Proceeding 

Docket No. DENV 79-389-PM 

A.C. No. 05-00354-05003 

Climax Mine 

CLIMAX MOLYBDENUM COMPANY, 

Respondent 

DECISION 

Appearances: James Cato, Esq., Assistant Solicitor, Mine Safety and 

Health Administration, U.S. Department of Labor, 

Kansas City, Missouri, for Petitioner; 

Rosemary Collier and Chalres w. Newcom, Esqs., Climax 

Molybdenum Company, Golden, Colorado, for Respondent. 

Before: Judge Lasher 

This proceeding arose under section llO(a) of the Federal Mine Safety and 

Health Act of 1977. A hearing on the merits was held in Denver, Colorado, on 

September 9, 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 proffered by counsel during closing argument, I entered 

an opinion on the record. 1/ My bench decision containing findings, conclusions and rationale appear-below as it appears in the record, aside from minor 

corrections. 

This proceeding arises upon the filing of a petition for 

an assessment of civil penalty by the Secretary of Labor 

against the Respondent seeking a civil penalty for the violations alleged in Citation No. 331748 issued July 28, 1978, 

and alleging a violation of 30 C.F.R. § 57.9-3. The authority 

for this proceeding is vested by section llO(a) of 'the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a). 

Originally, there were four violations involved in this 

docket, two of which were amicably settled by the parties 

1/ Tr. 217-231. 

281 
previously, and one of which (No. 331729) was vacated upon 

motion of counsel for Petitioner and the Secretary of Labor 

at the commencement of the hearing. One citation remains. 

The citation in question, No. 331748, was issued by inspector 

James L. Atwood, a duly authorized representative of Petitioner, who described the allegedly violative condition or 

practice as follows: "The 28 motor pulling the muck train 

in 614 X cut did not have an adequate braking system; four 

of the five braking cars used were inoperative. When the 

operator set the air brakes, the brakes failed to close." 

30 C.F.R. § 57.9-3 is a mandatory safety standard set 

forth under the general "loading, hauling, and dumping" standard relating to surface and underground mines. It provides 

that "powered mobile equipment should be provided with adequate brakes." The general issue to be decided, and indeed 

the sole factual issue, is whether or not the braking system 

on the muck train in question was adequate. 

I find initially that the safety standard in question is 

not so vague or ambiguous as to be unenforceable. In the 

abstract, it appears that it is possible to clearly establish 

by probative evidence whether or not a braking system is adequate or not even though the standard does not provide for 

specific minimum stopping distances for various types of 

equipment or trains. I would stipulate, however, that the 

regulation is not a model to be emulated in terms of detail 

or clarity and that it does invite further elucidation. On 

the other hand, not all standards are subject to perfect 

description, and whether or not brakes are sufficient or not 

is properly one for a subjective .evaluation based upon the 

evidence submitted to the finder of fact. 

The citation was issued during the first regular inspection of the Climax Mine of Respondent under the 1977 Act. 

Inspector Atwood observed at the 614 crosscut a muck train 

consisting of 21 cars which was being pulled by engine No. 28. 

The citation was issued at 9:20 a.m. (on July 28, 1978), and 

set forth a termination date of August 2, 1978, at 1600 hours. 

Thus, an abatement time in excess of 5 days was established. 

Inspector Atwood examined the train again on August 3, 1978, 

at which time he extended the compliance time to 1:45 p.m. 

on August 3, 1978. On August 4, 1978, the inspector terminated the citation noting that new brake shoes were installed 

and the brakes were holding on the three braker cars on the 

No. 28 motor train. 

During his inspection on July 28, Inspector Atwood visually observed the brakes on the locomotive (sometimes referred 

to as the "motor") and the five braker cars. He asked the motorman to set the brakes while he went under each car and checked 

282 
the brakes. He noted that on four of the braker cars, the brakes 

did not function on some, and that on some of the brakes the linkage had been bent where the shoes had not contacted the wheel. 

Thus, there was one good braker car, in the sense that it had an 

operable braking system on all four of its wheels, out of the five 

total braker cars which were placed immediately behind the motor 

on the 21-car train. The inspector indicated that, as to the four 

cars which were inadequate, at least two wheels of the four on 

each car had brakes which did not function properly. He indicated that one of the braker cars, and possibly two, did not 

have operable brakes on all four wheels. The inspector took 

hold of some of the brake shoes and shook them indicating the 

degree of looseness. He expressed the opinion that the brakes 

were not capable of stopping the muck train because there was 

not sufficient tension on the brake band or linkage. 

