INDEX MARCH 1980 

Co:mri.ssion Decisions 

3-07-80 Davis Coal Co. , MSHA v. HOPE 78-627-P et al Pg. 619 

3-31-80 Scotia Coal Mining Co. , !·1SHA v. BARB 78-306 Pg. 633 

Administrative Law Judge Decisions 

3-04-80 Duval Corp. , MSHA v. WEST 79-194-M Pg. 641 

3-05-80 Union Rock and Materials Corp., MSHA v. DENV 78-579-PM Pg. 645 

3-05-80 Rita Coal Co., MSHA v. KENT 79-52 Pg. 652 

3-07-80 Peab:xly Coal Co. v. MSHA & UMWA CENT 79-335-R Pg. 659 

3-07-80 Republic Steel Corp. , MSHA v. PENN 79-137 Pg. 666 

3-07-80 Princess Susan Coal Co. v. MSHA WEVA 79-423-R Pg. 669 

3-10-80 Windsor Power House Coal Co. v. MSHA & UMt'iA WEVA 79-193-R Pg. 671 

3-10-80 Ranger Fuel Corp. v. MSHA WEVA 79-378-R Pg. 674 

3-11-80 Jones & Laughlin Steel Corp, MSHA v. PENN 79-145 Pg. 678 . 3-12-80 Faulkner Coal & Leasing, MSHA v • KENT 79-146 Pg. 680 

3-12-80 Sewell Coal Co. , MSHA v. HOPE 79-6-P Pg. 690 

3-13-80 Msha, ex rel. Thanas Robinette v. United 

Castle Coal Co. VA 79-141-D Pg. 700 

3-17-80 Kaiser Steel Corp. ' MSHA v. DENV 79-245-PM Pg. 708 

3-19-80 Consolidation Coal Co. , .MSHA v. 'WEVA 79-354 Pg. 725 

3-19-80 Island Creek Coal Co. , MSHA v. WEVA 79-338 Pg. 730 

3-19-80 Lunar Mining Co. , MSHA v. PENN 79-160 Pg. 732 

3-19-80 Island Creek Coal Co. MSHA v. WEVA 80-48-D Pg. 734 

3-19-80 Eastover Mining Co. , MSHA v. VA 80-31 Pg. 736 

3-19-80 Consolidation Coal Co. , MSHA v. PENN 80-19 Pg. 738 

3-19-80 Surmni tville Tiles Inc. , MSHA v. VINC 79-213-PM Pg. 740 

3-26-80 Magma Copper Co. , .MSHA v. DENV 79-452-PM Pg. 744 

3-27-80 Cedar Coal Co. , MSHA v. WEVA 80-106 Pg. 746 

3-28-80 Freenan United Coal Mining co. , .MSHA v. VINC 78-395-P Pg • 748 

3-28-80 Valley camp Coal Co. , ~1SP..A v. WEVA 79-111 Pg. 756 

3-31-80 funterey Coal Co. , MSHA v. WEVA 80-64 Pg. 761 

3-31-80 American Sand & Gravel Co. , MSHA v. BARB 79-209-PM Pg. 763 
carmission Decisions 

March 1 - 31, 1980 
MARCH 

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

Secretary of Labor, MSHA v. C.C.C. Pompey Coal Co., Inc., PIKE 79-125-P 

(Judge Steffey, January 28, 1980) 

Secretary of Labor, MSHA v. Alabama By-Products Corporation, SE 79-110, 

etc. (Judge Moore, February 12, 1980) 

Local Union No. 6843, District 28, UMWA, v. Williamson Shaft Contracting 

Company, VA 80-17-C (Judge Moore, January 31, 1980) 

Pittsburg & Midway Coal Mining Company v. Secretary of Labor, MSHA, 

BARB 79-307-P, etc. (Judge Koutras, February 8, 1980) 

Secretary of Labor, MSHA v. Southern Ohio Coal Company, VINC 79-227 

(Judge Kennedy, February 8, 1980) 

Secretary of Labor, MSHA v. Sewell Coal Company, HOPE 78-744-P (Judge 

Lasher, February 12, 1980) 

Secretary of Labor, MSHA v. Alabama By-Products Corporation, SE 80-41-R 

(Judge Laurenson, February 14, 1980) 

Secretary of Labor, MSHA on behalf of Bobby Gooslin v. Kentucky Carbon 

Corporation, KENT 80-145-D (Petition for Interlocutory Review on 

temporary reinstatement order) 

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

Secretary of Labor, MSHA v. Sunbeam Coal Corporation, PITT 79-210, etc. 

(Judge Koutras, January 29, 1980) 

Charles W. Miller v. Old Ben Coal Company, LAKE 79-282-D (Judge 

Bernstein, February 5, 1980) 

White Pine Copper, Division of Copper Range Co. v. Secretary of Labor, 

MSHA, LAKE 79-223-RM, etc. (Judge Kennedy, February 4, 1980) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

DAVIS COAL COMPANY 

March 7, 1980 

Docket Nos. HOPE 78-627-P 

HOPE 78-672-676-P 

HOPE 78-687-P 

HOPE 78-696-P 

HOPE 79-112-P 

HOPE 79-195-P 

HOPE 79-233-P 

HOPE 79-234-P 

DECISION 

WEVA 79-25 

WEVA 79-130-133 

We directed review on our own motion on April 23 and October 17, 

1979, and January 8, 1980, of several decisions of administrative law 

judges granting motions to approve settlements in these cases. The 

issue in these civil penalty cases is whether the reasons given for 

the proposed settlements, and the facts offered in their support, 

warranted appro~al of the settlements. The motions set forth information relevant to the six statutory criteria in section llO(i) of the 

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

and extensively discussed the detrimental effect that assessment of 

the originally proposed penalties would hav~ had on Davis' ability to 

remain in business. The judges in each case considered the reasons 

for the proposed settlements and weighed the criteria set forth in 

Rule 2700.30(c); the reasons for the settlements are also on the public 

record. We have reviewed the records, and we find no basis to conclude 

that the administrative law judges erred in approving the settlements. 

The judges' decisions are, accordingly, affirmed. 

Commissioner Lawson, d-issenting: 
I dissent. The evidence submitted in support Qf theie 

1977 Act settlements does not support the token penarties 

agreed to for the violations involved. 

The Secretary concedes that the sole reason for the 

drastic reduction of the penalties initially proposed is 

this operator's "dire" financial ccnditi0n._!./ A review of 

the facts--undisputed except for those bearing on this 

operator's financial condition--is instructive. 

Davis Coal Company (Davis) admitted in these cases to 

174 violations, 117 of which were either serious or very 

serious. Nor did this operator contest the fact that in the 

twenty-four months preceding the first of these violations, 

it had also accumulated some 156 other violations. 

The Secretary's Office of Assessments proposed penalty 

assessments for the violations now before us in the total 

amount of $46,237.00. Despite this history, the Secretary 

agreed between March and October 1979, to settlement of 

these 174 violations for a total of $5,109.70, or a reduction 

of nearly 90 percent from the penalties originally proposed. 

The average amount paid by this operator was thereby reduced 

to $29.36 per violation. ~/Moreover, neither the Secretary 

nor the Judges1 below required this operator to come forward 

with any current financial information to determine what, if 

any, effect payment of the initially proposed penalties 

would have had on Davis' ability to continue in business.1/ 

_!./Davis did not contest the fact that it had violated the 

Act in each of these 174 instances, the gravity of 

the violations, or the negligence claimed in any instance. 

Neither did Davis dispute its history of past violations. 

This prior history was properly--perhaps even charitably--

characterized as "large." (Secretary's Motion to Approve 

Settlement and Dismiss, HOPE 78-627-P et al (Davis I) 

served March 19, 1979.) 

2/This compares to an average penalty per violation paid 

- by all operators, for calendar year 1979, of $124.00. 

(Mine Safety and Health Administration Activity Report 

(1979)). 

1/Section llO(i) of the Act provides: "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." 

620 
Scrutiny of Davis' business operations and supposedly 

"dire" financial condition therefore appears necessary in 

the context of review of these settlements~ The financial 

data which was submitted by the operator, and accepted by 

the Secretary, revealed that Davis Coal Company--a corporation 

owned solely by the president thereof--had only two officers, 

Winford Davis, president, and Marie Davis, who for 1976 were 

paid salaries totalling $29,000.00. The corporation made a 

net profit of $190,008.00 in 1976. 

For 1977, Davis claimed a net loss of $332,548.00. 

Nevertheless, the corporation's assets increased from 

January 1, 1976 to December 31, 1977, by more than $900,000.00, 

from $1,815,722~00 to $2,725,111.00. In 1977 this operator 

also increased the salaries paid to these same two officers 

from $29,000.00 to $71,578.00, despite the corporation's -

1977 "loss."'!__/ 

Further, those 1977 and 1978 "losses"--substantially 

resulting from "natural disasters," as noted by the Secretary 

in its brief of June 15, 1979 (page 6), were more than 

compensated for by insurance. (Secretary's Motion to Approve 

Settlement, Exhibit B thereto (Statement Electing to Have 

Gain Not Recognized), HOPE 78-627-P et al filed March 19, 

1979). 

4/This operate~ also expended $10,500.00 for a new boat 

- in 1975, $3,596.00 for a new golf cart in 1976, and 

$19,203.00 for a new Mercedes Benz in 1976, all purchased 

by and for the corporation, and one must assume necessary 

for Davis' mining endeavors. Their precise utility 

in these mining operations is not, however, explained in 

this record. 

Mr. Winford Davis is also the sole owner of another coal 

·company, Burning Springs Collieries Co., which has the 

same address as Davis Coal. Burning Springs showed a 

profit of $36,828.00 in 1976, and $22,800.00 in 1977. 

Certain real estate is also jointly owned by Davis Coal 

and Burning Springs, (Exhibit B, supra) and indeed is 

collateral for a loan obligation of Davis Coal. No investigation was had, nor information secured or requested, as 

to the financial interrelationship between these corporations. 

621 
This (Davis I) motion for settlement is unfortunately 

representative of the manner in which these violations were 

resolved. In that motion the Secretary noted Davis' 156 

violations in the 24 months preceding the first violation in 

the instant dockets, during 83 inspection days, and '' ... that 

this represents a large history of previous violations." 

In addition to the expenditures previously noted, and 

despite the fact that the violations settled in Davis I were 

agreed to on March 23, 1979, no 1978 or later tax returns 

were then--or ever--submitted--or apparently demanded by the 

Secretary or Judges to support this operator's plea of 

poverty. In fact, the only financial data submitted by 

Davis at that time was an unaudited financial statement for 

the first nine months of 1978 (dated September 30, 1978) 

accompanied by an explanation that the financial statements 

were "not audited" "are incomplete presentations" ... "do not 

include all the disclosures required by generally accepted 

accounting principles" and "should not be used by anyone who 

is not a member of the company's management." (Secretary's 

Motion to Approve, Exhibit C thereto, HOPE 78-627-P et al 

filed March 19, 1979). 

Davis is nowhere on record, in any exhibit, 

motion, brief, or pleading before any of the Judges below, 

or this Commission, with~ audited financial statements, 

which might give at least colorable credibility to the 

proposed penalties' claimed "effect on the operator's ability 

to continue in business." (Section llO(i), supra). Indeed, 

in no instance did the parties submit or the Judge require 

current financial information to show whether or not Davis 

could, at ' the time it was requesting approval of a 90 percent 

penalty reduction, pay the full penalties proposed and 

remain in business. 

The Secretary in Davis I also uncritically acquiesced 

in Davis' representation 'of its financial condition and 

accepted without question this operator's "unofficial 

corporate balance sheet," whatever that may be. (Emphasis 

added). (Exhibit C, supra). In addition, the settlement 

in those dockets--$2,407.00 versus proposed penalties of 

$23,935.00--was permitted to be paid in quarterly payments 

of approximately $600.00 per payment.ii This settlement was 

deemed acceptable for an operator with gross receipts (for 

the first nine months of 1978) of $736,982.00, and then 

current assets of $1,114,734.00. 

i/The Congress in writing the ~977 Act expressed strong disapproval of the delays which took place in penalty payments 

under the 1969 Act. "While low penalty assessments constitute 

one disturbing element of the current civil penalty system, 

the Committee is equally disturbed by the rather long period 

of time between citation of the initial violation and the final 

payment of the penalty associated with that violation." " •.. The 

Committee firmly believes that to effectively induce compliance, 

the penalty must be paid by the operator in reasonably close 

time proximity to the occurrence of the underlying violation." 

(S. Rep. at 15, 16; 1977 Legis. Hist. at 603, 604). 

622 
No mention was made in the motion to approve that 

settlement of any deterrent effect of the penalties agreed 

upon by the Secretary. Nor does the record evidence any 

consideration by either the Secretary or the Judge of 

deterrence, despite the legislative history of the Act. 

That history clearly states that the purpose of civil 

penalties is to "convinc[e] operators to comply with the 

Act's requirements." (S. Rep. at 45; 1977 Legis. Hist. at 

633). 

Nor did the penalty settlements arrived at in Dockets 

HOPE 79-195-P, 233-P, 234-P (Davis II); WEVA 79-25 (Davis 

III); or WEVA 79-130-133 (Davis IV) reflect more serious 

consideration of the place of deterrence in the fixing of 

penalties under the Act. In Davis II the Secretary does 

concede that financial difficulties do not " .•• automatically 

require major reduction in proposed penalties"; nevertheless, 

a 90 percent reduction in the proposed penalties, from 

$7,355.00 to $735.50, was found acceptable. 

Davis III and IV also reflect very major reductions, 

from $3,263.00 to $326.30, and $11,684.00 to $1,640.00, 

respectively. The emphasis in those dockets is on assuring 

Davis' continuing its mining operations, despite (e.g.) in 

the most recently settled docket (Davis IV), a finding of 

sixty-nine violations, of which forty-seven were admittedly 

"serious." 

Of more current and comparative interest, in the context 

of this Commission's review,is an (unreviewed) decision of 

January 10, 1980, in which Judge Joseph B. Kennedy approved 

a settlement of $2,325.00 by this operator for several 

dockets in which the penalties originally proposed totalled 

$3,582.00. That settlement, which Davis agreed to--despite 

a continuing contention by this operator of financial 

stringency--reflects a reduction of only 33 percent from the 

penalties originally proposed, Davis Coal Co., Dockets Nos. 

WEVA 79-358, 359. (Davis V). 

623 
While Section llO(i) of the Act requires the Commission, 

in assessing civil monetary penalties to "consider ..• the 

effect on the operator's ability to continue in business .•• 6/" 

all of the settlements now before us, buttressed only by -

a scant record and slim fiscal documentation, including 

inter alia the expenditures by Davis for a boat, golf cart, 

and Mercedes Benz over a period of claimed extreme financial 

stress, fail to withstand even the most casual examination. 

As a minimum, it would appear to be fundamental that 

the Secretary demand, before accepting pleas of poverty made 

by this--or any other--operator, direct representations 

by the operator to the Judge, as well as to the Secretary, 

detailing its plea of poverty, and sustained by complete and 

fully audited current financial statements. Second hand 

verbal assurances from the Secretary to the Judge , as 

exemplified by these cases, are not persuasive. The burden 

of proving that the penalties proposed will have an adverse 

effect on an operator's ability to continue in business is 

obviously that of the operator. It is anomalous indeed for 

the Secretary to gratuitously accept that burden--as here 

.appears to be the case--and to me representative of a 

regressive return to the practice properly found wanting under 

the 1969 Act. 

Even more disturbing is the Secretary's none too subtle 

suggestion in these cases--and the dockets before Judge 

Kennedy (suprah--that his agreement to a settlement is in 

~/Noneof the other criteria enumerated in Section llO(i) are 

in issue in the cases now before us. The parties do not 

contend that the criteria to be considered when the Secretary 

and the operator agree upon penalty settlements are in any 

way different from the criteria to be applied when penalties 

are imposed after a hearing and not as a result of agreement. 

624 
effect unreviewable and final, and that there is no objective 

standard to be applied for evaluating the appropriateness of 

the pe~alties agreed upon by him, other than Secretarial 

discretion.2/ To the contrary, the statute does not afford 

the Commission or its Judges--much less the Secretary-~the luxury 

of merely rubber stamping the parties' agreement to mutually 

satisfactory penalties. Indeed, the legislative history of 

the 1977 Act has made clear the public interest involved in 

the imposition of penalties.mandated by the Act. 

In constructing the 1977 Act, Congress paid significant 

attention to penalties, noting its dissatisfaction with the 

low settlements of penalties under the 1969 Coal Act. 

Section llO(k)~/ was therefore made a part of the 1977 Act, 

in order that penalties, mandatory under the 1977 Act, would 

not be compromised, mitigated or settled except with the 

approval of the Commission. 

As detailed in the Senate Report, the Congress stated: 

"In short, the purpose of a civil penalty is to 

induce those officials responsible for the operation 

of a mine to comply with the Act and its standards." 

"To be successful in the objective of including 

(inducing) effective and meaningful compliance, 

a penalty should be of an amount which is sufficient 

to make it more economical for an operator to comply 

with the Act's requirements than it is to pay the 

penalties assessed and continue to operate while not 

in compliance." 

"In overseeing the enforcement of the (1969) Coal Act 

the Committee has found that civil penalty assessments 

are generally too low, ..• the effect of the current 

enforcement is to eliminate to a considerable extent 

the inducement to comply with the Act or the standards, 

which was the intention of the civil penalty system." 

?_/"In the judgment of the parties and the administrative law 

judge, as a result of the company's financial condition, a 

10 percent penalty will deter Davis from future violations 

as much as a more substantial penalty would deter another 

company." (Secretary's Brief on review, served November 13, 

1979). (Emphasis added). 

8/"No proposed penalty which has 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." 

625 
"The Committee strongly feels that the purpose of 

civil penalties, convincing operators to comply with 

the Act's requirements, is best served when the process 

by which these penalties are assessed and collected is 

carried out in public, where miners and their representatives, as well as the Congress and other interested 

parties, can fully observe the process. 

"To remedy this situation, Section 111(1) provides that 

a penalty once proposed and contested before the Commission may not be compromised except with the approval 

of the Commission .... By imposing these requirements 

the Committee intends to assure that the abuses involve 

in the unwarranted lowering of penalties as a result of 

off-the-record negotiations are avoided. It is intended 

that the Commission and the Courts will assure that the 

public interest is adequately protected before approval 

of any reduction in penaltie~" [S. Rep. at 41-45, 1977 

Legis. Hist. at 629-633; emphasis added.] 

The Act's penalty provisions are therefore best summarized 

as requiring penalties in such amounts as will induce compliance 

with the Act, by a process in which penalties are subject to 

the full scrutiny of all interested parties, to assure 

protection of ~he public's interest in the imposition of 

penalties sufficient to deter future violations. In order 

that this be accomplished, the Commission is required to 

approve the penalties imposed. 

While ~either the Act nor the legislative history is as 

specific as might be wished in guiding the Commission in 

fulfilling this statutory responsibility, it is impossible 

when, as here, the record is grossly inadequate. Nor are 

these dockets--unfortunately--unique in their deficiencies.~/ 

9/See for example, Bethlehem Steel Corp., PENN 79-100-M, and 

- Itmann Coal Co., HOPE 79-188-P, in which the history of 

previous violations of the operator neither appear in the 

case records nor in the (respective) motions of the Secretary 

seeking settlement approvals. In King Coal Co., KENT 79-196, 

197, the record is silent as to whether the nineteen citations 

therein are being settled for particular individual amounts, 

in full, at a fixed percentage, or without penalty. 

626 
If the record predicates necessary to our penalty 

approval role are absent from the record below, clearly 

neither we nor our Judges can meet our statutory responsibilities. It would not seem unduly difficult or burdensome 

for the Secretary to detail the factual bases on which 

approval for penalty settlements are founded.10/ Absent 

this information, meaningful review and evaluation of penalties 

cannot be had, nor their "appropriateness" determined as 

required by the Act • .!1:./ 

The basic test is therefore whether the penalty will 

deter future violations, and is consequently "appropriate." 

In making that determination, the only statutory source 

providing criteria for review of approval of penalties is 

Section llO(i) of the Act and the six factors enumerated 

therein. It is to these that the Commission, and its Judges, 

must turn in considering penalty proceedings under the Act. 

To the extent that the Act is silent, or imprecise, resort 

must be had to the legislative history. 

There is no doubt that the Congress has directed the 

Commission toward a more active role in overseeing the 

penalty settlement process than was the case under the 1969 

Act. It was unwilling to entrust to the Secretary alone the 

protection of the public interest in penalty settlements. 

(Section llO{k), S. Rep. at 45; 1977 Legis. Hist. at 633, 

supra). 

10/Indeed, I strongly suspect some of our Judges are at least 

as troubled as I by the current dearth of data presented 

to them in penalty proceedings. Kaiser Aluminum & Chemical 

Corp., CENT 79-46-M, Republic Steel Corp., PITT 78-424-P~ 

Biue Rock Industries, WILK 79-170-PM, and see Davis Coal, 

WEVA 79-358, 359. 

11/See also the Commission's perman~nt Rules of Procedure 

- (effective July 30, 1979) (Rule 2700.30{c). " ... Any order 

by the Judge approving a proposed settlement shall be fully 

supported by the record. In this regard, due consideration 

and discussion thereof, shall be given to the six statutory 

criteria set forth in Section llO(i) of the Act." (Emphas~s 

added). 

627 
Indeed~ where a tribunal before which a case is pending 

is required to approve a settlement to protect either the 

public interest or some special private interest, some active 

inquiry is usual. See 9 Wright and Miller, Federal Practice 

and Procedure: Civil §2363 at 153, 160 (discussing F.~. Civ.P. 

4l(a)(l)). 

The Supreme Court in a bankruptcy reorganization 

settlement has also held that the statutory requirement 

that reorganization plans be "fair and equitable" applies 

to approvals of settlements of reorganization matters as 

well as to litigated reorganizations. To satisfy this 

requirement, the bankruptcy judge must apprise himself of 

all facts necessary for an intelligent and objective opinion 

of the probabilities of ultimate success should the claim 

be litigated, as well as the expense, complexity and duration 

of any litigation. "Basic to this process in every instance, 

of course, is the need to compare the terms of the compromise 

with the likely rewards of litigation", and, as emphasized 

by the Court: 

"[i]t is essential, however, that a reviewing court 

have some basis for distinguishing between wellreasoned conclusions arrived at after a comprehensive 

consideration of all relevant factors, and mere boilerplate approval phrased in appropriate language but 

unsupported by evaluation of the facts or analysis 

of the law." [Protective Committee of Independent 

Shareholders of TMT Trailer Ferry, Inc. v. Anderson, 

390 U.S. 414, 424, 434 (1967).J 

These decisions strongly suggest that the Judges and this 

Commission do not meet the mandate of our Act by merely .E...E.£. 

forma acceptance of the parties verbal, unconsidered and 

thinly supported agreement to mutually acceptable amounts, 

arrived at without satisfying the six statutory criter~a set 

forth in Section llO(i). 

Whatever the Commission's role may be, it--and its 

Judges--must at least have before them for purposes of 

meaningful evaluation or appellate approval of penalties, 

factually support~ve case history. The mandate of the Act 

is not met by general decisional declarations, otherwise 

unsupported, that "I find no reason to challenge MSHA's 

position." or, "There is no indication that either party was 

coerced or fraudently induced into the accord."1J:._/ 

1l/Rex Alton and Company, LAKE 79-28-M; Ranger Fuel Corp., 

HOPE 78-743-P. 

628 
! fortiorj, similar conclusory generalizations not set 

forth in decisions but app~aring only in motions made to the 

Judge below, are even less compelling or entitled to 

acceptance, particularly in view of the strong public interest 

in open and public penalty assessments, so forcefully endorsed 

by the Congress. (S. Rep. at 45; Legis. Hist. at 633, supra). 

Lastly, when contentions made are unsupported by the 

record, particularly with reference to those Section llO(i) 

criteria most readily secured and accessible for documentation and 

inclusion in the decision of the Judge (e.g., the operator's 

history of previous violations; or financial data--as here--

claimed as buttressing for the possible effect on the operator's 

ability to continue in business), no justification is apparent 

for the Sec~etary's failure to assemble the necessary facts for 

incorporation by the Judge in his decision fixing penalties. 

In the instant cases, I would therefore find the absence 

of audited financial data to constitute a failure of proof, 

and insufficient under the Act to justify the settlements 

accepted by the Secretary. Whether further documentation 

might indeed verify that the settlements here agreed to are 

appropriate--because of "the effect on the operator's ability 

to continue in business"--on the record presented, I am unable 

to determine. Nor do I believe the Judges below were able to 

determine whether the penalties imposed would serve as 

deterrents to future violations. This operator's large history r . 

of prior violations, and erratic financial and operational 

record, provide no basis for confidence that the penalties 

agreed to will serve the statutory purpose of deterring future 

violations. 

An even broader but no less compelling consideration 

should motivate all toward the procedures suggested. As 

these and other decisions make evident, penalty proceedings 

below are treated with widely varying touches. In many 

instances, the judges have been most assiduous and demanding 

when assessing or approving penalties, to ~ake certain that 

the six statutory criteria are supported by the record and 

fully discussed. (FMSHRC Rules of Procedure (Rule 2700.30(c), 

supra). In other instances we have, in my judgment, fallen 

short. 

629 
In the belief that consistency and predictability in 

the application of the law, and our Act is both desirable--

and necessary--and I am convinced, needed by those subject 

to its strictures, I believe that the Secretary, the Judges, 

and the Commission fail to meet their respective responsibilities if inconsistencies in the imposition of penalties 

are perpetuated. Mechanistic application of the law is not 

the goal, but certainty and predictability is crucial to any 

evenhanded application of the law. There must be no 

discrimination in favor of or against similarly situated 

litigants. Counsel's d~cisions, however well intentioned, 

should not be determinative in the fixing of penalties under 

this Act. The Congress, as I read the Act and its legislative 

history, has clearly expressed itself to the contrary. 

The considerations involved were well expressed by 

Judge Kennedy in his Order to Furnish Information of 

December 14, 1979, and Decision and Order Approving Settlement 

of January 10, 1980, (Davis V, supra): 

"The Regional Solicitor claims that in reviewing a 

proposed settlement the advisability of a reduction 

in proposed penalties because of adverse business 

impact need not take into account or be balanced 

against the affirmative interest in perpetuating 

only safe mining operations.l/ The logical extension 

of this position seems to be that mine safety is a 

consideration secondary to mine productivity and that 

the enforcement policy in effect is "all the safety 

consistent with production" and not "all the production 

consistent with safety." 

l/"While the Act requires that adverse business impact 

be "considered", it does not require that it be given 

controlling weight or that it cannot be outweighed by 

the countervailing interest in continuing only those 

mining operations that promote mine safety." 

" •.• the question as I see it, is whether in view of the 

pattern of unwarrantable failure violations disclosed 

the Davis mine is not a disaster waiting to happen, and, 

if so, whether it is in the public interest to encourage 

its continued operation by even a token reduction in the 

amount of the penalties warranted by its past operations." 

630 
"While Congress, directed that the impact of penalties 

on an operator's ability to continue in business be 

considered, it obviously did not intend to encourage 

the continued production of coal in a mine in such 

dire financial straits that the operator cannot p~ovide a minimal safe w~rkplace environment. In other 

words, I believe there comes a time when the seriousness of violations cannot be minimized, trivialized or 

tacitly condoned in the interest of preserving 

stockholder equity or marginal productive capacity •... " 

"I am fully sympathetic to this relatively small 

operator's financial plight, but I am also charged 

with considering the socioeconomic impact of a 

disaster at this mine on the lives and well being 

of its miners and their families. I am also persuaded 

that the spectre of unemployment is more easily 

confronted than the awesome finality of the undertaker." 

I too am deeply troubled by those matters which disturbed 

Judge Kennedy. The way to avoid penalties being imposed which 

are unfair or inequitable must be by requiring rigorous 

adherence to the statute by all concerned, with full public 

disclosure of the penalty imposition process, and a record 

which fully reflects the place of deterrence in the statutory 

scheme of the Act. I would therefore reverse and remand for 

the purpose of requiring that there be strict compliance with 

the criteria enumerated in Section llO(i) of the Act, before 

any settlement of these dockets is approved. 

,---, /) 

--·- '£) J /I - . A ~ i . .. . , --~ t· v·:'hv--

A. E. Lawson, Commissioner 

631 
Distribution 

Paul E. Pinson, Esq. 

P.O. Box 440 

Williamson, West Virginia 25661 

Winford Davis 

Davis Coal Company 

Box 427 

Kermit, West Virginia 25674 

Ronald E. Meisburg 

Thomas P. Piliero 

Judith Macaluso 

Attorneys 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Judge Charles C. Moore, Jr. 

Judge John F. Cook 

Judge Franklin P. Michels 

Administrative ~aw Judges 

Federal Mine Safety and Health Review Commission 

Skyline Tower No. 2, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

632 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 31, 1980 

SECRETARY OF LABOR, Docket Nos. BARB 78-306 through 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

SCOTIA COAL MINING COMPANY 

DECISION 

78-333 

BARB 78-609-P 

BARB 78-609-P(B) 

BARB 78-610-P 

We granted interlocutory review to determine whether the administrative law judge abused his discretion when he denied the parties' 

motion for a stay of all proceedings until completion of a trial of 

criminal charges against Scotia Coal Mining Company in federal district 

court. 

Scotia has sought Commission review of twenty-eight withdrawal 

orders, and the Secretary has sought the assessment of penalties for the 

alleged violations associated with the withdrawal orders. The 

violations are apparently alleged to have occurred in February and March 

of 1976. The withdrawal orders were issued under the Federal Coal Mine 

Health and Safety Act of 1969, 1/ in March of 1978 as a result of an 

investigation and inspection precipitated by two explosions at Scotia's 

Mine in Ovenfork, Kentucky, in March of 1976. In August of 1978, the 

Secretary of Labor initiated the penalty cases and they were consolidated with the withdrawal order cases the next month. 

On September 8, 1978, the Secretary filed a motion with the 

administrative law judge to stay proceedings during the Justice 

Department's investigation of the mine accidents. ·The judge granted a 

stay until February 1, 1979. On January 31, 1979, the Secretary filed a 

motion to continue the stay because the U.S. Attorney had informed him 

that a grand jury would be convened to investigate the Scotia disaster. 

The stay was extended until June 1, 1979; and again until July 15, 1979. 

After the grand jury handed down an indictment, the judge granted 

another extension of the stay until October 15, 1979. The judge found 

that only five of the twenty-eight administrative cases are directly 

related to the allegations in the indictment, but was "reluctantly 

persuaded" that the stay of all proceedings should be continued. He 

noted the criminal trial was expected to begin between September 15 and 

October 15, 1979. 

1./ 30 U.S.C. §801 et~· (1976) (amended 1977) ["the 1969 Act"]. 

633 
On October.10, 1979, the Secretary again moved for an extension of 

the stay. Scotia joined this motion on October 24, 1979. On October 

25, 1979, the judge issued an order staying eight of the cases, but 

returning twenty to the active trial docket. The judge first determined 

that only eight administrative cases are "factually related" to the 

criminal charges. He noted that the grand jury had completed its work 

and the administrative proceedings could not be used to assist the grand 

jury. He found that problems centering on the right to avoid selfincrimination under the Fifth Amendment will not arise in the criminal 

case since no natural persons had been indicted. The judge also stated 

that procedural devices such as particularized requests for a stay of 

discovery are available to the parties to protect their interests and 

ensure fairness of both the administrative and criminal proceedings. 

Finally, the a~ministrative law judge noted that pretrial publicity, if 

it occurred, would not necessarily be prejudicial to the criminal 

defendants. 

The parties then filed petitions for interlocutory review of the 

judge's ruling. We granted the petitions on November 30, 1979, and 

suspended all proceedings. ]:_/ 

The parties have presented several arguments that the judge abused 

his discretion. Both express concern that problems in the criminal 

proceedings could arise from pre-trial publicity. The parties fear that 

publicity stemming from the administrative cases may, if they are heard 

first, jeopardize Scotia's right to a fair criminal trial. The parties 

have overlooked that the federal district c~urts have the tools to 

mitigate any prejudicial effects of any publicity. See DeVita v. Sills, 

422 F.2d 1172 (3rd Cir. 1970). In addition, the administrative law 

judge can take preventive measures short of a complete stay. 

Both parties argue that the judge should have stayed the cases 

because differences in criminal discovery rules and Commission discovery 

rules will cause confusion, and possibly improper access to information 

by the prosecutor and defendants in the criminal case. The administrative law judge stated in his order: 

It is not apparent from the face of the charges or 

the parties' pleadings that the other 20 violations 

[those not stayed] present such an identity of issues 

and evidence with the criminal charges that any discovery problems may not, upon seasonable application 

by either party, be dealt with by the issuance of 

appropriate protective orders. 

]:_/ The judge thereafter filed a "Supplement and Errata" to his order. 

We grant Scotia's motion to strike the supplemental material. We did 

not consider that material during our interlocutory review. 

634 
It is clear from the judge's order that he carefully considered the 

points presented by the parties. Neither party at this time has offered 

any evidence of actual harm to the criminal proceedings and the judge 

stands ready to meet those problems if they do become concrete. 

Further, the parties have failed to consider the public interest in 

the expeditious resolution of penalty cases. This oversight on the 

Secretary's part is especially unfortunate, l_/ and prevents us from 

according his views the deference to which they might otherwise be 

entitled. !±_/ Congress has forcefully expressed its desire for the 

expeditious adjudication of penalty cases, and its dissatisfaction with 

the length of time between the occurrence of violations and the payment 

of penalties under the 1969 Act. 21 As the judge recognized, there is a 

substantial public interest in the expeditious determination of whether 

penalties are warranted. 

Finally, we reject the parties' contentions that the administrative 

law judge acted arbitrarily and capriciously in refusing to continue to 

stay all proceedings in the absence of circumstances substantially 

different from when he issued his stay of all cases until October 15, 

1979. The administrative law judge's order indicates he carefully 

reviewed the facts before him at the time of the motion and concluded 

that returning twenty cases to the active trial docket was appropriate 

and would not interfere with the criminal proceedings. ~/ 

l_/ The Secretary in his brief states, "The Secretary, prosecutor of 

the administrative cases, desires that the twenty-eight alleged 

violation [sic] and civil penalty cases be stayed. Balanced with this 

is Scotia's like desire to stay those cases. There are no countervailing factors balanced on the other side." (Emphasis added.) 

Br. at 12. 

!±_/ Old Ben Coal Company, 1 FMSHRC 1480, 1484-1485, 1 BNA MSHC 2177, 

2179-2180, 1979 CCH OSHD ,123, 969 (1979); and Helen Mining Company, 1 

FMSHRC 1796, 1798-1801, 1 BNA MSHC 2193, 2194-2196, 1979 CCH OSHD 

,124,045 (1979). 

21 See S. Rep. No. 95-181, 95th Cong., 1st Sess. at 15-16 (1977), 

reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 603-604 (1978).. The Senate Committee that 

drafted the bill from which the Federal Mine Safety and Health Act of 

1977 was largely derived stated that "to effectively induce compliance, 

the penalty must be paid by·the operator in reasonably close time 

proximity to the occurrence of the underlying violation." S. Rep. at 

16, 1977 Legis. Hist. at 604. 

6/ The Secretary raised an argument in his brief that was not raised 

in his petition for interlocutory rev~ew or before the judge. He 

claims that harm may come to the administrative penalty cases if all are 

not heard together. Br. at 19-26. Since he did not present this argument 

to the administrative law judge, we do not pass upon it. See Ora Mae 

Coal Co., 1 FMSHRC 1963, 1 BNA MSHC 2258, 1979 CCH OSHD ,[24,126 (1979), 

We also intimate no view whatsoever on the matter discussed in footnote 

10 of the Secretary's brief. 

635 
The administrative law judge carefully weighed the parties 

interests and the public interest. We cannot say that he abused his 

discretion and we therefore leave his order undisturbed. 

Accordingly, the case is remanded to the administrative law judge. 

Our order of November 30, 1979, suspend" g,the proceedings, is vacated. 

636 
Distribution 

Robert I. Cusick, Esq. 

Tarrant, Combs, & Bullitt 

2600 Citizens Plaza 

Louisville, KY 40202 

Thomas A. Mascolino, Esq. 

Page H. Jackson, Esq. 

Ronald E. Meisburg, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

President of Scotia Employees Assoc. 

P.O. Box 447 

Cumberland, KY 40823 

Foster D. Arnett, Esq. 

Arnett, Draper & Hagood 

United America Bank Bldg. 

Suite 1212 

Knoxville, TN 37902 

·Richard C. Ward, Esq. 

Craft, Barrett, Hayes & Ward 

P.O. Drawer 1017 

Hazard, KY 41701 

Administrative Law Judge Joseph B. Kennedy 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, VA 22041 