The inspector also testified that routinely during the 

course of the daily operation of the muck trains the brakes 

would have been checked. One of those occasions is when the 

operator picks up the train; another occasion is when the 

train is reloaded. And other evidence in the record, I note, 

indicates that the trains are checked f requently--one of the 

points being at a derailing point near the crusher. 

The inspector indicated with respect to the seriousness 

of the violation that the train would have traveled downgrade 

to the crusher from the point where he observed it approximately 1 mile from the crusher; that the downgrade ran approximately a quarter of a mile to the crusher; and that the train, 

had it been unable to properly stop, could have derailed or 

struck persons walking along the track or maintenance personnel 

repairing the rails. His opinion was that such an accident 

could result in a fatality. He also indicated that there are 

personnel who work in the drifts and that there is traffic on 

the rails. 

There are two production levels in the Climax Mine, the 

storke and the 600 level. When the violation was 

observed by the inspector, the train was on the 600 level and, 

according to the inspector, "appeared to be empty." The 

inspector indicated that the downgrade which commenced approximately a quarter of a mile before the crusher was a 6-percent 

downgrade. This was an estimate by the inspector who first 

testified that he did not know the of the downgrade. 

The record indicates that the braking system on the train 

consisted of the following: On the motor were air brakes 

backe·d up by a "dead man," which automatically sets the brakes 

should the locomotive operator faint or otherwise become 

incapable of operating the air brakes. In addition, on the 

283 
motor is a dynamic brake system which operates off the electrical system and which can be used to slow up the train. The 

use of braker cars had been in effect at the Climax Mine for 

approximately 15 years. The purpose of braker cars is to 

assist in the stopping of the trains. 

Various interpretations with respect to the purpose 

of the braker cars was provided by the Government inspector, 

who testified on behalf of the Petitioner, and by the three 

witnesses presented by Respondent. Based upon all of their 

testimony, I find that the braker cars,.at least in theory, 

have the following purposes: (1) to help the actual stopping 

or slowing down of the trains of which they are a part; (2) to 

help decrease the wear on the brakes of the motor behind which 

they are placed in the train; and (3) to provide an additional 

braking system should the braking system on the motor braker 

become inoperable. I would footnote that the third of Respondent 1 s witnesses, Mine Master Mechanic Harry Anderson, indicated that the main reason the use of braker cars is being 

continued is to minimize wear on the locomotive itself. He 

also indicated that had the Respondent's safety manual been 

updated the use of braking cars might have been changed or 

discontinued. This latter testimony, which I find to be 

gratuitous, is rejected, the hard fact being that for 15 years 

the use of braker cars has continued. Considering the requirement for them in the Respondent's safety manual, and considering the (obvious) purposes of the braker cars, I conclude 

that they do constitute a braking contribution on any 

individual train which must be considered within the totality 

of the braking power to determine whether or not there is an 

adequate braking system. 

Respondent presented convincing evidence that the greatest grade on the 600 level was one of 0.45 percent. That is 

less than one-half of 1 percent and to be contrasted with the 

6-percent grade estimated by Inspector Atwood. A I-percent 

grade would indicate a 1-foot gradient every 100 feet. I 

infer that t~at is not a particularly steep grade. The 

inspector defined what adequate brakes should be as "enough 

to do the job," which in the context of the facts of this 

~ase would be enough to stop a loaded muck train on a downgrade in the 600 level of the mine. I note that it was at 

this point in his testimony that he indicated that he did not 

know the percent of the downgrade and that it was later on 

that he ventured the 6-percent estimate. The inspector indicated, in explanation as to why he gave the Respondent 5 days to 

abate the alleged violation, that he was aware that the company 

knew of the bad brakes and was aware that it would have to 

operate (the train) at a slower speed. The inspector also 

284 
said that a motorman would not use the dynamic system of braking in the locomotive alone to stop a train because it would 

take too long. He also pointed out that if the brake shoes 

did not work properly on the air brake system the same 

deficiency would apply to the deadman system. The inspector 

estimated the maximum speed which a loaded muck train might 

travel to be 15 miles per hour. Respondent's evidence indicated that the maximum speed would be 4 to 5 miles per hour. 