637 
Administrative law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

MAR 0 .4 19. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

DUVAL CORPORATION, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

~~~~~~~~~~~~~~~~~~> 

DECISION 

APPEARANCES: 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-194-M 

ASSESSMENT CONTROL NO. 02-00852-05005-F 

MINE: SIERRITA MILL 

Mildred L. Wheeler, Esq., Office of Daniel W. Teehan, Regional Solicitor, 

Office of the Solicitor, U. S. Department of Labor, 11071 Federal Building, 

450 Golden Gate Avenue, Box 36017, San Francisco, California 94102 

for Petitioner 

Walter D. Ellis, Esq., Houston, Texas, and Michael A. Lacagnina, Esq., 

Tucson, ·Arizona, for Respondent. 

Before: Judge John J. Morris 

STATEMENT OF THE CASE 

Petitioner seeks to assess a penalty against a mine operator for the activities 

of a contractor. These proceedings arise under the Federal Coal Mine Health and 

Safety Act of 1969, 30 U.S.C. §801 et~·· (amended 1977). 

ISSUE 

The single issue here centers on whether a mine operator is liable under the 

Act for the activities of an independent contractor. l./ 

J../ There is a paucity of evidence as to the exact relationship between the mine 

operator and the contractor. 

641 
FINDINGS OF FACT 

From the uncontroverted evidence, I find the following facts. 

1. Cimetta Engineering and Construction Company installed, under 

contract, a pipeline for Duval Corporation, a mine operator (Tr 9). 

2. The installation did not involve Duval employees nor any mining 

activities (Tr 27). 

3. Four Cimetta employees maneuvered pipe under three overhead power 

transmission lines (Pl, R2). 

4. While holding a steel choker, a Cimetta employee was electrocuted 

when contact was made with the power line by the Cimetta crane (BP-1). 

CONTENTIONS 

2/ . Duval argues that a finding of a violation of 30 CFR 55.12-71 - imposes 

absolute liability without fault; that such a result violates the Act, Congressional intent, and basic fairness. Further, Duval asserts the dissenting opinion 

of Commissioner Backley in Old Ben Coal Company 1/ is more logical than the 

majority opinion and Duval argues the dissenting opinion should be followed. 

2/ The cited regulation provides as follows: 

55.12-71 Mandatory. When equipment must be moved 

or operated near energized high-voltage powerlines 

(other than trolley lines) and the clearance is less 

than 10 feet, the lines shall be deenergized or 

other precautionary measures shall be taken. 

3/ Secretary of Labor, Mine Safety and Health A~ministration (MSHA) v. Old Ben Coal 

Company VINC 79-119. 

642 
Finally, Duval. contends Judges should achieve justice. In short, a Judge 

should not be bound by considerations of administrative convenience which Duval 

argues forms the basic rationale for the Commission decision in Old Ben Coal 

Company. 

CONCLUSIONS OF LAW 

The concept urged by Duval would result in the undersigned overturning a 

controlling Review Commission decision. I lack such authority. A fdilure to follow 

precedent could only result in adjudicatory chaos with as much different applicable 

law as there are individual Judges. 

It is clear that an administrative law judge must follow the rules and 

?recedent of the Commission, Secretary of Labor, Ray A. Jones vs. James Oliver et al 

~ORT 78-415, March 1979. 

On the authority of Old Ben Coal Company and other Commission cases, !!_/ I 

1ffirm the citation. 

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

following: 

ORDER 

Citation 376894 and the proposed penalty of $5,000 are affirmed. 

f/ Republic Steel Corporation IBMA 76-28, April, 1979; Kaiser Steel Corporation 

DENV 77-13-P (May 1979); Monterey Coal Company HOPE 78-469 (November 1979). 

643 
DISTRIBUTION: 

Mildred L. Wheeler, Esq., Office of Daniel W. Teehan, Regional Solicitor, 

Office of the Solicitor, U. S. Department of Labor, 11071 Federal Building, 

450 Golden Gate Avenue, Box 36017, San Francisco, California 94io2 

Walter D. Ellis, Esq., Duval Corporation, Pennzoil Place, P.O. Box 2967, 

Houston, Texas 77001 

Michael A. Lacagnina, Esq., BILBY, SHOENHAIR, WARNOCK & DOLPH, P.C., 

Ninth Floor, Vall~y National Building, 2 East Congress Street, Tucson, 

Arizona 85701 

644 
FEDERAL MINE SAFETY AND· HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520 3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6230 

MAR o S \980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. DENV 78-579-PM 

AC No. ~2-01035-05001 

El Mirage Plant No. 6 

Petitioner 

v. 

UNION ROCK AND MATERIALS CORPORATION, 

Respondent 

Appear.ance s: 

Befor.e: 

DECISION 

Malcolm R. Trifon, Esq., Trial Attorne,y, Office of the 

Solicitor, u.s. Department of Labor, ~an Francisco, 

California, for Petitioner; 

Gary Houston, Esq., Phoenix, Arizona, for Respondent. 

Judge Fauver 

Findings of Fact 

This case 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~., 

for assessment of civil penalties for alleged violations of mandatory safety 

standards. The case was heard at Rapid City, South Dakota, on August 13, 

1979. Both sides were represented by counsel. Only the Respondent has 

submitted proposed findings, conclusions and a brief. 

Having considered the record as a whole, I find that the preponderance 

of the reliable, probative, and substantial evidence establishes the 

following: · 

1. At all pertinent times, Respondent, Union Rock and Materials 

Corporation, operated a sand and gravel plant, known as the El Mirage Plant 

No. 6, in Maricopa County, Arizona, which produced sand and gravel for ~ales 

in or affecting interstate commerce. 

2. Respondent's sand and gravel plant processed material that would 

eventually be used as fill by its customers. The material would be removed 

from a riverbed, screened or sized, and stockpiled for pick up. The plant's 

-equipment ·included about 15 conveyor belts that were arranged in various 

645 
alignments (pla~s) depending on processing requirements. The length of time 

a plant would use any one alignment plan varied with the particular job. 

3. Some of the conveyors transported sand; others carried gravel. One 

of the conveyors at Respondent's wash plant was a sand reject conveyor that 

ran beneath the wash plant and caught sand as it was separated from the 

gravel passing above. 

4. The sand reject conveyor would normally be energized by conductors 

housed in the motor junction box ("J-Box") that was located on top of the 

conveyor, about 10 feet off the ground. The J-BoX' protected splices in the 

power conductors from dust, water and other foreign objects. The wires 

inside the box were well taped to prevent a short. Deterioration of the 

insulation was unlikely. 

5. Before a plant could become fully operational, a testing phase was 

required to test the belts~ rotation and alignment. During normal production, the plant would run 180 to 200 tons per hour but much less material 

(about 1 ton) would be used to test a new alignment plan. Testing one belt 

would take from 15 minutes to 1 hour, however the testing phase for the 

whole plant varied with the number of conveyor belts. Testing would not 

begin until all the belts had been set up. 

6. Except for purposes of testing, the conveyors would normally not 

be operated without guards around the tail pulleys and belt drives. When 

the belts were being aligned, the guards would normally be removed to allow 

adjustments to be made more easily. 

7. On March 16, 1978, federal inspectors Daryl McPherson and Clarence 

Ellis, accompanied by the plant superintendent, Ralph Watson, inspected 

Respondent's wash plant. Inspector McPherson observed that the V-belt drive 

on the sand reject conveyor was,unguarded, and issued a citation charging 

a violation of 30 C.F.R. § 56.14-6. The citation read in part: "A guard 

was not provided for the V-belt drive of the sand reject belt first stage. 

Sand wash plant." Only the V-belt drive on,the sand reject conveyor was 

unguarded. 

8. The cited condition was abated in 1-2 hours by installing a guard. 

9. Six to 7 days before the inspection', the plant's component parts, 

including the conveyor belts, had been moved from another area in the plant 

and were still in the process of being set up at the new location at the 

time of the inspection. The sand reject conveyor was installed about 3 days 

prior to the inspection. When the insp~ctors arrived, most of the conveyor 

belts had been runing for about 1 hour to check their rotation and alignment. 

The inspector observed that material coming off the end of the belt was 

creating a small stockpile. Although this might have indicated the plant 

was in operation, he conclud'ed that the belt was only run for test purposes • 

The plant became fully operational the following day. 

646 
10. Inspector McPherson also observed that the cover to the J-Box was 

missing, and issued a citation charging a violation of 30 C.F.R. § 56.12-32. 

The citation read in part: "The motor junction box on the first stage of 

the sand reject belt was not provided with a cover." The cited condition 

was abated in 1-2 days. 

11. The condition in Finding 10 created the possibility that one of 

the power conductors could have loosened, touched the frame of the conveyor, 

energized the whole conveyor system, and endangered anyone coming into 

contact with the system. 

12. The inspector also observed that the tail pulley of the sand belt 

was not guarded, and issued a citation charging a violation of 30 C.F.R. 

§ 56.14-1. The citation read in part: "The tail 0of the first stage of the 

sand belt was not provided with a guard to prevent persons from coming in 

contact with the tail pulley. Tail pulley is app. 4-1/2 ft. above surface 

leve 1." The condition was abated in 1-2 days • 

13. The condition in Finding 12 created a hazard that a man might be 

caught in, or fall into, the tail pulley. This area was traveled frequently 

by clean-up men and maintenance personnel. 

14. The inspector also charged Respondent with a violation of 30 C.F.R. 

§ 56.12-8. The citation read in part: "The strain relief fitting for the 

p~wer conductor feeding the screens was not being used properly. J-Box was 

mounted on the first belt feeding the dry plant." The inspector observed 

that the large insulation with strain relief clamps around it was about 

5 feet long and hanging loosely, leaving three insulated wires hanging in 

the strain relief. 

15. The inspector believed the relief cable had been slackened to 

allow the conveyor to match up with the wash plant. The inspector's statement read in part: "The plant was installed recently and the 

electrician pulled the wire out of the relief clamp. A proper check should 

have been made before energizing the equipment." 

16. The inspector believed that vibrations in the plant could have 

caused the cable retention to loosen allowing one of the power conductors 

to become jarred loose in the junction box. This could have caused the 

splices on the power conductors to separate, resulting in energizing the 

conveyor system and endangering anyone coming into contact with it. 

17. At the time of the inspection, the wire was not energized and 

served no function; instead of power going from the generator to the motor 

by way of the junction box, it came directly from the generator van switch 

box to the motor. This was considered a more efficient and practical way 

of providing power. The alternative was to string an extra wire, 

about 60 feet long, to the J-Box. 

18. The electrician, Lee Graybill, abated the condition by placing 

the power conductor into the strain relief clamp. 

647 
19. The company's safety program had been in existence since 1962. 

That program consisted of having monthly supervisors' safety meetings; 

annual safety meetings; safety committee meetings twice a month; and safety 

talks at least once per week by the safety foreman. There was also two-way 

radio communication when radio safety bulletins were put on at least two or 

three times a day. 

20. The last accident resulting in lost man-hours was in July, 1974. 

Prior to the citations, the company had gone 3 million hours straight without 

a mishap. 

DISCUSSION 

Citation Nos. 371141 and 371142 

On March 16, 1978, Inspector McPherson charged Respondent with a violation of 30 C.F.R. § 56.14-6, which proyides: "Mandatory. Except when testing the machinery, guards shall be securely in place while machinery is 

being operated." The inspector observed that a guard was not provided on 

the V-belt drive of the sand reject conveyor in Respondent's wash plant. 

The inspector also charged Respondent with a violation of 30 C.F.R. 

§ 56.12-32, which provides: "Mandatory. Inspection and cover plates on 

electrical equipment and junction boxes shall be kept in place at all times 

except during testing or repairs." He observed that the motor junction box 

cover on the first stage of the sand reject conveyor was missing. 

The basic issue as to both of these citations is whether the testing 

exceptions to the mandatory requirements of each of the cited standards 

apply in this case. 

The Respondent contends that at the time of the inspection, the plant 

was in a testing phase. Only 6 to 7 days earlier, the plant's 15 conveyor 

belts were moved from another location at the plant and were still in the 

process of being set up. Respondent states that when the inspectors arrived, 

most of the conveyor belts had been operating only about 1 hour just to test 

their rotation and alignment. No material had been processed during the 

testing phase, although some material had been run for purposes of testing. 

Although the Secretary has not responded to these contentions, the 

inspector did state that he had reason to believe the plant was processing 

material. His conclusion is supported only by the small amount of material 

he saw stockpiled at the end of one of the belts and by his opinion that it 

would be uneconomical to test for more than 3 days. 

I find that the plain meaning of the provision in section 56.14-5, 

"[e]xcept when testing machinery," refers to the testing or repairing of the 

equipment's mechanical parts due to a malfunction. Respondent asserts that 

the exception to the requirement for guards applies when a whole plant is in 

a testing phase designed to align the conveyor belts and to check their 

648 
rotation. I conlcude that "testing machinery" is not synonomous with a 

"testing phase," because the first situation involves curing a mechanical 

malfunction while the second involves assuring the smooth running of the 

complete operation. In the latter instance, which could last as long as 

6 to 7 days, the moving parts of the conveyor would be in operation creating 

a hazard which the safety standard is designed to prevent. However, when 

a piece of equipment is malfunctioning, the guards would have to be removed 

only for short periods of time while making the repairs. 

I reach the same. conclusion as to the part of section 56.12-32 that 

reads "except during testing or repairs." "Testing or repairs" does not refer 

to the testing phase of setting up a plant, but to testing the electrical 

connections or to•splicing the wires. 

Citation No. 371143 

During the same inspection, Inspector McPherson charged Respondent with 

a violation of 30 C.F.R. § 56.14-1, which provides: "Mandatory. Gears; 

sprockets; chains; drive, head, tail, and takeup pulleys; flywheels; 

couplings; shafts, sawblades; fan inlets; and similar exposed moving machine 

parts ·which may be contacted by persons, and which may cause injury to persons, shall be guarded." The inspector observed that' the tail pulley of the 

first stage of the sand belt conveyor was not provided with a guard. 

Respondent asserts that since 30 C.F.R. § 56.14-1 contains an exception 

for "testing," and since both section 56.14-6 and section 56.14-1 fall under 

the same heading, "Use of Equipment," the exception also applies to the 

latter safety standard which is the subject citation. I conclude that the 

exception is neither expressly included nor implied in section 56.14-1. 

Citation No. 371144 

Inspector McPherson also charged Respondent with a violation of 30 C.F.R. 

§ 56.12-8, which provides: 

Mandatory. 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 inspector observed that the strain relief fitting for the power conductor feeding the screens was not being used properly. 

Respondent contends that the loose power conductor.observed by the 

inspector was neither energized nor intended to become energized; and that 

since the conveyors were relocated, the conductor served no function. 

649 
Respondent contends that the safety standards included under section 56.12 

are only applicable when the cables are subject to being energized or are 

in fact energized. 

I conclude that a reasonable interpretation of section 56.12-8 requires 

a finding that the power conductors be capable of cond~cting electricity 

before the standard can apply. Respondent demonstrated that an alternative 

method of energizing the screens was being used, making the loose wire 

observed by the inspector nonfunctional. Under these circumstancs, I find 

that Respondent did not violate section 56.12-8 as alleged in the citation. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over the parties and the 

subject matter of the above proceeding. 

2. Respondent violated 30 C.F.R. § 56.14-6 by failing to provide guards 

on the V-belt as alleged in Citation No. 371141. Based upon the statutory 

criteria for assessing a civil penalty for a violation of a mandatory safety 

standard, Respondent is assessed a penalty of $28 for this violation. 

3. Respondent violated 30 C.F.R. § 56.12-32 by failing to provide a 

cover on the motor junction box as alleged in Citation No. 371142. Based 

upon the statutory criteria for assessing a civil penalty for a violation of 

a mandatory safety standard, Respondent is assessed a penalty of $30 for this 

violation. 

4. Respondent violated 30 C.F.R. § 56.14-1 by failing to provide a 

guard around the tail pulley as alleged in Citation No. 371143. Based upon 

the statutory criteria for assessing a civil penalty for a violation of a 

mandatory safety standard, Respondent is assessed a penalty of $90 for this 

violation. 

5. Petitioner did not meet its burden of proving a violation as alleged 

in Citation No. 371144. 

ORDER 

WHEREFORE IT IS ORDERED that (1) the charge based on Citation No. 371144 

is DISMISSED, and (2) Union Rock and Materials Corporation shall pay the 

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

of $148 within 30 days from the date of this decision. 

WILLIAM FAUVER, .JUDGE 

650'. 
Distribution: 

Malcom Trifon, Esq., Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 11071 Federal Building, 450 Golden Gate 

Avenue, San Francisco, CA 94102 (Certified Mail) 

Gary w. Houston, Esq., Counsel for Union Rock and Materials Corporation, 

1000 Kiewit Plaza, Omaha, NE 68131 (Certified Mail) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR O 5 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 79-52 

Assessment Control 

No. 15-04053-03004 V 

v. 

Mine No. LA-6 

RITA COAL COMPANY, 

Respondent 

DECISION 

Appearances: William F. Taylor, Esq., Office of the Solicitor, U.S. 

Before: 

Department of Labor, for Petitioner; 

Lee F. Feinberg, Esq., Spilman, Thomas, Battle & 

Klostermeyer, Charleston, West Virginia, and 

William T. Watson, Esq., Pikeville, Kentucky, 

for Respondent. 

Administrative Law Judge Steffey 

Pursuant to notice of hearing issued September 7, 1979, as amended, 

October 22, 1979, a hearing in the above-entitled proceeding was held on 

November 8, 1979, in Pikeville, Kentucky, under section 105(d) of the Federal 

Mine Safety and Health Act of 1977. 

Upon completion of the evidence presented by the parties, I rendered the 

bench decision which is reproduced below (Tr. 218-228): 

This proceeding involves a petition for an assessment of penalty filed on June 15, 1979, by the Secretary 

of Labor, alleging a violation of 30 CFR 75.200 by Rita 

Coal Company. 

The issues, of course, in any civil penalty case 

are whether a violation occurred, and if so, what civil 

penalty should be assessed under the six criteria set 

forth in Section llO(i) of the Federal Mine Safety and 

Health Act of 1977. 

The first point that has to be determined is 

whether a violation of Section 75.200 occurred. The 

violation that was alleged was set forth in Order of 

Withdrawal No, 72701 dated October 31, 1978, alleging 

that the roof control plan was not being followed, and 

that safety posts had not been installed in the working 

face of the number 8 pillar block before roof bolting 

had started. 

652 
MSHA v. Rita Coal Company, Docket No. KENT 79-52 

I find that a violation of Section 7 5. 200 

occurred, because respondent's roof control plan 

provides in Sketch A of the roof control plan, which 

is Exhibit 2 in this proceeding, that safety posts 

shall be set as shown on that sketch before roof 

bolting is started. 

Based on certain credibility determinations that I 

shall hereinafter explain, I find that the safety posts 

were not installed, and, therefore, that there was a 

violation of Section 75.200. 

Perhaps before explaining the basis for my finding, 

I should indicate that I am denying the Motion to Dismiss 

made by respondent on the ground that I believe the 

inspector heard enough and saw enough to support his 

finding that violation of Section 75.200 had occurred. 

We have testimony in the case by the inspector 

that he heard the sound of a roof bolting machine installing bolts as he came into the mine, and we have his 

testimony that when he was close to the working face, 

he observed the section foreman make a movement toward 

the men who were working in the face area, and by moving 

his cap light back and forth, give a signal that they 

should stop working. At that signal, the inspector 

states that the roof bolting machine was turned off, 

and when the inspector got to the face area, he found 

that no safety posts had been set as required by the 

roof control plan. 

Respondent'~ section foreman testified that it was 

his practice always to signal the men on his section 

to stop working when an inspector appeared, so that the 

inspector, at his option, could watch whatever activities 

he wished to see performed. The section foreman also 

stated that the men satisfactorily explained to him, that 

is the roof bolter and his helper, their reasons for not 

having safety posts erected at the time the inspector 

came upon the scene. 

The sectio~ foreman's explanation was that the 

roof bolter had observed some loose draw rock on the 

left side of the entry, and that he was in the process 

of barring that down when the inspector arrived, and 

although he had set safety posts before he started roof 

bolting, he took them down in order that he might get 

the loose rock down before finishing the installation 

of the roof bolts. 

The roof bolter himself testified that he had 

installed two roof bolts on the left side, which 

653 
MSHA v. Rita Coal Company, Docket No. KENT 79-52 

on the sketch in the exhibit 2, sketch A, would be 

roof bolts 1 and 2. 

The roof bolter stated that he had then decided 

to bar down the loose roof which was on the left side, 

between those two roof bolts, and the working face. 

Before he did that, he took down the temporary supports 

which he had already put up. 

After listening to the testimony of the roof 

bolter and the section foreman, I conclude that there are 

a number of discrepancies in their testimony, which 

causes me to give their testimony less credibility than 

I do that of the inspector. 

Among other things that disturbed me about the [in-] 

consistency of their testimony, was the fact that the 

section foreman, for example, said that the temporary 

supports were lying beside the roof bolting machine, 

whereas the roof bolter, who was there and who was 

doing the work, stated that two of the temporary 

supports were on the machine, and that the third one 

was being put on the machine when the inspector got 

there. The inspector had testified that the temporary 

supports were on the roof bolting machine. I find that 

the section -- that the roof bolter is consistent with 

the inspector's testimony, in that respect. 

The other aspect of the roof bolter's testimony, 

which is inconsistent with that of his section foreman, 

is that the section foreman said that there was a lot 

of material on the left side of the entry, it was too 

thick for the roof bolting machine to go up over it· and 

bolt, whereas the inspector said that there was very 

little material on the floor, on the left side, and the 

roof bolter agreed with the {nspector on that. 

Additionally, the roof bolter stated that he had 

decided to knock out three temporary supports in order 

to bar down some loose material which was located solely 

on the left side of the entry, and inby the two roof 

bolts which he had already installed. 

Now, the roof bolter had indicated it was always 

his practice to follow the roof control plan precisely, 

and that he always installed the roof bolts from left 

to right. Now, that being the case, there was no reason 

for him to be worrying about loose roof inby the first 

and second roof bolts which he had already installed, 

until he had already installed roof bolts three and 

four, because he didn't indicate that there was any 

654 
MSHA v. Rita Coal Company, Docket No. KENT 79-52 

loose roof at all over at the place where roof bolts 

three and four would have been installed. 

Therefore, there is no reason for him to have 

taken down those temporary supports until after he had 

put in roof bolts 3 and 4. Then at that point he would 

have been moving forward and could have been worried 

about taking down loose roof, if ·there· had.been any.in 

advance of the roof bolts that he would have put in 

Nos. 5, 6, 7, and 8. 

The roof bolter stated that it was his practice to 

sound the roof when he was still under supported roof 

in order to determine whether to bar down any loose roof. 

Consequently, it is my conclusion that the roof 

bolter never had put up any temporary supports, and 

had put in two bolts without any temporary supports, 

and that when the inspector came on the scene, he 

endeavored to justify the fact that he had not put up 

any temporary supports. 

Consequently, those are the primary reasons for 

my belief that the inspector's testimony is entitled 

to a greater amount of weight than the section foreman's 

or the roof bolter's. 

Having found that a violation occurred, it is 

necessary now to consider the six criteria. It has been 

my consistent practice to consider from the standpoint 

of history of pre~ious violations, whether an operator 

has violated a given section of a regulation a number 

of times, or any time prior to the violation alleged 

in the case before me. 

In this instance, the parties stipulated before 

the hearing began that the respondent had not previously 

violated Section 75.200 except for a couple of violations 

which were obser~ed by the inspector during the same 

inspection which was here involved. 

In light of the fact that those violations were 

practically simultaneous with the one that is here before 

me, and, ther~fore, would have given the operator no 

opportunity to perhaps prevent additional violations 

before the one before me was observed, I find that there 

is no history of previous violations which should be 

taken into consideration. 

Consequently, the penalty will neither be increased 

nor dec.reased under that criterion. The question of the 

655 
MSHA v. Rita Coal Company, Docket No. KENT 79-52 

operator's size is also the subject of some stipulations 

by the parties. First of all in 1978, the No. 3 or 

LA-6 Mine here involved, produced about 25,000 tons of coal, 

which if divided by 250 days of production would only 

be about 100 tons a day. According to the testimony of 

Mr. Childress, the Rita Coal Company is owned by Russell 

Fork Company, and that entire group of companies, in 

1978 produced 256,000 tons of coal, which would amount 

to about 1,024 tons per day. 

The evidence also indicates that the mine which 

is before me today, or in this proceeding, is not now 

in operation because of the simple economic fact that 

the present market is not sufficient to justify the 

costs which the company has recently experienced for 

producing coal. The fact that· Russell Fork is in turn 

owned by A.T. Massey enables the Rita group of mines to 

hold onto their reserves at about a loss of $100,000 a 

month, in hopes that the market will someday be profitable 

enough that it can resume coal operations. 

Since the situation as it now exists is that A.T. 

Massey is having to pick up the tab for all of the 

holding operations, that is holding onto the reserves 

and keeping the mines in such a fashion that they could 

be operated again, it is quite obvious that we have an 

uneconomic enterprise before us. While I agree with 

Mr. Taylor and Mr. Feinberg also, as indicated, that 

A.T. Massey would really pay any penalty that might be 

assessed, I still think that under the criterion of 

whether the payment of penalties would cause the operator 

to discontinue in business, that some weight should be 

given to the fact that we are c.onfronted here with an 

uneconomic situation, and also, I should give some 

consideration to the fact that even in 1978 when the 

instant violation occurred, Rita Coal Company experienced a loss of between $400,000 and $700,000. 

So, although I find that this is a moderate size 

business, and while I do not think that any one penalty 

would cause A.T. Massey to cease holding onto its 

mines in the hope that it might, within a reasonable 

period, have a profitable operation, again, I still 

am giving some weight to the fact that at this point in 

time it is not a -- certainly a remunerative operation. 

It was stipulated, I believe, and if it were not, 

it is certainly shown by the short time that it took the 

operator to comply with the section here involved, after 

it was noted by the inspector, the evidence indicates 

that there was at least a normal good faith effort to 

656 
MSHA v. Rita Coal Company, Docket No. KENT 79-52 

achieve compliance, so that factor should also be 

considered in assessing a penalty. 

The two remaining criteria which are tp be considered 

are first as to how serious the violation was, and on that, 

the inspector considers the failure to install temporary 

supports to be a serious violation; on the other hand, 

the inspector did not see any loose roof on the right 

side where the bolts were still to be installed, 

and, consequently, I believe that the violation was not 

of an extreme gravity, and in other words, it is not 

of such a hazardous nature that I feel that a really 

large penalty would be required. 

From the standpoint of negligence, I have constantly 

run into situations where I have every reason to 

believe and find that much to my amazement that the very 

men who are doing the installation of roof bolts are 

failing to put in the temporary supports. I have even 

had cases involving fatalities in which the very men who 

were supposed to be putting up temporary supports, didn't 

do it. And they were killed, simply because they didn't 

put up supports. 

This to me, is always astounding, but it seems to 

continue, so I find that it is gross negligence for 

men to work in a coal mine and fail to take care_of 

themselves properly, and that is what section foremen 

are supposed to do, and yet this section foreman was 

out worrying about the the fact that there was some 

moisture on the section, and wasn't even around to 

take a methane check before this roof bolting machine 

began to operate. So, he didn't know what his men were 

doing, and I think that was gross negligence on his part. 

If it were not for the fact that I have found that 

this is an uneconomic enterprise at the moment, I would 

be inclined to assess a very large penalty, but taking 

that factor into consideration, I believe that a penalty 

of $1,000 is reasonable in the circumstances. 

Ultimate Findings and Conclusions 

(1) Respondent should be assessed a civil penalty of $1,000.00 for 

the violation of section 75.200 cited in Order of Withdrawal No. 72701 

dated October 31, 1978. 

(2) Respondent, as the operator of record of the LA-6 Mine, is subject to the Act and to the regulations promulgated thereunder. 

657 
MSHA v. Rita Coal Company, Docket No. KENT 79-52 

WHEREFORE, it is ordered: 

Respondent, within 30 days from the date of this decision, shall pay 

a civil penalty of $1,000.00 for the violation described in paragraph (1) 

above. 

Distr.ibution: 

~C.931P#rr Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

William F. Taylor, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Lee F. Feinberg, Esq., Attorney for Rita Coal Company, Spilman, Thomas, 

Battle & Klostermeyer, P.O. Box 273, Charleston, WV 25321 (Certified 

Mail) 

William T. Watson, Esq., Counsel for Rita Coal Company, P.O. Box 2805, 

Pikeville, KY 41501 .<certified Mail) 

658 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2; lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

PEABODY COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

WR 1 

Contestant 

Respondent 

UNITED MINE WORKERS OF AMERICA 

(UMWA), 

Respondent 

191) 

Contest of Order of Withdrawal 

Docket No. CENT 79-335-R 

Order No. 793364 

July 23, 1979 

Tebo Surface Mine 

DECISION 

Appearances: Thomas R. Gallagher, Esq., St. Louis, Missouri, for Contestant; 

Inga Watkins, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Respondent MSHA; 

Mary Lu Jordan, Esq., Washington, D.C., for Respondent UMWA. 

Before: Judge Melick 

This case is before me under section lOS(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act), 30 u.s.c. § 801 .!:! ~··upon the application of Peabody Coal Company (Peabody) to contest an order of withdrawal 

issued by the Mine Safety and Health Administration (MSHA) under section 

104(d)(l) of the Act.];_/ A hearing was held on November 7 and 8, 1979, in 

Kansas City, Missouri. 

J./ Section 104(d)(l) of the 1977 Act provides 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 the 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 

659 
The substantive issue is whether there is sufficient evidence to support 

the validity of Order of Withdrawal No. 793364 issued to Peabody on August 2, 

1979. Peabody alleges that the order was invalid because there was insufficient evidence of the violation charged in the order (mandatory standard 

30 C.F.R. § 77.404(a)) and that in any event there was insufficient evidence 

of unwarrantable failure on the part of Peabody to comply with that standard. 

The parties stipulated in this case as to the existence of a valid underlying section 104(d)(l) citation; a condition precedent to the issuance of 

a withdrawal order under section 104(d)(l). 

The order in this case was triggered by an alleged violation of mandatory standard 30 C.F.R. § 77.404(a) in that "the transmission [in the No. 10 

D-9 bulldozer] would not go into gear at times and whe.n it would it would 

lurch forward or backward, particularly when pushing down an incline at the 

reclamation site." The cited standard requires that "[m]obile 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." 

MSHA' s case is b·ased primarily on the testimony of its inspector, James 

Jury. I find his testimony to be completely credible and the significant 

portions of his testimony to be uncontradicted. Jury arrived at Peabody's 

Tebo Surface Mine for a routine inspection on the morning of August 2, 1979. 

He was approached by bulldozer operator Eldon Prettyman who reported that 

the No. 10 D-9 bulldozer had transmission problems. It would not shift properly, would take a long time to go into gear, and when it went into gear, 

would lurch. Jury then received what is commonly known as a "103(g)( 2)" complaint 2/ regarding alleged .safety defects in the No. 10 bulldozer including, 

inter alia, a complaint that the transmission was not working properly. 

Inspecting the subject bulldozer in the presence of Peabody representatives 

Mike Cain, Owen Suhr, and Darrel Montgomery, and union representatives Jack 

Sheppard and Elmer Robertson, .Jury found no safety violations. Norman 

fn. 1 (continued) 

citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation 

to be also caused by an unwarrantable 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 withdrawn from, and to be prohibited 

from entering, such area until an authorized representative of the Secretary determines that such violation has been abated." 

2/ Section 103(g)(2) of the 1977 Act provides in relevant part as follows: 

- ''Prior to or during any inspectfon of a coal or other mine, any representative of miners or a miner in the case of a coal or other mine where 

there is no such representative, may notify the Secretary or any representative of the Secretary responsible for conducting the inspection, in writing, of any violation of this Act or of any imminent danger which he has 

reason to believe exists in such mine***·" 

660 
Engelhart, the No. 10 bulldozer operator at that time, then complained to 

Jury that "it would not go into gear and it would lurch; and when you are 

on an incline changing from one gear to another, it would take a long time 

for it to go into gear [and] in the meantime, the machine would keep moving." 

Suhr then operated the machine in a brief demonstration on level ground but 

no problems were evident. Jury observed, however, that the complaints had 

been primarily directed to operations on steep inclines. 

There is some disagreement over the exact sequence of events that 

followed, however, I do not consider them to be material. Jury recalled that 

he next went to the maintenance shop to check the log books and maintenance 

records for the suspect bulldozer. Jury found log entries indicating that 

the bulldozer had been in the shop on at least two different occasions for 

transmis·sion work and that it had been returned to service. Maintenance logs 

for the subject bulldozer were introduced in evidence and show that complaints 

had in fact been made during the months of May, June, and July 1979, about 

transmission shifting difficulties. These entries were not crossed out or 

stricken in accordance with company procedure for completion of work, thus 

indicating that the repairs had not been performed. Suhr, being in charge 

of the shop and these shop procedures, should therefore have known of the 

complaints and that the repairs had not been performed. I therefore give 

no credence to his testimony that he thought the problems had been corrected. 

After examining the maintenance records, Jury consulted briefly with his 

supervisor by telephone and thereupon issued the order at bar. 

Jury explained at the hearing some of the safety hazards involved in 

operating a bulldozer in the condition in which the No. 10 was reported 

to him: 

When you are pushing down an incline, pushing dirt into 

a pit or anywhere where you are on an incline, pushing into 

a hole, when you get a blade full of dirt, you have a matter 

of seconds to change directions or go into the pit. If your 

transmission is faulty, the bulldozer is still moving while 

you are trying to change gears. 

Also, when a bulldozer is being us~d to push a scraper 

or whatever you have, to one approaching the equipment you 

are going to push, you have to go up to this slowly rather 

than hitting them hard; and if the transmission is lurching you go off slowly and it won't go into gear and it 

lurches forward, you are going to be hitting the scraper or 

truck harder than you should. Plus, if there is anyone in 

front of you, there's a possibility of running into someone or damaging other equipment or machines. 

Six bulldozer operators from the Tebo Surface Mine also testified at 

the hearing about their experience in operating the No. 10 bulldozer with 

its defective transmission. They all described various problems generally 

described as diff~culty changing gears, hesitation after the gears had 

661 
become engaged, and unexpected movement. Their testimony, in significant 

respects, is uncontradicted and is fully corroborative of the inspector's 

testimony. 

Norman Engelhart, who was operating the suspect bulldozer when Jury 

made his inspection, testified that it was unpredictable--"[o]ne time it 

might go into gear and the next time possibly not, and if it did go into 

gear, there was a chance it would lung_e foward." The problem was described 

as hesitation after shifting gears and not knowing when the gears would 

engage. He recalled that on August 1st or 2nd he was pulling a pump with 

the bulldozer and was afraid that the cable might snap because of the 

unexpected movement. Engelhart reported these problems to company foreman Darrel Montgomery in May and again when he was pulling the pump. He 

explained that the transmission defects affected the ability to rapidly 

engage reverse gear so that it was also likely that you would go over 

the highwall with the dirt. He explained that the brakes alone would not 

pull the machine to safety in such a situation. 

Joseph Marme was pushing scrapers and loading dirt with the suspect 

bulldozer on July 31, 1979. He too had difficulties because of the hesitation. The bulldozer would not properly disengage from the scraper it was 

pushing. It could have broken the "gooseneck" of.the scraper and pushed the 

load on top of the scraper operator. 

Danny Haggart had operated the suspect bulldozer for 4 or 5 days before 

the order was issued in this case (Tr. 113). He explained that "[w]henever 

you go to change gears, there would be a hesitation in it and I would have 

to work it back and forth, from forward to reverse sometimes to get it into 

gear" (Tr. 113). Haggart recalled a situation in which he was pushing dirt 

into water and could not shift into reverse. The mud was beginning to give 

away when finally the gears e~gaged and he was able to pull out. The brakes 

did not prevent him from sinking since the dirt beneath the tracks was also 

sliding into 'the water (Tr. 117). He reported the defective operation to 

his immediate supervisor, Raymond Roks, "quite a few times," but the problem 

had never been corrected. 

J. C. Young operated the suspect bulldozer for 4 hours on July 12, 1979, 

moving topsoil into a pond. He had difficulty engaging reverse gear and 

when it did engage, it jumped or hesitated. He told company official Terry 

Rassler of the problem. Eldon Prettyman also had shifting problems with the 

suspect bulldozer 2 or 3 weeks before the order was issued while pushing off 

a highwall down into a pit of water. He reported this to company official 

Happy Gibson and the reclamation foreman. 

The uncontested testimony of John Ferguson, a shop mechanic, is also 

significant in that it suggests that in spite of the known transmission problems, management returned the bulldozer to service without appropriate 

repairs. He was working on another problem with the No. 10 bulldozer in the 

latter part of July and was unable to shift it into gear. He was told to 

put the bulldozer back "on the line" after getting the track buckled up. 

It went out the next morning. 

662 
The cause of .the transmission problems became evident after it was withdrawn from service. Robert Tallenger, senior mechanic at the mine, examined 

the suspect bulldozer on August 3 and could not get it into gear. He found 

that the gears in the hydraulic pump were gaulded and prevented the pump from 

producing any pressure. After the pump was changed the transmission worked 

properly. Donald C. Potts, an experienced mechanic and service manager for 

the Fabick Tractor Company, conceded that inadequate oil pressure in the 

transmission could cause a delay or hesitation in the movement of the bulldozer until sufficient pressure was built up. This certainly could account 

for the difficulties encountered. 

In light of the foregoing evidence, I can give but little weight to the 

testimony of Michael Cain, Peabody's health and safety supervisor, denying 

that he had received any complaints about the transmission prior to 

August 2nd. I also accord little weight to the testimony of truck and 

tractor manager Gail Gustafson who reportedly checked out the withdrawn bulldozer on the morning of August 3rd. The fact that the bulldozer may have 

operated without difficulty during this 45-minute demonstration does not 

detract from the described hazards. The hazards were in fact, in my opinion, 

even greater because of the unpredictability of the problem. 

Within this framework of evidence, I have no difficulty in finding that 

Peabody was operating its No. 10 bulldozer in violation of mandatory standard 

30 C.F.R. § 77.404(a). Moreover, in light of the overwhelming evidence that 

various bulldozer operators had reported the faulty transmission problems to 

man..~gement, that the maintenance logs on the No. 10 bulldozer reflected that 

similar complaints had been made to the maintenance shop under the direct 

supervision of management and had been returned to service without repair, 

and the admissions of foremen Montgomery and Suhr that they had known of the 

transmission difficulties before the order was issued; I find that the violation was caused by a11 unwarrantable failure of the operator to comply with 

the standard. The order of wlthdrawal at bar therefore was, and is, valid. 

Peabody has during the course of this case also raised several procedural questions which I shall now dispose of. I held in this case that MSHA 

had the burden of going forward to establish a prima facie case and that 

Peabody bore the ultimate burden of proof. Peabody disagreed and contended 

that the burden of proof should lie with MSHA. The Commission's Rules of 

Procedure (29 C.F.R. § 2700.l et seq.) do not directly address this issue.· 

My determination in this regarcr-i~however, consistent with my authority 

to regulate the course of the hearing under Commission Rule 29 C.F.R. 

§ 2700.54(a)(5), 3/ and is in accord with Section 7(d) of the Administrative 

Procedure Act, 5 U .S .C. § 556(d). 4/ Cf. Zeigler Coal Company, 4 IBMA 88 

3/ 29 C.F.R. § 2700.54(a) provides that: 

"Subject to these rules, a Judge is empowered to * * * (5) Regulate 

the course of the hearing; * * *·" 

4/ Section 7(d) of the Administrative Procedure Act states, in pertinent 

part, as follows: 

663 
(1975), interpreting the former burden of proof rule of the Interior Board 

of Mine Operations Appeals in light of Section 7(d) of the Administrative 

Procedure Act. Moreover, in light of the overwhelming evidence supporting 

MSHA's case, the assignment of the burden of proof herein becomes immaterial. 

It is only when the evidence is in a state of equipoise that the burden 

becomes significant. 

Peabody has also suggested that in determining the validity of a withdrawal order issued pursuant to section 104(d)(l) of the Act, such as the 

one at bar, I may consider at the hearing only that evidence within the 

knowledge of the MSHA inspector at the time the order was issued and not evidence subsequently discovered or obtained. There is no authority for this 

proposition and I reject it. The issues before me are whether the violation 

charged in the order occurred and whether a special "unwarrantable failure" 

finding can be made. In order to make a full and fair determination of 

these issues, I must consider all admissible evidence produced at hearing. 

I observe, however, that the inspector in this case had ample credible 

information at the time he issued the withdrawal order on which to base 

that order. 

Peabody further argues that an MSHA inspector should not rely solely on 

"hearsay and third party statements" in issuing a 104(d)(l) order and cites 

the dictum of Judge Koutras in Secretary of Labor (MSHA) v. Pennsylvania 

Glass & Sand Corporation, BARB 79-108-PM (presumably at pages 19-30) as 

authority. That dictum is, in any event, inapposite to this case. Among 

other things, it dealt with a section 104(a) citation and not a section ~ 

104(d)(l) order. Moreover, Judge Koutras found an exception to his evidentiary requirements where the MSHA investigation follows a section 103(g) 

complaint, as occurred herein. Inspector Jury based his decision to issue 

the order in this case on unquestionably reliable evidence, including the 

company maintenance logs, admissions by company officials and statements by 

bulldozer operators, one of which was made in the presence of, and not denied 

by, company officials. Moreover, at hearing in t is contra t to 

Pennsylvania Glass & Sand, MSHA produced substant al e evid 

the violation and of "unwarrantable failure " 

fn. 4 (continued) '\ 

"Except as otherwise provided by statute t of a rule or 

order has the burden of proof. Any oral or dctc nee may be 

received, but the agency as a matter of policy\ all pr vide for the exclusion of irrelevant, immaterial, or unduly repetitious evi e A sanction 

may not be imposed or rule or order issued except on consi ration of the 

whole record or those parts thereof cited by a party and supported by and 

in accordance with the reliable, probative, and substantial evidence." 

664 
Distribution: 

Thomas R. Gallagher, Esq., 301 North Memorial Road, St. Louis, 

Missouri (Certified Mail) 

Inga Watkins, Esq., Office of the Solicitor, u.s. Depar.tment of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street, 

NW., Washington, DC 20005 (Certified Mail) 

665 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

MAR 7 1980 

Civil Penalty Proceedings 

Docket No. PENN 79-137 

A.O. No. 36-00809-03022V 

Newfield Mine 

REPUBLIC STEEL CORPORATION, 

Respondent 

Docket No. PENN 79-138 

A.O. No. 36-00973-03019V 

Docket No. PENN 79-139 

A.O. No. 36-00973-03022V 

Docket No. PENN 79-140 

A.O. No. 36-00973-03024V 

Docket No. PENN 80-34 

A.O. No. 36-00973-03026V 

Banning Mine 

DECISION AND ORDER 

The parties move for approval of a settlement of the captioned 

matters in the amount of $9,350.00 or 81% of the $11,500.00 initially 

assessed for the eight unwarrantable failure violations charged. 

For the reasons set forth in the parties' motions and based on 

an independent evaluation and de novo review of the circumstances, I 

find the.settlement proposed for citation/order numbers 618528, 391918, 

618446, 618427, and 618467 are in accord with the purposes and policy 

of the Act. 

On the other hand, I find the reductions proposed for citation/order 

numbers 618460 and 618436, are for the reasons set forth below 

unjustified. I further find that not only the reduction but the amount 

initially assessed for closure order number 618607 failed to take into 

account the fact that three separate and distinct violations of the 

standard cited occurred. 

666 
More specifically, an evaluation of the escapeway violation cited 

in unwarrantable· failure citation.618460 shows the amount initially 

assessed was proper and that no reduction is warranted. The mitigating 

circumstances offered, namely that an able bodied miner could squeeze 

through the 42 by 31 inch passage is insufficient to justify a reduction 

in view of the requirement that all escapeways be maintained so as to 

insure the passage at all times of disabled miners. The panic that would 

ensue and the hazard to life and limb that would be created in attempting 

to carry a disabled miner through this small opening in the event of a 

fire or explosion that created noxious gases necessitating the use of 

self-rescuers would present all the ingredients of a mine disaster. 

Furthermore, this condition was known and allowed to exist for almost 

a month before the inspector discovered it. The fact that the other 

return airway could be used would be of little use to miners trapped 

and trying to find their way out with a disabled buddy in the smoke-and 

confusion of an emergency. For these reasons, I conclude the amount 

initially assessed for this violation, $1,000.00, is warranted. 

An evaluation of the roof control violation cited in order number 

618436 shows that contrary to the parties representations the mechanic 

responsible for knocking out the temporary roof supports with a continuous 

miner was grossly negligent. Despite this, there is no claim he was 

disciplined or otherwise made aware of the seriousness of his actions or 

that the operator did not by its silence and acquiescence condone his 

flagrant disregard for safe mining practices. Unless and until compliance 

is extracted on a voluntary basis from the mine superintendent to the 

common laborer, the negligence of each or any of them must be imputed to 

the operator. In addition, the operator was independently negligent in 

failing to train the mechanic in the proper procedure for moving a 

continuous miner without knocking out temporary supports or dangering 

off the area after he did knock them out. On the basis of the record 

considered as a whole, I conclude the amount initially assessed for this 

violation, $1,500.00, is fully warranted. 

Finally, a review of the circumstances relating to closure order 

618607 shows that for a distance of 200 feet accumulations of loose coal, 

coal dust and float coal dust having the explosive potential of black 

gun powder was discovered on the floor and ribs of the 1, 2, and 4 

entries and crosscuts of the 007 section of the Banning Mine. The 2 and 

4 entries were shuttle car haulageways which presented the potential for 

an ignition source due to the presence of trailing cables. While spot 

rock dust samples were taken, no 75.403 violation was charged. Nevertheless, it is clear that three separate and distinct violations of 75.400 

were observed in three separate and distinct physical locations. Further, 

they were unwarrantable failure violations that with the exercise of due 

diligence the operator could have prevented. I conclude the amount of 

the penalty warranted for the three violations cited is $500.00 each 

for a total of $1,500.00. 

667 
Accordingly, it is ORDERED that to the extent indicated the parties' 

motion to approve settlement be, and hereby is, GRANTED. It is FURTHER 

ORDERED that the operator pay in full settlement of these viol~tions a 

penalty of $11,100.00 on or before Frid~y, March 28, 1980 and that subject 

to payment the captioned petitions be DISM!7D. 

Distribution: 

i;;vt1' ~ Joseph B. Kenn 

Administrative 

David E. Street, Esq., U.S. Department of_Labor, Office of the Solicitor, 

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

B. K. Taoras, Esq., Coal Mining Division, Republic Steel Corporation, 

455 Race. Track Road, P.O. Box 500, Meadow Lands_, PA 15341 (Certified Mail) 

668 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

PRINCESS SUSAN COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

MAR 7 1980 Notice of Contest 

Docket No. WEVA 79-423-R 

Citation No. 0641203 

Campbell's Creek Surface Mine 

Appearances: C. Lynch Christian, III, Esq., Charleston, 

West Virginia, for Applicant 

Thomas P. Piliero, Esq., Office of the Solicitor, 

U. S. Department of Labor, for Respondent 

Before: Judge Melick 

DECISION 

On September 4, 1979, Applicant was issued Citation No. 0641203 

which charged a violation of Section 103(f) of the Federal Mine Safety 

and Health Act of 1977 (the Act). 1:_/ That section has been interpreted 

by the Federal Mine Safety and Health Review Commission to provide that 

miners may accompany Federal inspectors on regular mine inspections 

pursuant to Section 103(a) of the Act, and suffer no loss of pay. 'J:j 

1/ Section 103(f) states 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 ~ny 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. 30 

u.s.c. 813(f). 

2/ In Kentland-Elkhorn Coal Corp., PIKE 78-399, 1 FMSHRC Decisions 

l833 (November 30, 1979) appeal pending No. 79-2536 (D.C. Cir., December 21, 

1979), the Federal Mine Safety and Health Review Commission interpreted 

the Section 103(f) walkaround pay provision to apply to Section 103(a) 

"regular" inspections only. In reaching its decision, the Commission in 

Kentland-Elkhorn relied on its reasoning in Helen Mining Co., PITT 79-

11-P, 1 FMSHRC Decisions 1796 (November 21, 1979) appeal pending No. 

79-2537 (D.C. Cir., December 21, 1979). In Helen Mining Co., 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, In Helen 

Mining Co., the Commission referred to "regular" inspections as thos~-­

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. 

669 
On September 19, 1979, Applicant filed an Application for Review contending therein that it had not violated Section 103(f) and thereafter moved 

for summary decision. 

Pursuant to the C~mmission's Rules of Procedure, summary decision 

can be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows 

that there is no issue as to any material fact and that the moving party 

is entitled to summary decision as a ·matter of law. 29 CFR 2700.64(b). 

The facts in this case as alleged by Applicant are not disputed. 

On August 7, 9, 10, 13, 14, 15, and 16, 1979, a Federal mine inspector 

conducted a "free silica technical investigation" at Campbell's Creek 

Surface Mine. The inspector was accompanied by Mr. Thomas Morris, a 

representative of the miners. Morris was not compensated for the time 

he spent accompanying the inspector. Applicant asserts that Morris was 

not entitled to compensation since the "free silica technical investigation" was not a regular inspection. 

I accept Applicant's unchallenged representations, and considering 

the undisputed assertion of fact regarding the nature of the inspection, 

I conclude that the "free silica technical inv~stigation" at issue was 

not a regular inspection, and that therefore, as a matter of law, Applicant 

did not violate Section 103(f) of the Act. 

Accordingly, the Motion for Summary Decision 

citation is VACATED. 

Distribution: 

Gary M1 A~tnini$ 

I 

I 

I 

i 

I 

\ 

C. Lynch Christian, III, Esq., Jackson, Ke:J+ 

P. 0. Box 553, Charleston, WV 25322 (Certifi 

, Holt & O'Farrell, 

d Mail) 

Thomas P. Piliero, 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 

St., NW, Washington, DC 20005 (Certified Mail) 

670 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 1 o 1980 

WINDSOR POWER HOUSE COAL COMPANY,. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Contestant 

Respot\dent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Contest of Citation and Order 

Docket No. WEVA 79-193-R 

Order No. 811576 

May 11, 1979 

Beach Bottom Mine 

DECISION 

Appearances: David M. Cohen, Esq., American Electric Power Service 

Corporation, Lancaster, Ohio, for Contestant; 

Michael Bolden, Assistant Solicitor, Mine Safety and 

Health Administration, U.S. Department of Labor, 

Arlington, Virg~nia, for MSHA. 

Before: Judge Melick 

This case is before me upon the application by the Windsor Power House 

Coal Company (Windsor) under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (30 U.S.C. § 801 et seq., hereinafter the "Act") to contest a citation and subsequent order-Of withdrawal issued by the Mine Safety 

and Health Administration (MSHA) under sections 104(a) and (b) of the Act, 

respectively. An evidentiary hearing was held on December 12, 1979, in 

Wheeling, West Virginia. 

Section 104(a) of the Act provides for the issuance of citations by 

MSHA for violations by mine operators. Section 104(b) of the Act provides 

that an order of withdrawal may be issued when the operator fails to timely 

abate a violation described in a citation issued under section 104(a). The 

citation at bar was issued by MSHA inspector Charles B. Coffield on May 

11, 1979, at 3:45 p.m., charging a violation under 30 C.F.R. § 75.316, for 

inadequate ventilation. The order of withdrawal, under section 104(b) of 

the Act, was issued by inspector Coffield at 5:40 p.m. on the same date for 

Windsor's alleged failure to abate the violation. Windsor takes issue in 

this case only with the underlying violation and concedes that if the 

violation existed, the order of withdrawal was properly issued. 

671 
While 30 C.F.R. § 75.316 provides essentially only for the approval by 

the Secretary and for the adoption by the mine operator of a ventilation 

system and methane and dust-control plan, violations of this regulation have 

been found where an operator has failed to adhere to its approved ventilation plan. Zeigler Coal Company, 4 IBMA 30, January 28, 1975, aff'd, 

536 F.2d 398 (D.C. Cir. 1976). Windsor's ventilation plan required an air 

quantity of not less than 3,600 cubic feet per minute and a mean air velocity 

of not less than 35 feet per minute at the working faces. Windsor concedes 

that the air readings taken by Inspector Coffield and reported in his citation and order were.less than specified but argues that the readings were 

not taken at "working faces" because Windsor was not then actually engaged 

in "work of extracting coal." 

It is apparent however, that Windsor has reached an erroneous conclusion 

because of its misplaced reliance upon only a small segment of the defin-ition 

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." 

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 . 

. 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. The operator concedes that the full sequence of conventional mining operations continued in th'e ·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 

672 
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. 

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.i(g)(l). Under the circu stances, the underlying 

citation in this case was properly issued and the subsequent order of 

withdrawal was therefore valid. ~~.. \ \' l 

' ' '-.J"'-.l 

\ ~~\A Gary Mb k \ 

Atlminist ative \La Judge 

Distribution: \ ~ David M. Cohen, Esq., American Electric ~o, r Servic Corporation, 

P.O. Box 700, Lancaster, OH 43130 (Cer~i~ied Mail) 

Michel Bolden, Assistant Solicitor, Mine ~Jfety and Health Administration, U.S. Department of Labor, 4015 ~ilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

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

Street, NW., Washington, DC 20005 (Certified Mail) 

673· 
FEDERAL MINE SAFETY AND HEAL TH 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 

MAR 1 0 1980. 

Contestant 

Respondent 

Contest of Order of Withdrawal 

Docket No. WEVA 79-378-R 

Order No. 645907 

June 14, 1979 

Beckley No. 1 Mine 

DECISION 

Appearances: Gary W. Callahan, Esq., The Pittston Company Coal Group, 

Lebanon, Virginia, for Contestant; 

Stephen P. Kramer, Esq., Office of the Solicitor, Mine 

Safety and Health Administration, U.S. Department of 

Labor for Respondent. 

Before: Judge Melick 

This case is before me under section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act), 30 U.S.C. § 801 et seq., upon the application of Ranger Fuel Corporation (Ranger) to contes~ati'()rder of withdrawal 

issued by the Mine Safety and Health Administration (MSHA) under section 

104(d)(2) of the Act. 1/ An evidentiary hearing was held in Beckley, 

West Virginia, on January 29, 1980, at which the parties appeared and 

presented evidence. 

The issue is whether there is sufficient evidence to support the 

validity of Order of Withdrawal No. 645907 issued to Ranger on June 14, 

1979. The parties stipulated in this case as to the existence of a valid 

l} Section 104(d)(2) provides as follows: 

"If a withdrawal order with respect to any area in a coal or other mine 

has been issued pursuant to paragraph (1), a withdrawal order shall promptly 

be issued by an authorized representative of the Secretary who finds upon 

any subsequent inspection the existence in such mine of violations similar to 

those that resulted in the issuance of the withdrawal order under paragraph 

(1) until such time as an inspection of such mine discloses no similar violations. Following an inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall again be applicable to 

that mine." 

674· 
section 104(d)(l) order which is the condition precedent to the issuance 

of a withdrawal order under section 104(d)(2). The order at bar charged 

a violation of mandatory standard 30 C.F.R. § 75.1710-l(a)(4) and alleged 

that: 

The 1 left section continuous mining machine was being 

operated in the No. 2 working place with the machine operator beside the miner and the remote control unit sitting 

[sic] on the machine. Any machine with a remote control 

system must be provided with a cab or canopy when the 

controls are placed on the machine. 

The cited regulation provides, as relevant herein, that: 

All self-propelled electric face equipment, including 

shuttle cars, which is employed in the active workings of 

each underground coal mine shall * * * be equipped with 

substantially constructed canopies or cabs, located and 

installed in such a manner that when the operator is at 

the operating controls of such equipment he shall be protected from falls of roof, face, or rib, or-from rib and 

face rolls. 

Ranger does not deny that its continuous mining machine was being 

operated as stated in the order, but contends that the cited standard does 

not apply to mining machines with remote controls, and that in any event, 

the alleged violation was not the result of an "unwarrantable failure." 

The essential facts are not in dispute. MSHA inspector Charles Meadows 

was conducting a regular inspection of the Beckley No. 1 Mine on July 30, 

1979, and while in the 1 Left Section observed a continuous-mining machine 