Inspector Edward Machesky, a rebuttal witness for the Petitioner, estimated the maximum speed would be 8 to 10 miles 

per hour. Inspector Atwood, as I previously noted, believed 

the train to be empty when he observed it and indicated that 

it would take 2 or 3 times as much distance to stop a loaded 

train as an empty train. Based upon the evidence submitted 

by Respondent, which I accept in the following particulars, 

I find that the inspector's opinion that the brakes were 

inadequate was based in part upon the following erroneous 

assumptions: 

(1) That the downgrade in proximity to the crusher was. 

6 percent. The Respondent's evidence in this respect I find 

to be the more persuasive and I find that the maximum grade 

in the 600 production area was .45 of 1 percent. 

(2) The inspector also mistakenly believed the train 

was empty at the time he observed it, which I gather the Petitioner has accepted as erroneous. In any event, I find on the 

evidence of record that the train was fully loaded at the time. 

The inspector's opinion can also be subject to a final 

criticism in the sense that if he considered the alleged violation to be of a high degree of gravity, why would a 5-day 

abatement have been granted? On the other hand, he did partially explain the granting of such a period based upon his 

understanding that the·Respondent would, presumably, automatically slow down the speed of the trains. However, he also 

testified that he obtained no promise or commitment from any 

of Respondent's personnel to take certain remedial action 

immediately. There was no assurance that the train would not 

proceed fully loaded down the incline to the crusher. Although 

it is impossible to be certain from the evidence of record, 

the probability is that the train, after it was observed by 

the inspector, would have proceeded to the crusher - which 

Respondent's witnesses indicated was approximately a mile and 

a quarter from the place of observation by the inspector. 

There is testimony in the record with respect to the 

effect that fully operational braking systems on the braker 

cars would have on the distance it woul~ take to stop the 

28:5 
train. One estimate by Respondent's witness was that it would 

stop the train under certain circumstances in some 30 feet 

less distance than if the braking system was to be done only 

by the locomotive itself. One of Respondent's witnesses, its 

general mine foreman in July 1978 who is now retired, Lee 

Walke~, did indicate what I construe to be an admission that 

not all the brakes were working at the time the citation was 

issued. He testified that the brakes in the braker car 

directly behind the locomotive were working properly but that 

the brakes in the next car were not working, and that the 

brakes in the remaining cars (that is the Nos. 3, 4 and 5 

cars) were only partially working. He went on to indicate--

which I find to be somewhat in contradiction to his earlier 

testimony--that once the train got underway the brake shoes 

would fit tight against the wheels. That is, while the.train 

is static or not moving the brake shoes may be loose, but 

once the train becomes dynamic or moving this would have 

the effect of causing the brake shoes to set more closely 

against the wheels. This same explanation was advanced in 

more technical detail by Mr. Anderson, Respondent's mine 

master mechanic. However, I felt that Mr. Walker's testimony 

was revealing in the sense that his testimony changed from the 

initial statement that the brakes on various of the braker 

cars were not working to the explanation that the shoes would 

get tight once the train began moving. I should state that I 

thought that the latter position was not one of explanation 

but more one of induced change as he was testifying. This 

finding and analysis on my part is somewhat critical to my 

final .determination. The reason it is critical is that the 

hard evidence and the persuasive evidence and the evidence 

upon which this dispute must be ultimately resolved rests 

upon the opinions of the various persons who have testified 

here today. There have been considerable inconsistencies and 

contradictions in the record as well as lengthy testamentary 

discourse which in the long run led nowhere. The opinions 

of various individuals when weighed and analyzed become the 

determinant of whether or not the powered mobile equipment in 

question was provided with adequate brakes at the time the 

inspector issued the citation. I therefore conclude that 

despite the three errors, which I enumerated, in the inspector's testimony his opinion should be credited. It is somewhat bolstered, and I think actually very significantly 

bolstered, by the testimony of Mr. Walker when the same is 

finally analyzed. This acceptance of the inspector's opinion 

in turn is founded upon a finding that four of the five braker 

cars had, to some extent, faulty braking systems. I infer 

from the facts that if such braker cars are on a muck train 

to begin with and have been used there for many, many years 

without the Respondent's taking them off, they certainly must 

have some purpose. The obvious purpose of any braking system 

286 
is, in any context, to stop movement of a vehicle. This is 

the primary safety factor on any moving vehicle. Since I 

find that one of those cars had an entirely inoperable braking 

system and that the remaining three were possessed of brakes 

which on at least two wheels were not operable, I conclude 

that the train was not provided with adequate brakes. In this 

context, I note that safety standards are not designed to 

cover ideal situations. There must be overkill so that when 

accidents do happen and when other systems do fail there is 

a backup or an alternative to the occurrence of a hazard 

which the standard is designed to avoid. I have no doubt 

that at least on a level run the train in question could be 

stopped by the locomotive or motor-braking system. On the 

other hand, the evidence of record clearly establishes that 

the braking systems of the braker cars would shorten the 

distance in which that train could be stopped should the need 

arise. And the braker cars also provide, I find, a possible 

alternative braking source should the braking system on the 

motor fail as the result of any cause other than an impairment 

of its air system which also seats the braking systems on the 

braker cars. 