operating without a cab or canopy. The miner operator, Gregory Stover, was 

standing beside the machine with the remote control console on top of the 

machine. Stover admitted at hearing that he was operating the machine in 

this manner. Under the circumstances, the fact of the violation is proven 

as charged. There is no exception provided in the cited regulation for 

remote-controlled face equipment. The fact that MSHA may have permitted the 

use of such equipment in certain other circumstances is immaterial. 

Meadows had previously issued citations on April 9, 1979, and July 25, 

1979, for similar violations. After each citation, he told the miner operator and the section foremen how to properly use the remote control console. 

He explained that if the controls were placed on the mining machine, the 

machine would have to be provided with a cab or canopy, and if it were to 

be used as a remote unit, it wourd have to be operated from beyond the boom 

of the miner. Meadows explained the hazards in operating the miner with 

the re~ote control panel on a machine not provided with a cab or canopy could 

come from a roof fall, from the machine pinning the operator against a rib, 

by the operator getting a foot caught under it, or from a shuttle car bumping 

the machine into the operator. 

675" 
Mine foreman William Ray Tillie testified on behalf of the operator that 

after the earlier violations issued by Meadows he told his workers not to 

place the remote controls on the miner while they were ru~ning or tramming 

it and warned that if they were caught violating the rule "some kind of 

action would have to be taken." Even after these warnings, however, Tillie 

caught his men violating the order and took no disciplinary action. Shelby 

Tolliver, mine superintendent, concurred that no disciplinary action had ever 

been taken against· any violators of this rule. Tillie conceded that he had 

told the operators that he agreed with their view that it was sometimes 

safer to operate the equipment while standing next to it. Thus, at th~ same 

time he was reprimanding them for operating in violation of the regulation 

and company policy, he agreed with them that it was in fact safer to do 

just that. 

Gregory Stover, the operator caught by Meadows violating the canopy 

standard on June 14, 1979, admitted that he had been warned by management 

not to operate the machine in the manner cited, but nevertheless continued 

on a daily basis to operate that way. No disciplinary action was ever 

taken against him. 

Under the circumstances, I have no difficulty finding that Ranger knew 

or should have known that the miner operators were continuing to follow 

the cited practice in spite of the so-called warnings. The alleged warnings 

were. given in such a way that the operators were given license to disobey 

them. No disciplinary action had ever been taken for repeated violations 

of the warnings in spite of the fact that these violations were admittedly 

known to management. The evidence shows that the violations continued 

u~abated on a daily basis. For these reasons, I find that the violation 

was caused by the "unwarrantable failure" of the operator. 

Ranger argues that it is sometimes safer to operate the remote miner 

in the manner cited as a violation, i.e., with the control console upon or 

near the machine. Based on the evidence presented in this case, I cannot 

agree with this contention. In any event, if the operator believed that 

such was the case, it should have filed a petition for modification under 

section lOl(c) of the Act. By its failure to pursue this course of action, 

I can only believe that the operator is as unconvinced by its argument as 

I am. Under all the circumstances, Order of Withdra 1al No. 645907 was, and 

is, valid. · 

676 
Distribution: 

Gary W. Callahan, Esq., The Pittston Company Coal Group, Lebanon, VA 

24266 (Certified Mail) 

Stephen P. Kramer, Esq., Office of the Solicitor, Mine Safety and Health 

Administration, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

677 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

MAR 1 1 1980 

Civil Penalty Proceeding 

Docket No. PENN 79-145 

A.O. No. 36-00962-03030V 

Vesta No. 5 

JONES & LAUGHLIN STEEL CORP., 

Respondent 

DECISION AND ORDER 

As a result of the failure to train properly the miner assigned 

to the duty of fan watcher as required by the operator's fan stoppage 

plan the operator failed to detect a fan stoppage on the Hastings Fan 

at the Vesta No. 5 Mine that occurred around midnight on April 9, 1979. 

Because the miner responsible for turning off the other fans, deenergizing 

the power, and signalling the men to leave the mine misread the fan signals 

a serious violation of 30 CFR 75.321 occurred. Since the inspector 

determined the violation involved a condition which the operator knew or 

should have known about a section 104(d)(l) citation issued and a penalty 

was originally proposed in the amount of $2000.00. After conference 

the penalty was reduced to $1250.00. 

The parties now move to reduce the penalty to $850.00 on the ground 

that a violation attributable to a rank-and-file miner is not within the 

operator's control, and must therefore be treated as an unwarrantable 

no-fault violation. This I find is a contradiction in terms. On the 

one hand, counsel for the Secretary has refused to vacate the unwarrantable 

failure charge because "the Operator.should have known of the condition." 

On the other hand she suggests the $1150.00 reduction is justified because 

"this violation was not within control of the Operator and negligence was 

minimal." Because I conclude that the knowledge and actions or inactions 

of the miner responsible for fan watching are fully imputable to the 

operator, I find the proposed reduction is unjustified and the amount 

assessed after conference was proper. 

Accordingly, it is ORDERED that the motion to approve settlement 

be, and hereby is, DENIED. It is FURTHER ORDERED that the operator pay 

678. 
a penalty of $1250.00 as settlement in full of this violation on or before 

Friday, March 28, 1980 and that subject to payment the captioned petition 

be DISMISSED. 

Distribution: 

.James R. Haggerty, Esq., Jones & Laughlin Steel Corp., 3 Gateway Center, 

"Pittsburgh, PA 15263 (Certified Mail) 

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

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

679. 
FEDERAL· MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520> LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone: (703) 756-6225 

MAR 1 2 lSBO 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 79-146 

Petit~oner A.O. No. 15-11400-03004 W 

v. 

Preparation Plant 

FAULKNER COAL & LEASING, 

Respondent 

DECISION 

Appearances: William F. Taylor, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, for Petitioner; 

David o. Smith, Esq.,_ Corbin, Kentucky, for Respondent. 

Before: Judge Edwin s. Bernstein 

On June 29, 1978, Petitioner served Respondent with Citation No. 149652, 

for an alleged violation of the mandatory safety standard at 30 C.F.R. 

§ 77.1713. The standard requires facilities such as Respondent's to be 

inspected by a "certified person" at least once during each working shift and 

written reports of such inspections to be entered in a book maintained at the 

facility. On September 26, 1978, Petitioner issued to Respondent an order of 

withdrawal pursuant to Section 104(b). of the Feder.al Mine Safety and Health 

Act of 1977 (the Act) for allegedly failing to abate the June 29, 1978 citation. On that day, Respondent also was served with Citation No. 149666, 

alleging that Respondent continued to produce coal in defiance of the withdrawal order. On June 12, 1979, a petition was filed for the assessment of a 

civil penalty of $3,000 for violation of the September 26, 1978 citation. 

Respondent filed a timely answer to the petition. 

A hearing was held in Knoxville, Tennessee, on January 24, 1980. In 

order to dispose of all the' issues in one hearing, Pet1tioner proposed a penalty of $75 for the alleged June 29, 1978 violation of 30 C.F.R. § 77.1713, 

and Respondent contested that proposed assessment. Respondent also contested 

the September 26, 1978 withdrawal order and Petitioner waived an.objection 

to the contest of that order. Therefore, the issues to be decided are: 

1. Whether Respondent violated the mandatory safety standard at 

30 C.F.R. § 77.1713 on June 29, 1978; 

680 
2. If so, what penalty should be assessed, taking into consideration 

the six criteria set forth in Section UO(i) of the Act; 

3. Whether the September 26, 1978 withdrawal order was proper; 

4. Whether .the issuance of Citation No. 149666 on September 26, 1978 

was proper; and 

5. If Citation No. 149666 was properly issued, what penalty should be 

assessed for this vioiation, again taking into consideration the criteria 

in Section llO(i) of the Act. 

At the hearing, the parties waived submission of posthearing briefs. 1/ 

Based upon the evidence and my evaluation of the credibility of the wit- -

nesses and exhibits, I make the following findings of fact, conclusions of 

law, and order. 

FINDINGS OF FACT 

The parties stipulated, and I find: 

1. The Federal Mine Safety and Health Review Commission has jurisdiction over the subject matter of this case. 

2. The Faulkner Coal & Leasing Preparation Plant is subject to the provisions of the Act. 

3. The Faulkner Coal & Leasing Preparation Plant is a "mine" within the 

definition of that term contained in Section 3(h)(l) of the Act. 

4. The products of the Faulkner Coal & Leasing Preparation Plant enter 

into and affect commerce. 

5. The Faulkner Coal & Leasing Preparation Plant operates one production shift with an average of three employees. 

6. Citation No. 149652 was issued on June 29, 1978. 

7. The order of withdrawal was issued on September 26, 1978. 

8. Respondent is a small operator which mined less than 50,000 tons of 

coal per year at the time of the alleged violations. 

9. Respondent had 13 alleged violations for the three-year period prior 

to June 30, 1978. All of these violations were discovered during the inspection of Respondent's facility on June 29, 1978. There were no violations by 

Respondent during the three-year period prior to June 29, 1978. 

1/ Counsel for both parties presented excellent closing arguments to conclude an extremely well-tried case. 

681 
10. At al.l times relevant to this proceeding, Marion McKee was qualified as a "certified person" within the meaning of 30 C.F.R. § 77.1713. 

ll. As of December 29, 1978, Arlis Faulkner also has been a "certified 

person" within the meaning of that term in 30 C.F.R. § 77.1713. 

At the hearing, H. M. Callihan, Jr., Ronnie Brock, and Ken Howard testified for Petitioner. Arlis Faulkner and Marion McKee testified for 

Respondent. 

Mr. Callihan stated that on June 29, 1978, he inspected Respondent's 

preparation plant and found 13 violations of mandatory safety standards. He 

testified that on that day, he asked Mr. Faulkner if he had a certified person 

making and recording daily examinations. When Mr. Faulkner indicated that 

he had no one, Mr. Callihan issued Citation No. 149652. Mr. Callihan taldMr. Faulkner that he or one of his employees should contact the Kentucky 

Department of Mines and Minerals and take the test to become a "certified 

person."· 

On July 28, 1978, Mr. Callihan revisited the Faulkner facility to determine whether the 13 violations had been corr.ected. Mr. Faulkner indicated 

that he still had no one to make the inspections, but that he had made 

arrangements for himself or someone else to take the test. Mr. Callihan 

extended the time to abate the violation. 

On September 26, 1978, Mr. Callihan accompanied Ken Howard, an MSHA 

inspection supervisor, and Ben Bunch, another inspector, on an inspection 

trip to check on a reported illegal mine in the area. En route, Mr. Callihan 

decided to visit the Faulkner facility to determine whether the violation of 

30 C.F.R. § 77.1713 had been abated. Mr. Faulkner again stated that he had 

no one to make the inspections and that he himself had not had time to take 

the test. Mr. Faulkner stated that he had contacted Marion McKee, who was 

qualified, but that he "couldn't keep up with him." Upon learning that the 

violation had not been abated after almost three months, Mr. Callihan issued 

a withdrawal order pursuant to Section 104(b) of the Act. Mr. Faulkner told 

Mr. Ca1lihan that despite the order, he would be unable to stop loading coal 

that day and continued to load coal. As a result, Mr. Callihan issued 

Citation No. 149666. 

Mr. Callihan further s_tated that during his three visits to the facility 

on June 29, July 28, and September 26, 1978, Mr. Faulkner never showed him 

nor offered to show him a record book; that the first time he saw such a 

record book was the night before the hearing; that during these three visits 

he never saw Mr. McKee at the Faulkner facility; and that if Mr. Faulkner.had 

shown him a record book, he would not have issued the withdrawal order, but 

would have abated or terminated the citation. Mr. Callihan also testified 

that he never. told Mr. Faulkner that the certified inspector must be a fulltime employee; however, he did tell Mr. Faulkner that the individua~must be 

"someone who would be on the property," and someone who "must be there more 

than just in or out." 

682 
Mr. Callihan further testified that on November 17, 1978, he revisited 

the Faulkner facility to see if it was still processing coal. He inspected 

the preparation plant and talked to Mr. Faulkner. As Mr. Callihan was making 

his inspection, Mr. McKee drove up and there was some banter about an old 

shotgun which Mr. McKee jokingly waved about. Mr. Callihan did not see any 

written records at that time. Mr. Faulkner did not offer to show him any 

written records, and did not indicate that there was a record book. 

Ronnie Brock, another MSHA inspector, testified that he made a follow-up 

inspection of the Faulkner plant on July 7, 1978 to determine whether the 

citations issued on June 29, 1978 had been abated. Mr. Callihan was on 

National Guard duty and thus unavailable to conduct the follow-up inspection. 

Mr. Faulkner told Mr. Brock that he needed more time to take the test. 

Mr. Faulkner did not indicate that Mr. McKee was making inspections and did 

not indicate that he had an inspection book. Mr. Brock extended the abatement time to July 14, 1978. Mr. Brock did not tell Mr. Faulkner that the 

inspector had to be a full-time employee. It was his understanding that no 

MSHA policy required this. 

Ken Howard, an MSHA supervisor, testified that he visited the Faulkner 

facility with Mr. Callihan and Mr. Bunch on September 26, 1978. Mr. Faulkner 

then stated that he had not had time to arrange for the test to obtain his 

certification, and had no one on the site to make examinations. Mr. Faulkner 

did not indicate that he had any records of examinations, but said that he 

had attempted to hire Mr. McKee, and "couldn't keep up with him." It was 

Mr. Howard's understanding that nobody was making examinations. 

Mr. Callihan issued the Section 104(b) order, but Mr. Faulkner said that 

he would not close down his facility since he could not afford to shut down. 

Mr. Howard did not remember any conversation regarding the necessity of having a full-time employee make the inspections. He stated that MSHA's policy 

is that whoever makes the examinations should be on site about 50 to 60 percent of the time. Mr. Howard did not recall any conversation regarding 

MSHA policy at the time, and Mr. Faulkner did not ask about policy. 

Mr. Howard testified that MSHA believes that this inspection procedure 

is an effective tool of hazard prevention, and a very important requirement. 

He stated that at the September 26, 1978 meeting, when Mr. Faulkner said 

that he would not comply with the Section 104(b) order, Mr. Howard explained 

the ramifications of such conduct, specifically the possibility that 

Mr. Faulkner might be subject to further penalties and even criminal prosecution. Mr. Faulkner told the MSHA inspectors that he intended to comply with 

the requirement, but that if he did not load the Louisville and Nashville 

railroad cars which he had obtained, he would lose his contract for such 

cars and be out of business. He said.he would leave the premises and did 

not want any trouble. 

Marion McKee testified that between July 1 and July 5, 1978, he began 

to help Mr. Faulkner temporarily as a bulldozer operator and tipple inspector. He stated that although he made hi~ first tipple inspection at the 

Faulkner plant in early July 1978, he did not record his inspections in a 

683 
book until August ·22, 1978. He also testified that in July 1978, he saw 

Mr. Callihan at the Faulkner facility and they joked about an old shotgun. 

According to Mr. McKee, all of his inspections were made at 7 a.m., except 

for the November 17, 1978 inspection which was made at 7:30 a.m. He testified that from early July 1978 until Mr. Faulkner became qualified in 

December 1978, he inspected every day that coal was loaded. Mr. McKee stated 

that he inspected the preparation plant on September 26, 1978, but was not 

present when the inspectors were there. 

Arlis Faulkner testified that he held a Bachelor of Science degree from 

the University of Kentucky, attended graduate school in pharmacy for 

three years, and has been the sole proprietor and owner of Faulkner Coal 

& Leasing since he built the coal preparation plant in 1973. He also owns 

three concrete plants, some bluejean stores, and some rental income property. 

Mr. Faulkner testified that on June 29, 1978, Mr. Callihan told him that 

the inspector should be a full-time employee. Accordingly, he hired 

Mr. McKee in July 1978. Mr. McKee would begin work, either at Respondent's 

plant or elsewhere, at 7:30 a.m., and would stop by Respondent's plant before 

work and inspect at about 7 a.m. on days when the tipple was in operation. 

In July 1978, the tipple was inspected, but the inspections were not recorded 

in a book. Mr. Faulkner stated that on July 7, 1978, when Mr. Brock made his 

follow-up inspection of the plant, he did not tell Mr. Brock about 

Mr. McKee's employment even though Mr. McKee was inspecting for him at the 

time. Mr. Faulkner told Mr. Brock that he needed more time to study for the 

certification examination. 

Mr. Faulkner testified that the shotgun incident occurred on July 28, 

1978. He added that at that time, Mr. McKee told Mr. Callihan that he was 

making the inspections. Mr. Callihan did not then ask for the inspection 

records. Mr. Faulkner stated that Mr. McKee was inspecting as of July 28, 

1978, but that Mr. Faulkner did not know if a part-time inspector was sufficient to comply with the standard. Mr. McKee also ran a bulldozer for 

Mr. Faulkner. Mr. Faulkner admitted saying that he could not "keep up with" 

Mr. McKee. Mr. Faulkne~ testified that one day Mr. McKee would come in; 

another day he would not. Mr. McKee was never a full-time employee. He 

would come by to inspect the tipple and would go to work. Mr. Faulkner 

stated that he did not always know where Mr. McKee could be located. 

On September 26, 1978 ,, the facility was loading coal. There had been a 

shortage of railway cars, and Mr. Faulkner had waited three weeks before getting 

the cars which he was loading that day. Unless he loaded those cars, he 

would lose his railroad contract and would be unable to obtain any more cars. 

He told the inspectors he was doing everything he could to comply with the 

standards, but that he had not had time to take the certification examination. He testified that the inspectors did not ask for the inspection book 

on September 26. 

Mr. Faulkner conceded that the proposed $3,000 penalty would not put 

him out of business. His 1979 production at the facility was approximately 

684 
15,000 to 20,000 tons, and his 1978 net profit from the facility was between 

$25,000 and $35,000. 

Mr. Faulkner had stated that there was an inspection every time that 

coal was loaded. On cross-examination, he was asked why there was an inspection report for September 19, 1978, even though he had also testified that 

coal was not loaded for three weeks prior to September 26. Mr. Faulkner 

qualified his earlier testimony by adding that inspections were made when the 

tipple was used to move or stockpile crushed coal, as well as when coal was 

being loaded. 

In response to my questions, Mr. Faulkner stated that he did not examine 

the provisions of 30 C.F.R. § 77.1713. He also stated that Mr. McKee was an 

erratic worker, and that "[i]f he took a notion to go somewhere, fishing or 

somewhere, he went. If he took a notion to get him a bottle and go, he did 

it." When I asked Mr. Faulkner why.he did not tell the inspectors on 

September 26, 1978 that he had a record book, he gave various answers which 

included: (1) "they didn't ask for it"; (2) "I didn't really think about 

it"; and (3) he thought a full-time employee was required. 

The record book which was introduced into eyidence was a spiral notebook. Petitioner's counsel noted that the book began with entries for the 

month of November 1978, and that entries for the previous August appeared on 

subsequent pages. He also noted that while the November entries were all in 

one color ink, the August entries were in another color ink, and that all 

of the entries indicated that Mr. McKee made his inspections at 7 a.m., with 

the exception of the November 17, 1978 entry, which was made at 7:30 a.m. 

Petitioner's counsel challenged the authenticity of the book on the grounds 

of the differing colors of the ink and the fact that the entries for various 

months were out of sequence. 

CONCLUSIONS OF LAW 

It is undisputed that on June 29, 1978, Respondent violated 30 C.F.R. 

§ 77.1713. Respondent's business is small in size, and had no history of 

prior violations. The proposed penalty would not affect the operator's ability to continue in business. The gravity of the violation was small since 

the probability of an accident was slight, '!:_/ and Respondent's negligence was 

2/ In Robert G. Lawson Coal Company, 1IBMA115, 120 (1972), the Interior 

Board of Mine Operations Appeals made the following comments concerning the 

"gravity" criterion: 

"Each violation should be analyzed in terms of the potential hazard to 

the safety of the miners and the probability of such hazard occurring. The 

potential adverse effects of any violation must be determined within the 

context of the conditions or practices existing in the particular mine at 

the time the violation is detected." 

685 
slight. There were, however, no good faith efforts to abate the violation. 

I assess a penalty of $75, the full amount of the Assessment Office's 

proposal. 

The withdrawal order of September 29, 1978, was proper. The violation 

had not been abated when the inspectors revisited the facility, although 

almost three months had elapsed since the issuance of the citation. The 

inspectors had extended the abatement period several times. When the order 

was finally issued, the inspectors were presented with no evidence indicating 

that the regulation was being complied with. Even if, as contended by 

Respondent, the required inspections were being made and records being kept, 

Respondent's failure to communicate this to the inspectors justified the 

conclusion that the violation had not been abated in good faith. 

The second citation was proper in that Respondent knowingly and willfully defied a properly issued withdrawal order. This constituted a violation of Section llO(a) of the Act. 3/ 

In connection with the assessment of a penalty for the second citation, 

several of the factors previously stated apply, including the small size of 

Respondent's business and its insignificant history of prior violations. 

Mr. Faulkner stated that the proposed penalty of $3,000 would not put him 

out of business, but that he would have to obtain the funds from his other 

businesses. 

In order to determine whether the operator acted in good faith in this 

matter, it is necessary to evaluate apparently conflicting testimony. 

Mr. Faulkner and Mr. McKee testified that Mr. McKee began making inspections 

in early July, shortly after the June 29, 1978, citation was issued, and that 

from August 22, 1978, onward, Mr. McKee recorded his examinations in the 

inspection book which was submitted into evidence. Mr. Faulkner stated that 

he was under the impression that a full-time employee was required to 

inspect. He stated that this impression was based upon his discussions with 

the inspectors, although he never read the regulation itself. Mr. Faulkner 

and Mr. McKee stated that in July 1978, they told the inspectors that 

Mr. McKee was making inspections, although they never told the inspectors 

that a record book was kept after August 22, 1978. 

Petitioner disputes the contention that Mr. McKee was making inspections and maintaining an inspection book before September 26, 1978. Counsel 

stressed that as late as the November 1978 follow-up inspection, MSHA personnel were not informed about the book. 

3/ Section llO(a) reads: 

"The operator of a coal or other mine 1n which a violation occurs of a 

mandatory health or safety standard or who violates any other provision of 

this Act, shall be assessed a civil penalty by the Secretary which penalty 

shall not be more than $10,000 for each such violation. Each occurrence of 

a violation of a mandatory health or safety standard may constitute a 

separate offense." 

686 
There is also a discrepancy between Petitioner's witnesses and Respondent's witnesses regarding when the inspectors first observed Mr. McKee on 

Respondent's premises. The inspectors contend that this took place on 

November 17, 1978, while Mr. Faulkner and Mr. McKee testified that it took 

place in July 1978. Mr. McKee and Mr. Faulkner also testified that in 

July they told the inspectors that Mr. McKee was making inspections. 

I find that the inspectors' version of the facts is more believable. 

The three inspectors' testimony remained consistent throughout direct and 

cross-examination. Upon observing their demeanor, I found them to be 

truthful witnesses. On the other hand, Mr. McKee's and Mr. Faulkner's 

testimony contained a number of factual inconsistencies.. The notebook and 

various aspects of their testimony challenge simple logic. 

The alleged record book contains several discrepancies on its face which 

lead me to believe that it probably was prepared after the fact, rather than 

during the alleged inspection period. As previously noted, the book begins 

with dates in November. After a page or two of November entries, the August 

entries appear. This lends credence to the explanation that the entries were 

begun in November, and that the earlier dates were added as an afterthought. 

Additionally, there is a regularity with respect to the entries which gives 

the impression that they all were prepared at the same time. Initially, 

Mr. McKee and Mr. Faulkner testified that entries and inspections were made 

when coal was loaded. This also raised some questions of credibility. 

Although Mr. Faulkner later qualified his testimony, it calls into question 

entries made during the three-week period immediately prior to September 26, 

1978 when, according to the testimony, no coal was loaded onto railroad cars. 

Another matter which raises questions regarding the notebook's 

authenticity and credibility relates to Mr. Faulkner's description and my 

observation of Mr. McKee. Mr. McKee is a very casual man who does not appear 

to be totally reliable. Mr. Faulkner testified that Mr. McKee would sometimes disappear, would often be difficult to locate, was very erratic in 

his movements, and was the type of man who would disappear anytime he "took 

a notion to get him a bottle and go." Despite this, every entry in the 

book indicated that Mr. McKee performed his inspections at precisely 7 a.m., 

with the lone exception of the September 26, 1978, entry, which indicated 

that the inspection was made at 7:30 a.m. The apparent regularity of the 

inspection times is inconsistent with my observation of Mr. McKee and with 

the picture of Mr. McKee etched by Mr. Faulkner. Mr.· Faulkner's admission 

to the inspectors on September 26, · 1978, that he "couldn't keep up with" 

Mr. McKee substantiates that view and is inconsistent with the notebook 

which indicated that Mr. McKee was a diligent man who made regular inspections at exactly the same time each day. 

Finally, and most persuasively, when Mr. Faulkner was faced with a 

total shutdown of his facility on September 26, 1978, a shutdown which was 

so economically threatening to him that he defied the withdrawal order and 

subjected himself to possible criminal penalties, he still did not inform 

687 
the inspectors ·that Mr. McKee had been making and recording regular inspections and produce the record book. Mr. Faulkner impressed me as being an 

extremely bright, well-educated, and resourceful individual who apparently 

has done well in a number of business ventures. It is completely inconsistent with this characterization for him not to have produced or revealed the 

existence of the notebook at that time. 

The inspectors' testimony is far more credible. I believe the inspectors when they indicated that on two visits in July 1978, and one on 

September 26, 1978, they were not told that Mr. McKee was performing t~e 

inspections. I do not believe that the inspectors misled Mr. Faulkner into 

thinking that the certified person referred to in the regulation had to be a 

full-time employee. According to Mr. Faulkner's own testimony, the insp~ctors encouraged him to take the examination knowing that he only spent part 

of his time at this facility. I also do not believe that the alleged shotgun 

incident took place in July as Mr. Faulkner and Mr. McKee alleged. I credit 

the inspectors' testimony that this meeting took place in November. I 

further accept the inspectors' testimony that the conditions were not abated 

until sometime after November 17, 1978, probably in December 1978. 

I also do not find Mr. Faulkner's testimony that he did not know that 

the inspections were required to be recorded to be believable. The initial 

citation issued to Respondent indicated that "[n]o certified person was 

available to make and record inspections." [Emphasis added.] 

In summary, the evidence of record convinces me that as of September 26, 

1978, there were no regular inspections being performed and there was no 

record book of any such inspections at Respondent's facility. Further, 

Mr. Faulkner was extremely slow in abating both citations. It was not until 

November or December 1978 that he finally corrected the condition. 

The violation of the withdrawal order was thus willful. 4/ The gravity 

was small; 5/ I do not believe that as a result of the defiance of the 

withdrawal order any lives were endangered. There was a complete lack of 

good ~aith in complying with the second citation. 

In consideration of all of these factors, I find that a penalty of 

$2,000 is appropriate to achieve the purposes of the Act. 

!±/ The willfulness of the violation is somewhat ameliorated by the fact that 

at the time of the withdrawal order, Mr. Faulkner was faced with a desperate 

economic situation in that he had been waiting for several weeks to obtain 

railroad cars, and felt that he would suffer dire economic losses if he complied with the withdrawal order and failed to load the cars. I think this 

situation should be considered as a mitigating factor in assessing an appropriate penalty. 

2._/ See footnote 2, supra. 

688 
ORDER 

The order of withdrawal is AFFIRMED. Respondent is ORDERED to pay 

$2,075 in penalties within 30 days of the date of this order. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge 

William F. Taylor, Esq., Office of the Solici.tor, U.S. Department of 

Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

David O. Smith, Esq., Attorney for Faulkner Coal & Leasing, 100 West 

Center Street, P.O. Box 699, Corbin, KY 40701 (Certified Mail) 

689 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520 ! LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

WR 1 2 1980 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. HOPE 79-6-P 

Petitioner A.c. No. 46-03467-03001 

v. 

SEWELL COAL COMPANY, 

Respondent 

Meadow River No. 1 Mine 

Docket No. HOPE 79-227-P 

A.c. No. 46-03859-03005 

Sewell No. 1-A Mine 

DECISION AND ORDER ASSESSING PENALTIES 

This matter came on for hearing on February 5, 1980, in Charleston, 

West Virginia. · Respondent did not appear at the hearing although it was set 

at the site requested by Respondent 1/ and although Respondent received 

approximately 32 days notice of the hearing. ]:_/ 

Respondent was found to have waived its right to present its defense 

and a summary order was entered assessing MSHA's proposed penalties as final 

and directing Respondent to pay such penalties. 

My oral decision containing findings, conclusions and rationale appears 

below as it appears in the record aside from minor changes in grammar and 

punctuation: 

The record will reflect that the Respondent, Sewell Coal 

Company, is not present. On Thursday, January 31, 1980, I 

1/ By letter dated January 4, 1980, Respondent's counsel, Gary w. Callahan, 

requested a continuance of these two proceedings for the reason that he had 

another mine safety hearing to attend in Arlington, Virginia, on the same 

day. By Order dated January 15, 1980, Respondent's motion was denied. On 

January 31, 1980, Mr. Callahan advised me that he was not going to attend 

the hearing in Charleston, West Virginia. Mr. Callahan was again advised 

that the hearing would not be cancelled. 

2/ A form letter dated November 1, 1979, from Respondent's counsel to 

administrative law judges in the Commission's Arlington office is attached 

as Exhibit "A." Among other things, it indicates various mining companies 

that counsel represents. 

690. 
did receive a call from Respondent's counsel, Mr. Gary 

Callahan, who advised m~ he would not be in attendance at the 

hearing today. He said that he was going to be in Arlington, 

Virginia, in a hearing before my colleague, Judge William 

Fauver, in a mine safety matter. I did advise Mr. Callahan 

at that time that I had previously ruled upon his motion to 

continue this case, and that I had denied his motion to 

continue this case. 

The sequential facts with respect to my denial of this 

motion for continuance are as follows: 

First, this hearing was noticed by me on January 2, 

1980. Mr. Callahan received that Notice of Hearing on or 

before January 4, 1980, since on that date he sent me a 

letter and in writing requested that the hearing be continued 

because of his hearing before Judge Fauver. So the record 

reflects clearly that the Respondent did have more than 

thirty days' notice of the hearing in writing. 

The pertinent rule with respect to Notice is that contained in 29 CFR 2700.53, which requires that written notice 

of the hearing shall be given to all parties at least 

twenty days before the date set for a hearing. 

After receiving Mr. Callahan's letter dated January 4, 

1980, I issued a written order denying his motion for continuance on January 15, 1980, pointing out that our exceedingly 

heavy docket makes it impossible to delay or adjust hearing 

dates based on the availability of one attorney. 

In our conversation five days ago when Mr. Callahan 

called and actually said he would not attend the hearing 

today, and after I pointed out to him that his client has a 

great deal of business before this Commission and has insufficient attorneys to represent it, I advised him we could not 

set our schedule to that of an individual's availability when 

the client's attorney had more business than he could handle. 

Mr. Callahan indicated in this conversation that this 

was a field of expertise and it was difficult for him to find 

another attorney. He did not say that he had called other 

attorneys in an attempt to obtain someone to attend this 

hearing and represent the Respondent. 

I advised him I was going to hold the hearing and that I 

would be in Charleston to hold the hearing on the date 

scheduled -- that is today, February 5. I asked him to 

advise the Government attorney. Mr. Callahan indicated he 

had already spoken to the Government attorney and that the 

Government attorney said he was going to attend the hearing. 

691 
. It is my judgment that if the principle were established 

that hearing schedules were to be established on the basis of 

the convenience of counsel or on the availability of one 

counsel, it would soon be impossible to schedule these Mine 

Safety hearings. 

I know of one situation several years ago where a large 

company had only one attorney, and its whole policy was to 

delay the processing of these hearings because that attorney 

was never available. 

I note Mr. Callahan has before me in the past sought 

a delay in hearings I have had with him on this same basis, 

and I also point out he has done the same with other 

Administrative Law Judges in our office saying he is the 

only one who can try these cases for his client. Sewell Coal 

Company has many, many hearings before this Commission. I 

question whether any rule which would be established delaying 

these cases would actually be in the best interest of mine 

safety. 

Where is a proper line to be drawn? if a party says it 

has two hearings going on simultaneously, can it hide behind 

an attorney's unavailability and not be required to hire 

other counsel? 

" A second question arises: Can an attorney delay the 

normal processing and hearing of cases because of his 

unavailability? Can a mine operator charged with violations 

of the mine safety laws delay these cases by refusing to hire 

sufficient counsel? 

In the very proceedings before us in the two dockets 

with which we are concerned today, this Respondent, apparently through its counsel, has already engaged in considerable delay. I note that the petition for the assessment of 

civil penalty was filed by the government on October 3, 1978. 

Several months went by without an answer being filed by 

Respondent. 

On April 26, 1979, an Order to Show Cause was issued 

by Chief Administrative Law Judge James A. Broderick requiring the Respondent to show cause why it· should not have been 

deemed to have waived its right to a hearing and to contest 

the proposed penalty. On May 11, 1979, Judge Broderick 

granted the Respondent until June 1, 1979, to respond to the 

Order to Show Cause. On May 17, 1979, the Responrient did 

file its answer to the petition for assessment. Perhaps an 

error was made at this point by not finding the Respondent 

in default at that point. It never did show good cause why 
it had delayed filing its answer for several months; however, 

at that time the commission was in a state of change. We 

were operating under different procedural rules and new 

rules were soon to be issued, and they were issued on 

June 29, 1979. 

So the Respondent in this case started the proceeding 

with a considerable delay. It was very well-accommodated, 

it was given additional time to answer the Order to Show 

Cause and was not found in default -- a considerable accommodation which I do question now the propriety of. I am 

beginning to think that perhaps the default should have been 

entered at that time. In any event, the default was waived 

by the Government and Respondent's answer was received and 

these matters were then starting to be processed. 

In its answer .to the petition for penalty assessment, 

the Respondent specifically requested that the hearing in 

these two cases be held in Charleston, West Virginia. That 

is where these two cases were noticed for hearing, and the 

Respondent, through its counsel, was given thirty days' 

notice. 

I find it improper for an attorney to call up a judge 

five days before a hearing and tell a judge he is not going 

to appear [in] a case when he has had notice and where the 

hearing is being set at a site convenient to that particular 

party, particularly where there is a history by this same 

counsel of engaging in the same type of delay, and where the 

apparent belief of counsel is that he, the attorney, is the 

focal point of Mine Safety and Health proceedings. 

Mr. Callahan is a counsel for one party. We have many 

attorneys in this country. These hearings in Mine Safety 

matters are held in fifty states. Administrative Law Judges 

travel to every state in the union to hold these hearings. 

We are not able to accommodate the scheduling of these hearings based upon the fact that one attorney representing a 

party cannot himself make it. One of the points that 

Mr. Callahan made in his conversation with me was that this 

is an area of expertise, and apparently he's the only one who 

can try these cases. I reject that out of hand. Any 

attorney worth his salt can try a Mine Safety and Health 

proceeding. Attorneys have customarily had no difficulty 

in trying these cases. It would not have been impossible to 

begin having a sufficient number of attorneys to try these 

cases available, and there are such attorneys available, and 

there is quite a large Mine Safety and Health bar. 

693. 
I also note for a period of years another large coal 

company, Eastern Associated, had law students representing 

it in these cases. Although I did not approve of that 

practice, the fact remains that that did occur. 

So, if Mr. Callahan's argument were accepted that he or 

another attorney or three more attorneys are the only ones 

who can represent a client, if that were accepted, then 

ultimately you would have difficulty bringing many of these 

cases to hearing. 

The question now is what to do in this case. The current rules of procedure differ from the past·rules of procedure in such a matter. The only current rule which even 

winks at this situation is that contained in 29 CFR 2700.63. 

It has two paragraphs: Subparagraph (a) provides generally, 

"When a party fails to comply with an order of a judge or 

these rules, an Order to Show Cause shall be directed to the 

party before the entry of any Order of Default or Dismissal." 

Subparagraph (b) provides, "Penalty Proceedings. When the 

judge finds the Respondent in default in a civil penalty proceeding, the judge shall also enter a summary order assessing 

the proposed penalties as final and directing that such 

penalties be paid." 

In analyzing this rule, I first note the first paragraph 

generally applies to all proceedings before the Commission. 

The second paragraph [refers[ specifically to penalty 

proceedings. 

The first paragraph requires an Order to Show Cause 

shall be directed to a party before the entry of any default; 

however, it applies only where a party, "-- fails to comply 

with an order of a judge or these rules." 

In this case, there is no failure of Respondent to 

comply with an order or any rule. The Respondent in this 

case has had a reasonable opportunity for hearing at a site 

he requested -- or it requested -- and has failed to take 

advantage of that right. 

I therefore conclude that it is not necessary to issue 

an Order to Show Cause in these proceedings. In so finding, 

I note there is no specific rule in the current procedural 

rules covering the situation where a party does not appear 

at a hearing. 

In the interim procedural rules which preceded the 

current rules, Regulation 2700.26 provided specifically, 

where the Respondent fails to appear at the hearing, the 

694. 
judge shall have the authority to conclude that the Respondent has waived its right to a hearing and contest of the 

proposed penalties and may find the Respondent in default. 

Where the judge determines to hold Respondent in default, 

the judge shall enter a summary order imposing the proposed 

penalties as final, directing that such penalties be paid. 

We have no such rule in the current rules. The situation is left uncovered by the current rules. In this situation, I believe ·the answer is contained in rule -- or let me 

rephrase that -- that the ant-;wer is [found] by reference to 

two of the current rules, of that contained in 29 CFR 2700.60 

and that contained in 2700.63. 

2700.60 provides, Any party does have a right to present his case or defense by oral or documentary evidence and 

to submit rebuttal evidence and the like."' That is a right 

that a party has. 

2700.63(b) then provides that if I find a party in 

default I shall enter a summary order assessing the proposed 

penalties as final. 

I believe in this case that the Respondent has waived 

its right to a hearing and I so find. The Respondent has 

unnecessarily delayed this proceeding once before; and while 

it was not found to be in default, I am not inclined to 

permit it be continued to delay the processing of such proceedings on the basis that it just has this one attorney or 

two attorneys who are unable to handle the great amount of 

business the Respondent has before the Commission. 

In conclusion, I am adopting the rule which I gather 

will go before the Com~ission and which will either be 

approved or rejected but in the process of which we hope we 

should get some clarification as a result of this case. I am 

going to adopt the rule that where Respondent is given reasonable notice of a hearing and fails to appear or declines 

to appear at such hearing, it has waived its right -- and I 

underline the word right -- to present its case at a hearing 

on the record as provided in 29 CFR 2700.60(b); and that in 

s.uch circumstances it is proper for the Administrative Law 

Judge to find the Respondent in default and pursuant to 

29 CFR 2700.63(b) to enter a summary order assessing MSHA's 

proposed penalties as final. 

* * * * * * 

Before closing, I am going to indicate one other item 

that I believe is pertinent in these proceedings to aid the 

* 
Commission and perhaps any court subsequently down the line 

that may be reviewing this matter, and that is the nature of 

the Commission's hearing process and the problems which are 

involved in setting these hearings. 

In the past two years and since the passage of the 1977 

Safety Act, the docket, I believe, of many of the Commission 

judges -- there are something like fourteen in Arlington and 

four now in Denver -- the dockets, that is, the number of 

cases they are. carrying has increased dramatically. I am now 

carrying approximately twice as many cases as I was two years 

ago. I do not sit, for example, as a United States District 

Court Judge does, in a single site or two sites. The hearings which I hear are, as I previously indicated, spread out 

all over the country. I have, for example, a hearing trip 

set up in March, next month, which requires me on Tuesday to 

have a hearing in Wheeling for two days and then starting 

two days later I'll be in Pomeroy, Ohio, beginning on a 

Thursday morning; the following Monday morning, I'll be in 

Prestonsburg, Kentucky, and the following Wednesday, I'll be 

back here in Charleston. If attorneys in any of those cases 

began calling me up after I had set up such a schedule 

saying, "Look, I've got to go somewhere else, I've got 

another hearing elsewhere," it would be impossible to start 

to process any of these cases. 

These are Mine Safety and Health cases and the Congress 

has given these cases quite a bit of priority. I have had 

many times in the past lawyers call me up saying, "Look, 

I've got a traffic court case the same day, I can't make that 

Mine Safety case." It has been a rare situation where it has 

been possible to grant these types of continuance with that 

type of situation existing; that is: a very heavy docket with 

the hearing sites literally strung out all over the country 

and with numerous lawyers involved. 

I can recognize that an attorney's livelihood and the 

practice of his profession is important to him. Mr. Callahan 

has sent a letter around to various of the administrative law 

judges in the past indicating a long list of fairly large 

companies he represents in these proceedings, and he has many 

cases; and it is certainly a credit to him that he undertakes 

to represent these clients. On the other hand, our moving 

this large number of cases cannot be.dependent on his availability or any one or two or three attorneys in a given case. 

I hope that this proceeding will result in a good look on the 

part of the Commission as to the necessity of moving the 

large number of Mine Safety cases we presently have. 

The commission in total has no more judges -- actually, 

it has less working judges under the 1977 Act then it had 

696 
under the '69·Act, even though the case load has increased by 

a great amount and the hearings are held now practically 

everywhere in the United States. 

I would note the hearings are by and large much more 

difficult to process, there are more procedural battles 

going on, there are more prehearing matters to be disposed 

of; so some sense of reality has to now be adopted so these 

cases can be handled and be disposed of. 

The commission has previously held that the hearings 

have to be held in the area where the mines are located. 

That takes time -- that takes travel time and the like. I 

hope the rule that I have indicated on the record, which I 

believe is a reasonable one, will be adopted by the 

Commission in this case. That simply is that where the 

Respondent has been given a reasonable notice of hearing and 

it fails to appear, it has waived its right to present its 

case on the record as provided in 29 CFR 2700.60. And that 

in such event, it is proper for the Administrative Law Judge 

to find the Respondent in default and to enter a summary 

order assessing MSHA's proposed penalties as final. That 

procedure had been in the interim procedural regulations, 

and under the current regulations a gap appears. So if a 

reasonable rule is not filled in here, I would estimate that 

every Administrative Law Judge at the commission will soon 

have stacks of cancelled hearings in their office; and we 

will just simply create a complete backlog of these hearings, 

human nature being such as it is and lawyers being the way 

they are, they will put off, if they can, these cases. If the 

judges are going to conscientiously try to whack away at the 

large number of cases, we have to have some sort of reasonable procedures we can work with. 

I do find the Respondent in default on the basis that I 

have previously indicated, and I assess the Respondent in 

Docket Number HOPE 79-6-P a penalty of six hundred ninety 

dollars ($690) for the violation of 30 CFR 75.200 described 

in Order of Withdrawal Number 045973, which issued on 

March 27, 1978. I also assess a penalty against Respondent 

in Docket Number HOPE 227-P of five hundred thirty dollars 

($530) for the violation of 30 CFR 75.503 contained in Citation Number 044189 dated June 14, 1978; and direct that these 

penalties be paid to the Secretary of Labor on or before 

thirty days after the receipt of my writeen order which will 

is.sue in the near future. 

Michae 1 A. Lasher, 1Jr., Judge 

697· 
Distribution: 

Eddie Jenkins, Esq., Office of the Solicitor, u.s. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Gary w. Callahan, Esq., Sewell Coal Company, Levanon, VA 24266 

(Certified Mail) 
he Honorable 

THE PITTSTON COMPANY 

COAL GROUP 

LEBANON, VIRGINIA 24266 

November 1, 1979 

dministrative Law Judge 

ederal Mine Safety and Health 

Review Commission 

015 Wilson Boulevard 

rlington, Virginia 22203 

ear Judge 

On occasion I receive from your off ice a notice .that trial 

r hearing has been scheduled for a case of one of the divisions 

f The Pittston Company, and often I already have a hearing or 

ther matter previously scheduled. Since I handle all MSHA and 

SM matters for the companies listed below, my schedule of open 

ates is somewhat limited. I would appreciate, then, if you 

ould call or otherwise advise me of a prospective date prior to 

he time a case is set for hearing. 

Amigo Smokeless Coal Company 

Badger Coal Company 

Buffalo Mining Company 

Clinchfield Coal Company 

Eastern Coal Corporation 

Elkay Mining Company 

Evergreen Industries, Inc. 

Excel Development, Inc. 

Jewell Ridge Coal Corporation 

Kentland-F.lkhorn Coal Corporation 

Rail-River Terminal Company 

Ranger Fuel Corporation 

Sewell Coal Company 

The Maple Company, Inc. 

The Sycamore Company, Inc. 

Sincerely, 

:wc/ksg 

699 

NOV 51979 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 13, 1980 

SECRETARY OF LABOR, Complaint of Discharge, 

MINE SAFETY AND HEALTH Discrimination, or Interference 

ADMINISTRATION (MSHA), ex rel. 

Docket No. VA 79-141-D 

THOMAS ROBINETTE, 

Applicant United Castle Mine No. 1 

v. 

UNITED CASTLE COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

James H. Swain, Esq., and Kenneth L. Stein, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Applicant; 

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

Lowry and Sykes, Atlanta, Georgia, for Respondent. 

Chief Administrative Law Judge Broderick 

Statement of the Case 

On September 20, 1979, Applicant filed an Application for Temporary Reinstatement of Thomas Robinette together with a finding by the 

Secretary of Labor that the complaint of discriminatory discharge had 

not been frivolously brought. Based on the application and finding, 

and pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), 

an order was issued September 24, 1979, requiring Respondent to temporarily reinsta!-e Thomas D. Robinette in the position from which he was 

terminated or in a comparable position at the same rate of pay and 

with the same or equivalent work duties as were assigned him immediately prior to his termination. The complaint was filed on 

October 11, 1979, alleging that Robinette was discharged on or about 

June 4, 1979, because he filed a discrimination complaint with MSHA, 

and because he complained about working on the belt feeder without an 

operative cap light. 

Pursuant to notice, the case was heard on the merits in Norton, 

Virginia, on November 28, 1979. Thomas Robinette, Teddie Joe Fields 

700 
and Isaac W. Fields testified on behalf of Applicant. Fuller B. 

Helbert, Denver Cook and Percy Sturgill testified on behalf of Respondent. Both parties have filed posthearing briefs: To the extent tha.t 

the contentions of the parties are not accepted in this decision, they 

are rejected. 

STATUTORY PROVISION 

Section 105(c) of the Act provides in part: 

(c)(l) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal 

or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has 

filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mine, or because such 

miner, representative of miners or applicant for employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 

101 or because such miner, representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act 

or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, 

representative of miners or applicant for employment 

on behalf of himself or others of any statutory right 

afforded by this Act. 

(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or otherwise discriminated 

against by any person in violation of this subsection 

may, within 60 days after such violation occurs, file a 

complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary 

shall forward a copy of the complaint to the respondent 

and shall cause such investigation to be made as he 

deems appropriate. Such investigation shall commence 

within 15 days of the Secretary's receipt of the complaint, and if the Secretary finds that such complaint 

was not frivolously brought, the Connnission, on an expedited basis upon application of the Secretary, shall 

order the immediate reinstatement of the miner pending 

701 
Issue 

final order on the complaint. If upon such investigation, the Secretary determines that the provisions of 

this subsection have been violated, he shall immediately 

file a complaint with the Commission, with service upon 

the alleged violator and the miner, applicant for employment, or representative of miners alleging such discrimination or interference and propose an order granting 

appropriate relief. The Commission shall afford an 

opportunity for a hearing (in accordance with section 

554 of title 5, United States Code, but without regard 

to subsection (a)(3) of such section) and thereafter 

shall issue an order, based upon findings of fact, 

affirming, modifying, or vacating the Secretary's proposed order, or directing other appropriate relief. 

Such order shall become final 30 days after its issuance. The Commission shall have authority in such proceedings to require a person committing a violation of 

this subsection to take such affirmative action to abate 

the violation as the Commission deems appropriate, 

including, but not limited to, the rehiring or reinstatement of the miner to his former position with back 

pay and interest. The complaining miner, applicant, or 

representative of miners may present additional evidence 

on his own behalf during any hearing held pursuant to 

this paragraph. 

* * * * * * * 

Whether Thomas Robinette was discharged because of activity protected under section 105 of the Federal Mine Safety and Health Act? 

FINDINGS OF FACT 

1. In May and June 1979, and prior thereto, Respondent United 

Castle Coal Company was the operator of an underground coal mine in 

Wise County, Virginia, known as the United Castle Mine No. 1. 

2. In May and June 1979, and prior thereto, Applicant 

Thomas D. Robinette was employed by Respondent in its United Castle 

Mine No. 1 as a miner. 

Complaint to MSHA May 30, 1979 

3. When Robinette reported for work on May 30, 1979, he was 

informed by the section foreman, Percy Sturgill, that another miner, 

Ike Fields, had been assigned Robinnette's former job as miner helper 

and that Robinette was to work on the belt feeder as the feeder man, a 

lower paying job. 

702 
4. The reason given for the transfer was the fact that Fields 

had filed a complaint with MSHA alleging that he was removed from the 

position of miner helper in January 1979, when he refused to operate 

the miner "because there was no air." 

5. When Fields was put back on the miner helper job in May 1979, 

he and the Respondent signed an agreement wherein Fields withdrew his 

complaint and Respondent agreed not to interfere with miners in the 

exercise of their rights under the Act. 

6. After finishing work on May 30, 1979, Robinette went to the 

MSHA office in Norton, Virginia, and executed a complaint alleging 

discrimination on the part of Respondent in changing his work status. 

7. There is no evidence as to the nature of the discrimination 

alleged in the MSHA complaint. Specifically, there is no indication 

that Robinette charged that he was given a new job because of safetyrelated activities. 

8. On May 31, 1979, when Robinette reported for work, Sturgill 

told him that he would be assigned to driving a shuttle car and would 

receive the same rate of pay as a miner helper. This job was to begin 

the following Monday. On May 31, Robinette worked about 2 hours on the 

miner and the remainder of the shift on the belt feeder. 

9. On May 31, 1979, Robinette told Sturgill that he had filed a 

discrimination complaint with MSHA. 

10. Sturgill replied that if Robinette wanted "to play it that 

way," he could play it that way too. He also told Robinette that in 

the future he must bring a doctor's slip anytime he is off work. Previous company policy required a doctor's slip for 2 or more days 

absence. 

Discussion 

. I have accepted Robinette's version of this conversation which is 

different from Sturgill's version largely because Robinette's testimony is indirectly corroborated by the testimony of Isaac Fields (Tr. 

47-48). Sturgill was clearly upset because in trying to resolve one 

MSHA complaint (that of Fields), he apparently precipitated another 

(that of Robinette). 

11. The nature of the complaint made to MSHA by Robinette is not 

clear. Robinette testified that the complaint was filed "because of my 

job being changed and my pay rate being cut." There is no evidence 

that it was related to any health or safety matter. 

12. On May 31, 1979, Robinette worked for a time operating a 

shuttle car, and on relief as a miner helper. He ran over a cable 

703 
with the shuttle car and destroyed some line curtain with the miner. 

Sturgill reprimanded him for these incidents. He was also reprimanded 

by Tiltson for failure to properly grease the feeder tail shaft. 

THE INCIDENT OF THE CAP LAMP CORD 

13. On June 1, 1979, while Robinette was working on the belt 

feeder, it went out of line. In attempting to realign it, Robinette's 

head lamp cord was caught in the roller and severed. He called to the 

shuttle car operator to inform Sturgill that he had no light and would 

have to shut down the feeder. There was no other illumination in the 

area. 

Discussion 

It is Respondent's position that the cutting of the Robinette's 

lamp cord was not accidental but deliberate; and that it was caused not 

by being caught in the roller, but by being cut with a knife or other 

sharp instrument. Respondent attempted to demonstrate in the courtroom 

and by testimony the impossibility of a cord being severed in the way 

Robinette's was by being caught in a roller. I find that Respondent 

failed to establish these contentions, and there is no adequate reason 

to reject Robinette's testimony. 

14. Robinette shut down the feeder because he believed that it 

was not safe to work in an unlighted area. 

15. The belt feeder operator is required to remove or break up 

rocks moving on the belt to permit the coal to pass. It is necessary 

on occasion to shut down the feeder to remove larger rocks. To permit 

the belt to continue running when the operator has inadequate illumination would create a hazardous situation for the operator and other 

miners. 

16. After some delay, Sturgill came to the area of the belt 

feeder, and, as h~ approached, saw Robinette disconnect the mine phone. 

Discussion 

~binette denied that he disconnected the mine phone. I accept 

the testimony of Sturgill that he did so. His motive apparently was 

frustration over his cap light being out and Sturgill's delay in 

responding to his request for assistance. 

17. Sturgill repaired Robinette's lamp and the mine phone. The 

two men exchanged harsh words as to the shutting down of the belt 

feeder, as to how th~ lamp cord had been. broken, and the disconnection 

of the telephone. Sturgill told Robinette to come to the mine office 

at the end of the shift. 

704 
18. Robinette went to the office and was scheduled to meet with 

Jack Tiltson, Vice President of Respondent company, Denver Cook, the 

Mine Administrator and Sturgill. Tiltson, however, was not available 

at the time so Robinette went home. 

19. After Robinette departed, Sturgill discussed the incidents 

involving Robinette with Tiltson and Cook. Thereafter, Tiltson and 

Cook went over Robinette's file which contained a number of warnings 

for unsatisfactory work. 

20. On Monday, June 4, 1979, ·when Robinette reported for work, 

Tiltson told him he was discharged. 

21. Prior to the actual discharge, an "Employee Warning Record" 

was completed by Denver Cook and entered in Robinette's file. It 

states "Employee became disobedient with section foreman. Was not 

maintaining the belt feeder in a clean and safe condition, the job 

requires. the feeder to be greased and shoveled at all times. Disconnected the mine phone interrupting communication." This was based on 

information furnished by Sturgill at the meeting on Friday, June 1. 

22. When Tiltson discharged Robinette, he told him that "it was 

for what had happened that Friday, and what had happened in the past" 

(Tr. 19). He stated that Robinette had no reason to shut down production because his cap lamp did not work. When Denver Cook raised a 

question about operating the equipment without a light, Tiltson replied 

that "Robinette could have got out of the way and that the tailpiece 

would have took care of itself" (Tr. 41). 

23. The effective cause for Applicant's discharge was his refusal 

to continue operating the feeder after his lamp cord was cut. This was 

a bona fide refusal to work under what he considered to be, and what 

objectively were, unsafe conditions. The other reasons given for the 

discharge--insubordination and inferior work--were not the primary 

motives for the discharge. 

CONCLUSIONS OF LAW 

1. At all times relevant to this proceeding, Applicant and 

Respondent were subject to the provisions of the Feder.al Mine Safety 

and Health Act of 1977. 

2. The undersigned Administrative Law Judge has jurisdiction 

over the parties and subject matter of this proceeding. 

3. On June 4, 1979, Applicant Thomas Robinette was discharged 

from his position with Respondent because of his refusal to work under 

unsafe conditions. This refusal is activity protected under the Act. 

4. Applicant Thomas Robinette was discharged and discriminated 

against in violation of section 105 of the Act. 

705 

.. 
Discussion 

Respondent established that Applicant's work was less than satisfactory. Applicant was obviously belligerent and uncooperative with 

his foreman Sturgill as a result of his change in job classification. 

The evidence clearly establishes, however, that the effective cause 

for his discharge was his refusal to continue operating the belt feeder 