I thus conclude that a violation of 30 C.F.R. § 57.9-3 

was committed as described by the inspector in the citation. 

The statutory penalty assessment factors which must be considered have to a great extent been resolved by stipulations 

and agreement of the counsel for the parties. I find that 

this is a large mine operation on the basis that it has a 

total of 3,000 employees, some 1,600 to 1,700 of which work 

underground, and that such was the case in 1978. I also find 

that the Respondent produces some 48,000 tons of molybdenum 

ore every day, 30,000 tons of which are produced at the underground mine. The Respondent, at the time of the commission 

of the violation, had a history of 107 violations, two of 

which involved the same safety standard as that involved here 

today. I find that the Respondent proceeded in good faith to 

achieve rapid compliance with the safety standard after being 

advised of the violation by the inspector. I find that the 

Respondent has the economic ability to pay any penalty which 

I might assess in this case without jeopardizing its ability 

to continue in business. * * * 

There remains to be considered the factors of negligence 

and gravity. I am unable to find any evidence of gross negligence on the part of Respondent or any specific act of negligence or failure to discharge any specific responsibility that 

it has under the Act or otherwise which can be attributed to 

it by any action or nonfeasance of its supervisory personnel. 

There was no Government rule in effect at the time of the violation, as I understand it, which required certain checks of 

those practices. 

287 
The question arises whether or not ordinary negligence 

should be inferred from the commission of a safety violation 

by an employer. There is considerable state law to the effect 

that ordinary negligence can be and should be inf erred from the 

mere commission of a safety violation. I believe that in this 

case the finding of ordinary negligence would be academic as 

I do not believe the penalty should be increased or otherwise 

changed one way or the other on the basis of negligence. 

There is just an absence of criteria in the record which would 

govern or guide any judgment along that line. So I make a 

finding in this case of no negligence. 

With respect to the seriousness of the violation, I previously set forth the inspector's testimony in that respect. 

There is no question but that a train accident, because of the 

multi-ton weight and the impetus and movement of the same, is 

fraught with the possible occurrence of serious bodily injury 

to anyone involved in a derailITent or to anyone being hit by 

a runaway train. On the other hand, the inspector's yiew of 

the seriousness of the violation is dramatically tempered by 

his failure to issue an imminent danger order. I therefore 

find that this was only a moderately serious violation under 

all the circumstances. 

Summing up then, the factors of size of the operator would 

call for an increase in the size of any penalty. On the other 

hand, the moderate history of violations which the Government 

concedes is not extraordinary for an operator of this size, is 

in mitigation of such an increase. Additionally, the good 

faith abatement of the violation by the operator and the fact 

that the operator was not negligent in this case militate for 

a lowering of the penalty. * * * Weighing those factors, a 

penalty of $100 is assessed. 2/ I would note that had I found 

negligence and had I found a higher degree of seriousness, a 

penalty in the $3,000 range would have been entertained. 

ORDER 

The Respondent, for Citation No. 331748, is ORDERED to pay a penalty 

of $100 to the Secretary of Labor within 30 days from the issuance of this 

decision. 

Citation No. 331729 is VACATED. 

2/ Petitioner's initial proposed assessment was $66.00. 

288 

... 
Distribution: 

James Cato, Esq., Office of the Solicitor, U. S. Department of 

Labor, 911 Walnut St., Rm. 2106, Kansas City, MO 64106 (Certified 

Mail) 

Rosemary M. Collier and Charles W. Newcom, Esqs., Sherman & Howard, 

2900 First of Denver Plaza, 633 17th St., Denver, CO 80202 

(Certified Mail) 

Richard W. Manning and W. Michael Hackett, Esqs., Climax Molybdenum 

Co., Amax, Inc., 13949 W. Colfax Ave., Golden, CO 80401 (Certified 

Mail) 

289 

*II S GOVEN!OO!NT PRINTING OFFICE< 1981 341~638/4151