after his cap lamp cord was cut. Applicant concluded, and I agree with 

him, that to continue operating the belt feeder would be hazardous. 

Refusal to continue working under hazardous conditions is protected 

activity under the Act. See Phillips v. Interior Board, 500 F.2d 772 

(D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1974). 

ORDER 

Respondent, United Castle Coal Company is ORDERED: 

1. To reinstate Applicant Thomas Robinette to the position from 

which he was discharged on June 4, 1979, or to a comparable position at 

the same rate of pay and with the same or equivalent work duties. The 

reinstatement shall take effect as of June 4, 1979. 

2. Respondent is forther ORDERED to pay for the time lost by 

Applicant prior to the Order of Temporary Reinstatement issued herein, 

with interest thereon at the rate of 9 percent per annum. 

3. Respondent shall remove all references to the discharge of 

Applicant from his personnel file. 

4. Respondent shall post a copy of this decision on the bulletin 

board at the mine office for a period of 30 days. 

5. The Secretary of Labor is directed to file with the Commission 

a proposal for a penalty for the violation of the Act found herein to 

have occurred. Because the Act and the Commission Rules of Procedure 

provide specific steps to be taken in connection with penalty assessments, I declined to entertain evidence during this proceeding involving 

a claim of discrimination, and I decline to assess a penalty for the 

violation found herein. I conclude that a separate proceeding is 

required. 

J (}viu.6 )18r~b/'le/L- James A. Broderick 

Chief Administrative Law Judge 

706 
Distribution: 

Michael L. Lowry, Attorney for United Castle Coal Company, Ford, Harrison, 

Sullivan, Lowry & Sykes, 1400 Harris Tower, 233 Peachtree Street, N.E., 

Atlanta, GA 30303 (Certified mail) 

James H. Swain, Esq. and Kenneth L. Stein, Esq., Attorneys, Office of the 

Solicitor, U.S. Department of Labor, Room 14480 Gateway Building, 3535 

Market Street, Philadelphia, PA 19104 (Certified mail) 

Harrison Combs, Attorney, United Mine Workers of America, 900 15th Street, 

N.W., Washington, DC 20005 

Mr. Thomas D. Robinette, General Delivery, Exeter, VA 24249 

707 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5209 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 1 7 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. DENV 79-245-PM 

Petitioner A.O. No. 04-02511-05001 

v. 

KAISER STEEL CORPORATION, 

Respondent 

Eagle Mountain Mine & Mill 

DECISION 

Appearances: Judith G. Vogel, Attorney, Office of the Solicitor, U.S. 

Department of Labor, San Francisco, California, for the 

petitioner; 

Daniel B. Reeves, Esquire, Oakland, California, for the 

respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalties 

filed by the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), on 

January 26, 1979, charging the respondent with six alleged violations of 

certain mandatory safety· standards found in Part 55, Title 30, Code of 

Federal Regulations. 

Raspondent filed a timely answer contesting the civil penalty proposals 

and requested a hearing in Indio, California. A hearing was convened on 

November 6, 1979, and the parties appeared and participated fully therein. 

The parties waived the filing of written proposed findings and conclusions 

but were afforded an opportunity to present oral arguments in support of 

their respective positions. 

Issues 

The principal issues presented in this proceeding are: (1) whether 

respondent has violated the provisions of the Act and implementing regula·-

tions as alleged in the proposal for assessment of civil penalties filed 
in this proceeding, and, if so, (2) the appropriate civil penalty that 

should be assessed against the respondent for the alleged violations based 

upon the criteria set forth in section llO(i) of the Act. Additional 

issues raised by the parties are identified and disposed of in the course 

of this decision. 

In determining .the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: ~l) 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, ahd (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, P.L. 95-164, 

30 u.s.c. § 801 ~ ~· 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 et~· 

Stipulations 

The parties stipulated to the following (Tr. 1-2): 

1. Respondent has no prior history of violations for the period June 16 

to 29, 1978, the dates of the inspection in question, and the effective date 

of the Act, March 9, 1978. 

2. The civil penalties assessed for the violations in question will 

not impair respondent's ability to remain in business. 

3. The mine in question produces 4 million tons of iron ore per year. 

Dismissal of Citation 

Petitioner's motion to dismiss Citation No. 375455, June 27, 1979, 

30 CFR 55.14-6, on the ground that petitioner cannot sustain its burden of 

ptoof as to the fact of violation was ~ranted (Tr. 2) and the citation is 

vacated. 

Petitioner's Testimony and Evidence 

Citation No. 375204, June 28, 1978, citing 30 CFR 55.20-3, states: 

"The take-up pulley balcony was not clean and prevented safe access for 

2 maintenance employees who were changing a counterweight bearing." 

709 
MSHA inspector James w. Shroyer confirmed that he issued the citation in 

question after inspecting the balcony area at the take-up pulley on the H-4 

conveyor belt. He observed an accumulation and buildup of encrusted materials that covered the entire balcony, and it had built up to a height of some 

18 to 20 inches from the edges of the center of the platform. The encrusted 

materialS fell,. off _o.f· the conveyor belt .as it came around the counterweight 

sloping outwa1·d and even with the toeboard. Employees have access to the 

balcony by. an open door which provides maintenance and lubrication for the 

pulley and moving parts. The unclean balcony with the buildup of materials, 

and the presence of tools, presented slipping and tripping hazards to 

employees on the balcony as well as the area below the balcony where tools 

could fall off and injure employees. Lubrication grease was also present on 

the balcony and this presented a slipping hazard in that employees could 

slip througiL the handrailings and fall to the area below injuring themselves 

against metal structures. Employees may receive a range of injuries from 

broken bones to fatal injuries, and the respondent should have known about 

the material buildup on the balcony. The hazardous conditions were abated 

within the time s.pecifiad after respondent pulled employees off of one job 

and assigned them to clean up the balcony, and he was present shortly after 

the hazardous conditions were corrected (Tr. 4-12). 

On cross-examination, Inspector Shroyer testified that the function of 

the conveyor belt is to transfer ore waste from one plant area to another, 

and he believed that the hardened materials came from the conveyor belt. The 

materials consisted of.ore waste one~quarter to three-eighths inches thick 

located outside the plant building. The materials had hardened because they 

had not been disturbed by employees doing. repair work, and the presence of 

the materials on the iron balcony surface made it raore of a tripping and 

slipping hazard to employees because it was not packed in some areas, and 

this could ca~se an employee to loose his footing. As the material was 

dumped, part of· ... it would stick to the conveyor belt, and after it dried, the 

materials drqpped off on to the balcony area. In order to prevent accidents, 

a 42-inch guardrail enclosed the balcony and 3-inch toeboards were also there 

to prevent employees and materials from being knocked off the balcony into 

the area below. Toeboards are required in platform areas which are elevated 

and when men and equipment are in the area below. 

Inspec_tor Shroyer stated that employees are on the balcony in question 

only when they are performing maintenance and repair work, and employees 

usually travel in the area directly bel:ow the balcony. If an employee were 

to fall, the toeboard may prevent him from slipping over the edge, but based 

on the type and slope of. material, an employee might have a difficult time 

holding onto anything to prevent his fall if he had been working with lubrication grease. There was no grease· on the floor and it is not probable that 

an employee would fall. off the 20-.foot balcony. The· balcony is not a normal 

work area and in a normal production sh~ft employees would be there only to 

perform.maintenance. HP. observed no.one working on. the balcony, but a 

supervisor told him that: two men had heen working there,- and he observed 

tools and equipment present which indicated to him that men had been working 

there shortly before he arrived on the scene (Tr. 12-21). 

710.:: 
Inspector Shroyer stated that the presence of the material on the iron 

balcony presented slipping and tripping hazards, and when an employee walks 

out the door going towards the take-up pulley, the material buildup presents 

a tripping hazard. The material buildup area was 18 to 20 inches up around 

the conveyor belt slnping downward to 3 inches to the right of the toeboard 

on the outside, and ~he balcony itself is 4 feet wide and 7 feet long (Tr. 

22). In view of the buildup of materials, he did not believe the toeboards 

were serving the purpose of keeping materials or tools from falling off the 

balcony (Tr. 23-26). 

In response to bench questions, the inspector testified that he believed 

the violation was more of a housekeeping problem, and had the balcony been 

cleaned he would not have issued a citation •. He did not believe there was 

a violation of any "safe access" standard, and he observed no other violations of safety standards in the balcony area (Tr. 27-28). 

Respondent's Testimony 

Plant superintendent M. A. Gaines testified that the material found on 

the iron balcony came from two 6-inch openings of the metal housing which 

built up on the grating of the platform, and the buildup resulted from the 

scraper belt wash system on the conveyor being down. ·The bottom of the 

trough had corroded away, and the belt wash system could not be repaired 

while it was in operation during production. The belt wash system could 

be repaired on two regularly scheduled days per week, and material spillage 

from the conveyor belt is cleaned up on a routine basis depending on the 

area and how frequently the equipment is required to be greased. If the 

scraper belt system was working, laborers would not be required to clean 

up the material spillage. Laborers apparently neglected to clean the area 

because it is not a normal work area but is only used while mechanics are 

changing and lubricating bearings. After the inspection, the material 

buildup was knocked down to a flat surface to 2-1/2 feet wide between the 

take-up pulley and the handrail. The two mechanics in question were standing on the built up material while changing the bearings. If there is a 

material buildup on the platform, the normal procedure is to contac·t the 

maintenance emplo;y.ees to clean the area first before they go in (Tr. 29-33). 

On crosfi~examination, Mr. Gaines described the belt conveyor wash 

system and indicated that the ma't;erial accumulations buildup was caused by 

the fact that the belt wash system was down, but that it could also have 

been caused by a pump located at the discharge end of the conveyor. On 

the day in question, both conveyor be1ts were down for maintenance and the 

walkway beneath the conveyor is used twice a year by maintenance employees 

while replacing belt idlers and perfor~ing clean-up duties. After the 

spillage was leveled out, it was 6 inches high and 4 inches at the outside 

and even with the 4-inch toeboards (T~. 34-37). 

William E. Eastgate, respondent's industrial safety manager, testified 

that he accompanied the inspector during the inspection and observed the 

conditions on the balcony in question. He did not believe a tripping hazard 

711 
existed because the materials were very fine and did not contain any rocks 

or significant mass which would cause one to trip. He conceded there was a 

buildup and one could leave footprints in it while walking over the area. 

He did not believe there· was a slipping hazard present even though the surf ace material was damp, and he indicated that one would use due caution when 

walking over the footing conditions (Tr. 38-39). 

On cross-examination, Mr. Eastgate estimated the height of the materials to be approximately 10 to 12 inches at the take-up pulley frame, and 

that it was not level throughout the. balcony aea. He did not believe someone could trip or slip because "when you walk in an operation like this, 

you are always observant of footing conditions" and "there is no such thing 

as an idyllic situation" (Tr. 40). 

In response to bench questions, Mr. Eastgate stated that maintenance 

was being performed on the equipment and that two mechanics were present 

(Tr. 4l)o 

On redirect examination, Inspector Shroyer testified that he could not 

recall that two mechanics were present when he arrived at the scene and 

since there were so many people in the.inspection party, he may have assumed 

they were part of that party. The amount of buildup of materials present 

increased the possibility of tools falling off the balcony to the area below 

(Tro 42-43). 

Citation No. 375450, June 27, 1978, citing 30 CFR 55.20-3(a), states: 

The walkways on the C-1 conveyor were not kept clean of 

loose materials that restricted the passage on the walkways. 

Material spills and sections of used metals were blocking 

access on the walkways in the tunnel section and on the outside sections of the walkways on the conveyor. 

Petitioner's Testimony and Evidence 

MSHA inspector Arthur s. Carisoza confirmed that he issued the citation 

in question after observing material spills and sections of used metal material blocking the access on the walkways inside the conveyor tunnel and the 

inclined elevated area outside the tunnel. The C-1 conveyor has a walkway on ~ 

both sides which is encircled by a headboard, and the walkway is 24 inches 

wide with toeboards, handrails, headrails, and a graded. metal floor. The 

conveyor is elevated in excess of 20 feet starting from gr:ound level, and the 

spillage he observed on the walkway on the outside section of the C-1 conveyor consisted of precrushed iron ore and sections of the iron frame structure used to support the braced end. The spillage was scattered beyond the 

width of the walkway running one-third down froin the headpoint of the conveyor, and the edge of the toeb?ards ranging from 2. to 8 inches• The spillage inside the tunnel consisted of iron ore near· the chutes and jagged and 

straight,.-edge metal lying on the tunnel.walkways. The tunnel· is 8 feet high 

with a walkway on one side running down into the tunnel 150 feet, and 

employees used this walkway to service the conveyor and check for spillage. 

712 .. 
·Inspector Carisoza testified that while he did not see any employees 

near the conveyor, there were footprints in the tunnel, and it appeared that 

employees went inside the tunnel to clean up the spillage and to repair the 

conveyor roller (Tr. 45-50). The spillage on the inclined elevated section 

outside the walkway created a slipping, falling,.and stumbling hazard to 

employees walking down the walkway. The spillage inside the tunnel created 

several hazards to employees, including restricted head clearance, tripping, 

falling, and stumbling. In order to walk through the tunnel, employees 

would have to climb over the material piles, and there was not enough room 

to walk cleanly around the material piles. An employee could slip on the 

loose material on either section of the tunnel and receive a sprain, fractures, lacerations, and a concussion if he struck his head •. The water on 

the floor, the wet conditions between the piles,- loose dust, and the practice 

of employees wearing dark sun glasses are conditions that increased the likelihood of accidental injury inside the tunnel. He believed the respondent 

should have known that loose materials, including the iron and metal pieces, 

were located on the conveyor walkways, and employees should be instructed 

to inspect the area for spillages at least once per shift, and materials 

should be removed as soon as the repair work is completed. Respondent began 

to clean the materials off of the walkways on the day of the inspection, 

and the citation was abated within the time specified (Tr. 50-53). 

Citation NQ• 375451, June 27, 1978, citing 30 CFR 55.20-3, st?tes: 

Material spills in the C-2A tunnel were restricting the 

passage on the walkway. Material spills were causing workers 

to expose themselves to tripping hazards and limiting head 

clearances while traveling through the tunnel. 

Inspector Carisoza confirmed that he issued a second citation after 

observing material spills in the C-2A tunnel area, and this material consisted of a fine type of iron ore that rose from 3 feet from the draw chutes 

to the top of the conveyor. Although he did not see any employees inside 

the C-2A tunnel, there were footprints present. Employees are in the tunnel 

to repair the conveyor and unplug the draw chutes. The loose material and 

spillages in the C-2A tunnel posed the same type of hazards to employees as 

the C-1 tunnel, including lack of head clearance, injuries, and falls. Water 

on the walkway, bad illumination from burned-out bulbs, and a dusty atmosphere were conditions that increased the likelihood of accidental injury and 

the conditions were subsequently abated by the respondent within the time 

specified (Tr. 53-56). 

·on cross-examination, Inspector Carisoza agreed: that belt.spillage will 

occur during mining operations, but that methods should be utilized to insure 

a cleanup to minimize the problem. He did not believe that the presence of 

cleanup crews in the tunnel while the belt was operating presents a hazard, 

but a'better practice would be.to clean up while the belt is down. He 

described the walkways in the C-1 conveyor tunnel and the spillage which he 

observed. The loose spillage on the elevated east walkway ranged from 2 to 

9 inches. The walkways were guarded by guardrails andtoeboards and it was 

713•. 
not probable that anyone would fall off the elevated walkway. He clarified 

the statement.made on his inspector's statement at the time the citation was 

issued by stating that the probability of one slipping and falling was present and he slipped while on the conveyor .belt walkway. If one did not walk 

with extreme caution it would be more likely thannot that he would slip. 

He saw no one on the walkway and an employee should be able to observe the 

obstructions. 

Inspector Carisoza stated that he found more than three areas on the 

C-1 conveyor feed point chutes whicb. had accumulated materials present, and 

the accumulations at those points were as high as the conveyor belt itself, 

in excess of 2-1/2 feet sloping. at an angle. A person could. slip if he tried 

to walk over those obstructions. Persons in the• inspection party had to walk 

over the obstructions, but none of them slipped or fell, and this was because 

they exercised extreme caution in climbing over the areas. The tunnel is 

8 feet high and employees are required to wear hard hats. ·The accumulated 

materials consisted of iron ore and dirt and it was not· flammable or explosive, and the metal materials consisted of used materials, including a belt 

idler. He observed no work being performed in the tunnel while he was there, 

but believed that work had been performed there before he arrived (Tr. 

57-64). With regard to the C-2A tunnel, the accumulated materials consisted 

of a spill in excess of 2-1/2 feet and several obstructions (Tr. 64). 

Mr. Carisoza indicated that the extraneous materials cited were found 

in the C-1 tunnel and not the C:-2 tunnel. The materials were blocking the 

access and presented a tripping hazard. One employee is usually in the 

·tunnel walkways to check the flow nf mat.erials,- but they· are not regular 

walkways or travelwa'ys used by a.11 employees •. Thec.itations were abated in 

good faith (Tr. 64-67). The citations were personally served on respondent 

at the conclusion of the post-inspection conference each day (Tr. 82). 

While he recalled more than one piece of loose material on the C-1 walkway, 

he could not specifically remember what they were but indicated they consisted of used metal parts which he believed constituted tripping hazards 

which obstructed an employee's travel access through the area (Tr. 82-84). 

Respondent's Testimony 

Superintendent Gaines explained the functions of the conveyors in question and he testified that no one· is allowed in the C-1. tunnel while the 

conveyor is running. Employees are issued clear glasses and sun glasses 

for use in the tunnei, and cleanup crews are sent in to clean up the walkways 

while the conveyors are down before _maintenance per-sonnel go in. In the C-2 

· tunnel, designated personnel are present while the conveyor is running, and 

except for the tail pull,ey locations, cleanup is normally done while the 

conveyor is down. Due' to the· restrictions in the amount" of room in the 

tunnel, cleanup is not performed while the .conveyors are running. Although. 

there are two wall~.ways in the C-1. tunnel,: under normal circums:tances only the 

east one is .used and this. would be infrequently while maintenance is being 

performed. (Tr. 6 7-71). 

714: 
Mr. Gaines confirmed that an idler frame and roller was in the C-1 tunnel on the west walkway. It was left there after an idler was changed and 

had not been removed, but it was subsequently immediately removed. The 

inspector complained about dust and small pebble materials on the inclined 

walkway, and if one is not careful he could slip on it. Mr. Gaines also 

confirmed the presence of an obstruction at one location in the C-1 tunnel, 

and he described it as "14 inches across the face and six inches deep." It 

was halfway down the tunnel and pushed under the conveyor belt. He could 

not recall any 2-1/2-foot obstructions in the feed chute. Cleanup is performed once a week in the C-1 tunnel and as required in the c~2 tunnel. He 

also confirmed the presence of the obstructions in the C-2 tunnel which were 

caused by material buildup at the bottom of the skirtboard, and he indicated 

that an employee would have to maneuver his way ?round the pile of spillage, 

but he could do so safely (Tr. 71-73). 

On cross~examination, Mr. Gaines testified that there is no occasion 

for employees to ·be in the C-1 tunnel while the conveyor is operating. A 

chain barricade is in place while the conveyor is running, and following 

the inspector's suggestion, a sign was also put up at ·the tunnel entrance. 

The material buildup was not on the tunnel walkway but under the conveyor 

belt, but the used idler and roller were on the walkway. There was a 

2-1/2-foot buildup of material at the bottom of the ·skirtboard near the 

south feeder in the C-2 tunnel, and he and the inspector had ·to walk over 

it .(Tr. 73-77). 

In response to bench questions, Mr. Gaines stated·that .other than the 

idler frame and roller, he saw no other us.ed metal materials in the C-1 

tunnel. However, at the tail end of the C-.2 tunnel, pan liners were leaning against the wall and they were left there from the previous day when 

maintenance was performed. The C-2 tunnel had been cleaned the day of the 

inspection, but he could not recall when the C-1 tunnel was last cleaned, 

but both are cleaned at least once a week on the down days. He did not 

consider 2-1/2 feet of spillage to be normal (Tr. 78-79, 80). 

Citation No. 375452, June 27, 1978, citing 30 CFR 55.17-1, states: 

Sufficient illumination to provide safe working conditions and travel through the C-2A tunnel conveyor were not 

maintained due to broken and burned out bulbs in the tunnel section of the conveyor. Several areas in the tunnel 

were not illuminated sufficiently and limited a person's 

visibility while in the tunnel. 

Citation Noo 375453, June 27, 1978, citing 3-0 CFR 55.17-1, states: 

Sufficient illumination to provide safe working conditions and travel through the C-2B tunnel conveyor were not 

maintained in the tunnel section of the conveyor. Several 

bulbs were broken and the area at the tail section was not 

illuminated to provide safe visibility in that section. 

?.15 
Petitioner's Testimony 

Inspector Carisoza confirmed that he issued two citations for illμmination violations on June 27, 1979. With regard to the C-2A tunnel, he stated 

that he did not count the number of broken and burned-out light bulbs, but 

there were at least three which were broken. He walked the entire length of 

the tunnel and his visibility was impaired due to the broken and burned-out 

bulbs. He did not have clear floor vision in the dark areas and he had to 

take extra precautions when walking from area to area so that his eyes could 

focus. He had no additional lighting source with him because he was not 

aware of the conditions present when he entered the tunnel. In his opinion 

"sufficient illumination" is that illumination which provides enough illumination for a person to walk.safely and travel where his visibility is not 

impaired and this was not.provided in the C-2A tunnel because one could not 

see the travelway, walkway, or structures in certain areas without straining 

the eyes. The hazards presented included tripping and falling over spillage, 

obstructions, and wet areas, and water was on the flooring. Although he saw 

no employees in the tunnel, he observed footprints which indicated that 

employees.had been there. He believed the respondent should have known 

about the conditions cited because the tunnel illumination should be checked 

at the beginning of the shift and burned-out bulbs should be reported. The 

conditions were abated within the time specified by replacing the defective 

light bulbs (Tr. 85-88). 

With regard to the C-2B tunnel, Inspector Carisoza stated he could not 

recall the number of broken bulbs, but there was an excess of three. Due 

to the restricted visibility;·· he could. not. tell whether there was any light 

in the tunnel tail section which measured some 15 to 20 feet. He walked to 

the tail section and since the lighting was bad, 'he exited the tunnel and 

advised mine management to "fix the lighting before we.go in there." He 

observed two employees coming out of the tunnel, and in his view, the illumination was insufficient to provide safe working conditions. The sufficiency 

of the lighting is determined by the mine operator, and once installed, it 

must be maintained in operable condition to provide sufficient illumination. 

Had all the light bulbs been operating, the illumination would have been 

adequate. Employees are in the tunnel to check rollers or perform maintenance a~d the hazards of lack of sufficient illumination consist of tripping, 

stumbling, or striking solid objects and the head clearance is restricted. 

The respondent should.have known about the conditions cited because routine 

inspections would haye disclosed the conditions. The defective bulbs were 

timely replaced (Tr. 88-93). 

On cross-examination, Inspector Carisoza testified that some bulbs in 

both tunnels were on, but he did not know the bulb wattage. He did not 

determine the light fixture intervals, and he indicated that had twice the 

amount of light been provided there would still be a violation if every 

other· light is out~ He determines a violation on the basis of the effect 

of .the illumination on visibility. As an exmple, if 20.lights are installed 

and one:is burned out, if visibility is affected in the area of the burnedout light; that is a problem. A tunnel is approximately 150 feet long and 
while he did not know how many light bulbs were on in the tunnels in question, there were more than three in each one. He saw no one working in the 

C-2A tunnel, but if someone were there to perform work and took in a portable 

light to provide sufficient illumination, that would comply with section 

55.17-1. He did not have a light meter and could not estimate the footcandles of illumination in the tunnels (Tr. 93-97). 

Inspector Carisoza testified that the hazards in the C-2A tunnel were 

higher than those in the C-2B because of excessive spillage and the lighting at the location of the spills at two chutes was irisufficient. While 

the locations where there were defective bulbs were not pitch black, one had 

to be there awhile in.order to see, and even then visibility was marginal 

(Tr. 97-100). 

In response to bench questions, Inspector Carisoza confirmed that he 

cited the violations because respondent failed to maintain the illumination 

.as installed. Once an operator determines his lighting needs and installs 

light fixtures, they are required to be maintained. He determined the lack 

of sufficient illumination on the basis of the fact that light bulbs were 

burned out and in those locations he could not se~. At -the time the citations were issued, the requirement that work places be routinely inspected 

was not a mandatory standard (Tr. 102-105). 

Respondent's Testimony 

Superintendent Gaines confirmed that he was with.the inspector when the 

conditions cited were observed •. He described· the tunnel areas in question 

and indicated that the light fixture.s are spaced approximately .20 to 22 feet 

·apart and.that each light bulb generates 200 watts. He·observed burned-out 

bulbs but did not recall any two in a row being out. The work activity 

performed in both tunnels is the same and the normal work activity in the 

tunnels is very low. In his view, the hazards requiring visual detection 

are slight, and while the heater areas would be the only problem areas, the 

company is very conscious of the lighting in those areas. Bulbs are kept 

in stock and replaced on a regular basis, and portable lights are stocked 

and used as necessary. With the exception of the broken light fixture at 

the tail pulley of the C-2B tunnel, he did.not believe the burned-out bulbs 

presented a visibility hazard. No one was working at the tail pulley and 

portable lights were available if work had to be performed at that location. 

Due to the great deal. of vibration in the tunnels, lights can go out at any 

time. Allowing for eye adjustments from.the outside natural light and the 

.tunnel artificial light, he believed there was·sufficieut lighting to detect 

any obstructions along the walkway, and employees carry:their flashlights 

into both tunnels· (Tr. 106-110). 

On cross-examination, ·Mr.·Gaines testified that.no portable lighting 

was provided when he accompanied the inspector~ and while he usually carriei 

a :f;lashlight, he could not recall whether he had.one with him. Employees 

may or may not carry flashlights and this depends on.their judgment as to 

717 
the need for one at any given time. He confirmed that there was no lighting in the tail section of the C-2B tunnel due to a broken fixture, but the 

walkway stopped at that location. The broken fixture was in a room which 

encloses the tail pulley, and the only person who would have a need to be 

there is a lubrication man (Tr. 115-117). 

Findings and Conclusions 

Fact of Violation 

Citation No. 37520~, June 29, 1978~ and Citations 375450 and 375451, 

June 27, 1978, charge the respondent with violations of. the provisions of 

30 C.F.R. §§ 55.20-3 and 55.20-3(a)~ and the cited safety standards state 

as follows: 

At all mining operations: (a) . Workplaces, passageways, 

storerooms, and service rooms shall be kept clean and 

orderly. (b) The floor of every workplace shall be maintained in a clean and, so far as possible, a dry condition. 

Where wet processes are used, drainage shall be maintained, 

and false floors, platforms, mats, or other dry standing 

places shall be provided where .practicable. (c) Every floor, 

working place and passageway shall be kept free from pro~ 

truding nails, splinters; holes, or loose boards, as 

practicable. 

Citation No. 375204 concerns alleged accumulations. of materials in [:!. 

balcony area of the H-4 take-up' pulley conveyor· belt, artd Citation Nos. 

375450 and 375451 concern accumulations of materials on the walkways in the 

C-1 and C-2A conveyor belt tunnels. In each instance the inspector found 

that the materials impeded safe access for the employees and constituted 

dangerous slipping and falling hazards. With regard to Citation No. 375204, 

the inspector indicated that it was more or less a "housekeeping" violation, 

did not believe it was a "safe access" violation, and· he observed no other 

conditions constituting violations on the balcony area in question. The 

other two citations resulted from used metal parts which were apparently 

not removed from one tunnel area after maintenance, and ·relatively small 

amounts of spillage which apparently resulted from a faulty conveyor belt. 

With regard to the existence of the conditions as ~ited in each of the 

three citations, I conclude and· find that MSHA's evidence and testimony 

supports each of the citations and that the conditions- cited constitute violations. of the cited standards. 'l;'he testimony of the witnesses produced by 

the respondent does not rebut the crucial testimony- of the inspector as to 

the existence of -the materials accumulations in- question·,. but rather, goes 

to the question of the seriousness of the ·conditions presented. Under the 

circumstances, I find that MSHA has established the· ·fact ·of violation as to 

each of the three cited citationso The cited standard requires that all 

working places and passageways be kept clean.and orderly. and.based on the 

testimony and evidence that work is in fact done -at each .of the locations 

718' 
cited, the areas in question were "working places" within the meaning of that 

term as found in 30 C.F.R. § 55.2(d). Under the circumstances, all three 

citations are AFFIRMED. 

Negligence 

With regard to Citation No. 375204, respondent's witness Gaines attributed the buildup of accumulations on the balcony area to a malfunctioning 

scraper belt washer and a corroded trough. Although he indicated that 

repairs could not be made while production was going on, I cannot conclude 

. that the accumulations were something that occurred over a short period of 

time or that respondent was totally unaware of them. To the contrary, I 

find that the conditions cited should have been corrected earlier without 

the need for a citation and that respondent failed to exercise reasonable 

care to prevent the violation which it knew or should have known existed, 

and that its failure to· do so constitutes ordinary negligence. 

With regard to Citation Nos. 375450 and 375451 concerning the failure to 

keep the cited tunnel walkways clean of material spills and extraneous materials, I conclude that the testimony and evidence adduced in these proceedings supports findings that the respondent was aware of the conditions and 

that it failed to exercise reasonable care in correcting the conditions. 

Superintendent Gains conceded that certain excess conveyor parts such as 

rollers, an idler frame, and pan "liners were ·left in the tunnels after prior 

maintenance had been performed, and while he alluded ·to certain cleanup 

procedures, I am not convinced that cleanup in the tunnels was performed in 

any regular or routine way •.. Under the· cir·cumstnaces ~ -I. find that the citations resulted from ordinary negligence. 

Gravity 

The citation issued by the inspector concerning the balcony (375204) 

states that failure to clean the balcony area "prevented safe access." 

However, this conclusion is contradicted by the inspector's testimony which 

indicates that this was not the case. Further, the inspector testified that 

it was not probable that one would fall off the balcony, that he observed 

no one there when he cited the violation, that employees are not normally 

in the area while production is going on, and he characterized the citation 

as a "housekeeping" infraction. Under the circumstances, I cannot conclude 

that the conditions ~ited were serious, and I find they were not. 

With regard to Citation Nos. 37545.0 and 375451, I find that the testimony and evidence adduced supports a finding that these were serious violations. Respondent '.s own witness (Gaines) conceded that persons could slip 

on the inclined tunnel walkways if .they· were not careful and.that one would 

have to maneuver his way around some of the spillage which was present. The 

fact that he could do it safely .is .beside the point. The presence of accumulations which requires one to .climb over or around them presents additional 

hazards which would not be present if the accumulations had been cleaned up. 
Although Mr. Gaines indicated that employees are not permitted in the C-1 

tunnel while the conveyor is running, certain designated employees are 

present while the conveyor is running in the C-2 tunnel, and to this extent, 

the presence of employees in a tunnel walkway area which is obstructed 

increases the hazards presented. Coupled with the limited clearance in both 

tunnels, and the inspector's testimony concerning the overall tunnel conditions he observed on the day in question, I can only conclude that the citations were serious and respondent's testimony and evidence has not convinced 

me otherwise. 

Fact of Violations 

Citation Nos. 375452 and 375453, both issued on June 27, 1978, allege 

violations of 30 C.F.R. § 55.17-1, in that the inspector believed that 

sufficient illumination was not maintained in the C-2A and C-2B tunnels due 

to broken and burned out ligh bulbs. Section 55.17-1 provides as follows: 

"Mandatory. Illumination sufficient to provide safe working conditions shall 

be provided in and on all surface structures, paths, walkways, stairways, 

switch panels, loading and dumping sites, and work areas." 

In addition to the arguments advanced at the hearing with respect to 

these citations, the parties were afforded an opportunity to submit additional arguments in support of their respective positions, but they declined 

to do so. Accordingly, I have considered the arguments made.at the hearing 

by the parties. 

In.support of its position, respondent argues that the mine in question 

also comes under the illumination.standards established by California OSHA 

(Exh. R-2). That standard only requires as a minimum a very low level of 

illumination, or half-a-foot candle power. Since the cited MSHA standard 

only requires that "sufficient illumination shall be provided," respondent 

argues that this standard is too vague to provide any meaningful guidelines 

for compliance and that the OSHA standard is sufficient for compliance (Tr. 

111). Respondent maintains that the intent of the cited standard deals with 

the number of light fixtures which are required to maintain sufficient 

lighting and not with the question of whether light bulbs are burnt out. 

The essence of respondent's defense is that MSHA must.first establish a 

standard as to the amount of illumination required, i.e., a fixed number of 

light fixtures spaced at appropriate intervals to provide sufficient lighting, and if it can show that the required amount of illumination is not 

maintained, then it can support a violation. 

Respondent.maintains that the fact that a light bulb may be burned out 

is insufficient to establish a violation, unless MSHA can establish that the 

illumination which remains from the other f ixtur:es is not sufficient to provide adequate candle power to insure sufficient lighting for the workplace 

in question. The question of whether a violation has occurred .is dependent 

on the amount of lighting provided in an area where work is being performed, 

taking .into account any hazards presented by the lack of adequate lighting. 

Since the inspector failed to establish the.required illumination standard 
·in the. first instance, and since .he failed to make any tests with a light 

meter or other device to establish his conclusion that the lighting was not 

adequate, respondent maintains that MSHA has failed to carry its burden of 

proof. 

MSHA takes the position that it is incumbent on an operator to establish 

his own illumination standards, and that once light fixtures are installed 

and maintained through the use of.workable fixtures and bulbs which are 

burning, he has. met the requirements of ·section 55.17-:1.- However, if a 

fixture is inoperative or a· bulb is. burned out, MSHA seemingly maintains that 

the standard is violated ~ se because sufficient illumination has not been 

. maintained. 

The inspector testified that he had difficulty in seeing where he was 

going in the tunnel because his vision was impaired by the burned out light 

bulbs and he did not have clear vision. Although some of the bulbs were 

burning, the inspector.made no.effort to ascertain the remaining wattage, 

nor did he utilize a light meter to determine the actual lighting and he made 

no estimate of the existing candle power of illumination in the tunnels in 

question. He simply_concluded that the lighting was insufficient and the 

sole basis for this conclusion was the fact that bulbs were burned out at 

several locations and he had some difficulty seeing. Although he guessed 

that three bulbs were. burned out, he did not count the number of bulbs which 

were in fact burned out and had no idea as to the total illumination which 

was in fact present in the tunnels :.on the day the citations issued. When 

asked whether he believed there .was .sufficient lighting for one to detect 

.any obstructions .along the walkway, the inspector replied "Once an individual 

will allow their eyes to adjust .from the ·bright light ·outside ·to the arti~ 

ficial light inside. the tunnel, I wo.uld say yes. Now, .there is a transition 

period there" (Tr. 109-110). He· also indicated that employees do carry 

flashlights with them while in the .tunnels (Tr. 110). 

Res.pondent 's witness Gaines testified that while some bulbs were burned 

out 11 he could not .recall any two in a row being burned out. Allowing for 

a period of time for the eyes to adjust from the outside natural light, he 

believed there was sufficient lighting to alert anyone as to any stumbling 

hazards or obstructions along the tunnel walkways. He conceded the fact that 

the light fixture at the tail section of the C-2B tunnel was broken and 

inoperative, but indicated that the walkway.ended at that location. Further, 

he. indicated that the fixture was located in a room which encloses the conveyo.r tail pulley and .that the only person who had any need to be there would 

be a lubrication man. 

After careful. l'.eview of the evidence adduced and .the arguments advanced 

by the parties with respect t.o· their respectiv.e po.sitions, I conclude that 

respondent's. arguments. are well·. taken. I ·.agree with respondent.' s assertion 

that ·section 55 .. 17-1' is very broad.cand somewhat: vague in· that the question 

of .sufficient· illumination leav.es much to the: .imagination. I fail to understan4 how an inspector. can. determine that. the existing lighting· is insufficient. when he riot ·only fails· to take-a light. meter test, but also has not 

determined the amount of existing lighting. ·.On ·.the facts. her.e presented~ it 
would appear that the lighting was sufficient enough to permit the inspector 

to walk through the tunnels to make his inspection. The inspector conceded 

that he had no problem with the visibility once his eyes adjusted to the 

tunnel conditions and that bulbs were in fact burning at least in every other 

light fixture which he observed, and respondent's evidence indicates that the 

existing light was sufficient enough to permit detection of any obstacles 

which may have been on the walkways. Under the circumstances, with respect 

to Citation No. 375452, I find that MSHA has failed to establish a violation 

by any credible evidence which establishes the inspector's assertion that the 

lighting along the C-2A tunnel walkway was insufficient,' and that citation 

is VACATED. 

With respect to Citation No. 375453, although I cannot conclude that 

MSHA has established that there was insufficient lighting along the walkway 

of the C-2B tunnel, it has established that there was no lighting at all in 

the room which housed the conveyor tail section due to ·.the fact that the 

light fixture itself was completely broken. Although the walkway may have 

ended at that location, the broken light fixture provided n.o light at all and 

respondent has conceded this fact, as well as the fact that a lubrication 

man would be exposed to a hazard at that location due to the absence of any 

light. In these circumstances, I find that the failure to provide any 

lighting at all in the room in question constituted a violation of section 

55.17-1, and to this extent the citation is AFFIRMED. 

Negligence 

With regard to .Citation N,o.- 375453~. I..find -.that the respondent should 

have been aware. of· the ·fact that :the- light 'fixture i.n the C-2·B· tunnel con- . 

veyor tail pulley room area was inoperat.ive and provided no lighting at all. 

I find that the condition cited· resulted from respondent's failure to exercise reasonable care to correct. a·coridition which it knew or should have 

known existed and· that this failure on its part constitutes ordinary 

negligence. 

Gravity 

. I find that Citation No. 3754.53 is a ·serious violation. Respondent's 

witness Gaines conceded that the failure to provide any lighting in the conveyor tail room area presented a visibility hazard, and while it was true 

that no one was in the area on the day the citation issued, the fact is that 

a lubrication man is ·normally in the room performing work and the absence 

of any lighting increased the hazard presented and exposed h.im: ·to potential 

injuries. 

· Hist·ory of Prior Violations 

The' parties stipulated that the mi·ne in question has 1to ?.rior history 

of violations and I conclude that on the basis :of the record in this proceeding any incr.eased assessments on the.basis nf any .asserted prior history 

is not warranted. 

122· 
Size of Business.and Effect of Civil Penalties on Respondent's Ability to 

Remain in Business 

On the basis of the stipulated annual mine production of four million 

tons of iron ore, I conclude that respondent's mining operation at its 

Eagle Mountain Mine and Mill was a large mining operation, and the parties 

have stipulated that any civil penalty assessments. levied in this matter will 

not adversely affect respondent's ability to continue in business. 

Good Faith Compliance 

The evidence and testimony adduced in these proceedings support a finding that as to all proven violations, the respondent timely abated the 

conditions, and I conclude that they were timely abated in good faith. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions made in these 

proceedings, civil penalties are assessed for each citation.which has been 

affirmed as follows: 

Citation No. Date 

375204 06/28/78 

375450 06/27/78 

375451 06/27 /78 

375453 06/27 /78 

30 C.F.R. Section 

55.20-3 

55.20-3(a) 

55.20-3 

55.17-1 

Assessment 

$ 35 

$125 

$200 

$ 90 

On the basis of the foregoing findings and conclusions made in these 

proceedings, Citation No. 375452, June 27, 1978, alleging a violation of 

30 c.F.R. § 55.17-1, is VACATED. 

On motion by the petitioner during the hearing, Citation No. 375455, 

June 27, 1979, alleging a violation of 30 C.F.R. § 55.14-6, is VACATED. 

ORDER 

The respondent IS ORDERED to ·pay the civil penalties assessed by me 

in these proceedings·in the amounts shown above, totaling $450 within 

thirty (30) days of the date of this decision. 

Koutras 

dp·~ Administrative Law Judge 
Distribution: 

Judith G. Vogel, Esq., u.s. Department of Labor, Office of the 

Solicitor, Room 10404 Federal Building, 450 Golden Gate Avenue, 

Box 36017, San Francisco, CA 94102 (Certified Mail) 

Daniel B. Reeves, Counsel, Industrial Relations, Kaiser Steel 

Corporation, P.O. Box 58, Oakland, CA 94604 (Certified Mail) 

Standard Distribution 

72J: 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v • 

. CONSOLIDATION COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

MAR 1 9 1980 

Civil Penalty Proceedings 

Docket No. WEVA 79-35!1 

A.O. No. 46-01431-03026V 

Four States No. 20 Mine 

Docket No. WEVA 79-355 

A.O. No. 46-01433-03044V 

Loveridge No. 22 Mine 

DECISION AND ORDER 

Based on an independent evaluation and de novo review of the 

information furnished at the settlement conference of February 12, 1980 

and in the conference call of March 13, 1980, I conclude the proposal 

to settle these two unwarrantable failure 75.400 violations should be 

approved even though MSHA's policy of charging multiple violations as a 

single violation is clearly contrary to section llO(a) of the Act. 

The record shows that in Order 814147 the inspector charged the 

operator with failing to clean up combustibles in four separate and 

distinct areas on the numbers 1 and 2 conveyor belts and its contiguous 

crosscuts for a distance of 2,500 feet or approximately one-half mile. 

The inspector also charged the operator with failing to report the 

hazardous conditions in its preshift reports. 

Despite this, it is the position of the Solicitor and MSHA that 

only one violation occurred because the inspector apparently has absolute 

and uncontrolled discretion to treat multiple violations relating to 

the "same area of the mine" as a single violation. See Memoranda 

to District Managers from Cook and Shepich dated October 29, 1976 

and October 3, 1979, copies attached. 

This policy of soft enforcement is, I submit, contrary to the best 

interests of the miners as well as the declared purposes and policy 

of the Act. Section llO(a) and its predecessor section 109(a) have 

always provided that "each occurrence of a violation" is to be treated 

as a separate offense, regardless of the area, and certainly violations 

of separate standards wherever found should be treated as separate offenses. 

725 
Here four separate and distinct violations of 75.400 have been joined 

with a violation of 75.1802 in one order. And while I have no difficulty 

in reading the order as charg~ng five separate and distinct violations, 

MSHA and the Solicitor claim that because the five occurrences are recorded 

on one piece of paper and on one order they must, regardless of the law 

and logic, be treated as one violation for the purpose of (1) assessing 

a penalty and (2) for recording the violations on the operator's history. 

This may be good "policy" and even better "special interest" 

politics but I firmly believe it is weak enforcement. Small wonder 

that the operators consider the penalty assessment program little more 

than a "cheap nuisance". 

The situation is even more aggravated with respect to Order 813910. 

There the inspector wrote one unwarrantable failure order to cover eight 

separate and distinct violations of 75.400 on a longwall conveyor belt, 

its auxiliary transport belt, and in adjacent return airways. As the 

mine maps submitted for both these orders show, it strains credulity 

to accept the view that "the same area of the mine" was involved in 

these thirteen violations. The flaw in this argument, however, is that 

this is not the relevant criterion. How Messrs. Cook and Shepich 

were ever advised that the law condones "multiple violations" of the 

same or different standards if they occur in "th~ same area of the mine" 

is difficult to understand. I can find nothing in the Act or its 

legislative history which indicates Congress intended violations to be 

cheaper by the dozen. I think the Labor Department's position is bad 

law and worse policy. 

For these reasons, I refused to accept the parties original 

settlement proposal which was to reduce the total penalty as assessed 

from $4,000 to $1,750. The final agreement is to pay $4,500. 

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

as amended, be, and hereby is GRANTED. It is FURTHER ORDERED that the 

operator pay the settlement agreed upon, $4,500, on or before Friday, 

April 4, 1980 and that subject to payment the aptioned petitions be 

DISMISSED. 

Attachments (2) 

_Distribution: 

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

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Samuel P. Skeen, Esq., Consolidation Coal Company, Consol ?laza, Pittsburgh, 

PA 15241 (Certified Mail) 

726 
10: D1str1ct Mmqers. Coal MlDe Haalth Di Safety 

Pna: kt:bg Assistant AdmiDistrator--r.oal. Nine Health 

end Safetr 

M>ject: Wot1ces mtl/or Orders Cl.ting Jldtiple Violatiam 

~the past several smths attorneys in the Assod.ate Solicitor's 

Office, Mine HNlth and Safety, and OU.ef, Office of Assessaents 

kn npressed cancem respecting the practice of citing mltiple 

riolatims of wndatory health. or safety standards ln a single 

80tice of riolatian (or a Sec:ticn 164(e) Order) issued pursuant 

to Secticm 104 of the Act. Appanmtly such practices cause same 

problmzs 1n effectively bplmenthg the Act. It mkes it difficult for the Assess.mts Office, Gd In tum, the trial attorneys 

~ 

Sn the Associate Solldtor's Office, to Identify md charge the 

with ead1. riolatim obserwd md listed in the notice 

(or (c/ order). .1:a may 1nstmces 1lhere a single notice described 

or listed several riolatians there as mly me lnspectar'• state9'Dt md cmly ane "zwscmble time" for atsl!Dt. "l'b1s practice 

lms nsulted 1a sme riolatians mt hein& recognized, assessed, ar 

coated 1n the ~tor'• Jd.stary of Tiolatims. 

ltffectin apan receipt of this 1 n••lt•, la order to mre effecUftly .a.tnister the Jct wt its puposes, eech riolatim observed "1' a Smpectm- md d ted pursuant to Sect1GDS 104 (b), 104 (c) or 

lN(i) shall N c:li.d in a Mpente JiDtlce of Violatim or Order f4 

lfithd!wal. 

'!be ksic n1e to 1'e followed b that Yiolatims of aeparate stand81'ds • ane piece of equlpmat or ldmtic:al riolatims m 9ipCil&te 

,i-- of equipnent or i&mtical Yiolatiaas la· d1stiact areas of 

tile Jdne be cited cm separate notices. For ~le, if tw lhrttle 

cars each bad the ame Yiolatim it would be m> separate riolatims 

dampd. If m> diltim:t areas of the .s.ne wre tnMequatel.y l'OCk 

6lsted then 1lbldse muld M tm riolatims. 

727 
2 

liMwr', this bl not change our policy ccneem1na sltuaticm 

where then are 1111~1• violat.1C11S of the same atancls:rd all of 

which are observed tn: the course of an lnlpec:ticn md all nlated 

to tbs hm9 piece of equipaent or to the ame a'e& of the ldD8. 

Por ~le, '"AMJ.ve nil joints of the Min line track along 

Mo. 4 north 1ldJl tntry were not welded or handed be~ inby 

Mo. Z 90Uthwest track switch md extending inby for llPPt'OXima.tely 

IOO feet (Sec:. 75.514)", or, "Pour pemis1ibllity deleets, whic:h 

lncluded two openin&s In GCeSI of 0. 005 inch 1n the !lane f'lmge Joint of the min c:mtractor caapartment, a 1aose bm 11,irt l9ns 

t11 the right (open.tor's) •im h1t"'tght, rim msecured Snlpectf.an (handhold) CDftr b- tha caanyor a>tor, were detected in the 

U JJ(. cmt1mmus 8iJ11n& mch1ne In operatlan in No. Jentry 8CIUth 

ams HCtiCll (Sec. 75.503) ... In --=11 of the ebove inatm=es, 

where the OCCU1"l"llnCe an mlt1p1e Ylolatiam of the sam 1tandard 

tdi1.c:h an cmtil\DD or nlated tbly _, be treated u me Yiolaticm. 

Joseph O. ~ 

728 
OCT 3 1979 

U.S. DEPARTMENT OF LABOR 

MINE SAFETY AND HEALTH ADMINISTRATION 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

MEMORANDUM FOR: DISTRICT MANAGERS 

FROM: THOMAS J. SHEPICH 

Administrator for e 

Nonmetal Mine Safety 

SUBJECT: Citations and Orders 

Multiple Violations 

Effective upon receipt of this memorandum, in order 

more effectively to administer the Act and carry out 

its purposes, each separate violation observed by an 

inspector and cited pursuant to section 104 of the 

Act shall, except as noted below, be cited in a 

separate citation or order of withdrawal. 

The basic rule to be followed is that violations of 

separate standards on one piece of equipment, or 

violations of separate standards in a distinct area of 

a mine, or identical violations on separate pieces of 

equipment, or identical violations in distinct areas 

of a mine, shall be cited on separate citations. For 

example, if two haul trucks each had the same violation, 

there would be two separate violations charged. Likewise, 

if two distinct areas of a mine had loose rock in the back, 

there would be two separate violations charged. 

However, where there are multiple violations of the same 

standard which are observed in the course of an inspection 

and which are all related to the same piece of equipment 

or to the same area of the mine, such multiple violations 

should be treated as one violation and one citation should 

be issued. For example, "Loose ground was observed in 

four P.laces of the haulageway between 3 switch and No. 4 

x-cut' (57 .3-22); or, "At the crusher power control panel insulated bushings were not provided where insulated wires 

entered five of the metal switch boxes" (55,56, 57.12-8). 

729 
FEDERAi. MINE SAFETY AND HEALTH 11u:v1EW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone: (703) 756-6225 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

MAR 1 9 1980 

: Civil Penalty Proceeding 

Doclet No. WEVA 79-338 

A.O. No. 46-01382-03013V 

Guyan No. 4 Mine 

DECISION AND ORDER APPROVING SETTLEI1ENT 

The Solicitor filed a motion to approve a settlement in this matter 

for $375. The amount originally proposed was $750. 

The violation was due to Respondent's failure to comply with its roof 

control plan. Specifically, the motion stated that "wide places had been 

driven in five entries at the inspected mine in violation of the roof control 

plan." The motion continued that there is a serious dispute as to what the 

roof control plan required. 

The motion stated that a West Virginia state inspector accompanied the 

MSHA inspector on the day in question, and issued a citation for the same 

condition. 

The state inspector re-inspected on the next day and terminated his 

citation. When the MSHA inspector re-inspected a day later, he determined 

that the violation was not sufficiently abated and issued a withdrawal order. 

The motion stated that since the state inspector agreed with the operator 

that the condition was promptly abated, there is a dispute as to the operator's 

negligence which justifies a reduction in the proposed penalty. Additionally, 

the motion indicated that the mine had been closed since September 1979. 

Upon consideration of the motion and the six criteria set forth in 

Section llO(i) of the Federal Mine Safety and Health Act of 1977, I find that 

the proposed settlement is sufficiently substantial to effectuate the purposes 

and policies of the Act and I approve the settlement. 

ORDER 

Respondent is ORDERED to pay $375 in penalties within 30 days of the 

date of this Order. 

~ 4-4--~ tEdwin S. Bernstein 

Administrative Law Judge 

730 
Distribution: 

David E. Street, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Marshall S. Peace, Attorney for Island Creek Coal Company, 

P.O. Box 11430, Lexington, KY 40575 (Certified Mail) 

731 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th "FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone: (703) 756-6225 

MAR \ 9 \980. 

SECRETARY OF LABOR, . Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LUNAR MINING COMPANY, 

Respondent 

Docket No. PENN 79-160 

A.O. No. 36-05123-03010 

Solar No. 7 Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

The Solicitor filed a motion to approve a settlement in this matter 

for $478. The amount proposed by the MSHA Assessment Office for these 

eight citations was $736. The motion indicated that the six criteria 

set forth in Section llO(i) of the Federal Mine Safety and Health Act of 

1977 were considered during settlement negotiations. 

Citations 09903940 and 09904033 were issued because Respondent failed 

to submit timely respirable dust samples as required by 30 C.F.R. § 70.250. 

The Assessment Off ice recommended that penalties of $84 be assessed for 

each of these citations. The motion stated that penalties of $38 for each 

citation would be more appropriate. According to the motion, Respondent 

is experiencing financial difficulty, and to save money has asked an affiliated mine to take dust samples for Respondent's miners. It is thus asserted 

that Respondent was not negligent in failing to submit timely samples. I 

have serious reservations about this explanation. I do not believe that 

Respondent can avoid having the negligence of the "affiliated mine" imputed 

to it, especially when the affiliated mine was apparently retained specifically for this purpose. However, in view of recent challenges to the respirable dust program which make the outcome of this case far from certain, 

I believe the recommended settlement is appropriate and I approve it. 

Citation 0617653 was issued because a line brattice used to provide 

ventilation to the working face was installed more than 10 feet from "the 

area of deepest penetration to which any portion of the face has been 

advanced," in violation of 30 C.F.R. § 75.302-l(a) and the mine's ventilation plan. The motion stated that while Respondent's negligence was low, 

this was a serious violation because trace amounts of methane had been 

detected shortly before this area of the mine was inspected. Accordingly, 

the need for adequate ventilation was especially great. I agree with the 

Solicitor that the full $72 proposed penalty is an appropriate assessment. 

A $122 penalty was proposed for Citation 0617655, involving a violation 

of 30 C.F.R. § 75.503. A lock washer was missing from under a bolt in the 

bottom of the main contactor compartment of a· shuttle car which rendered 

732 
the car impermissible. The motion stated that Respondent's degree of 

negligence was low hecause it was difficult to detect the defect. The 

motion urges that because of the low degree of negligence, a $56 assessment is appropriate. I agree. 

Citation 0617657 was issued when it was discovered that inadequate 

ventilation was reaching a working face of Respondent's mine because of a 

loose line brattice. This constituted a violation of Respondent's ventilation plan. See 30 C.F.R. § 75.316. The motion stated that an assessment of $84 ismore appropriate for this violation than the $160 proposed 

by the Assessment Office. This is purportedly because of Respondent's low 

degree of negligence since the brattice had been properly installed, and 

was secure against the roof during earlier inspections. I approve that 

recommended settlement. 

For Citations 0617658 and 0617659, the motion stated that the original 

proposals of $48 and $44 respectively are appropriate assessments. 

Citation 0617658 involved another violation of 30 C.F.R. § 75.316, while 

Citation 0617659 involved an ommission on the mine's electrical map. See 

30 C.F.R. § 75.508. I agree. 

The final violation, Citation 0617660, was issued for not complying 

with 30 C.F.R. § 75.313, which requires an operative methane monitor on all 

electric face cutting equipment. Respondent was cited for having an inoperative monitor on a continuous mining machine. The Assessment Off ice proposed a $122 penalty. The motion stated that this should be reduced to 

$93 since (a) the miner operator carried a methane testing lamp at all 

times, and (b) the Solar No. 7 Mine had never previously liberated methane, 

nor has any methane been detected since the issuance of the citation. 

However, trace amounts of methane had been detected in the section in 

which the violation was cited. I approve the recommended settlement for 

this citation. 

ORDER 

Respondent is ORDERED to pay $478 in penalties within 30 days of 

the date of this Order. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge 

David E. Street, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Ron Corl, Lunar Mining, Incorporated, 900 - Mine 42, Windber, PA 

15963 (Certified Mail) 

733 
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, 

on behalf of William F. 

Hamrick & John L. Mead.ows, 

Applicants 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

(703) 756-6225 

MAR 1 9 JS An . "eomplaints of Discharge, 

Discrimination, or 

Interference 

Docket No. WEVA 80-48-D 

CD 79-183 

Birch No. 2-A Mine 

ORDER OF DISMISSAL 

The Secretary's October 12, 1979 Complaint alleged that in failing to 

pay Respondent's employees, William F. Hamrick and John L. Meadows, for 

one day that each spent accompanying MSHA inspectors during respirable dust 

inspections, Respondent discriminated against these employees in violation 

of Section 105(c)(l) of the Federal Mine Safety and Health Act of 1977 (the 

Act). Respondent's Answer, filed on December 20, 1979, denied these 

allegations. 

In my January 15, 1980 Order to Show Cause, I indicated my understanding 

that the Commission's decision in Secretary of Labor, Mine SAfety and Health 

Admini.stration v. The Helen Mining Company, Docket No. PITT 79-11-P, mandates 

dismissal of this case. Accordingly, I directed Applicants to show cause 

why this case should not be dismissed. 

Applicants' January 21, 1980 Response opposed dismissal. Applicants 

argued that the decision in Helen Mining was incorrect, was appealed to the 

United States Court of Appeals for the District of Columbia Circuit, and 

that "these proceedings should be stayed or held in abeyance because failure 

to stay these proceedings will result in (1) irreparable harm to the Applicants, (2) irreparable harm to the public interest, (3) no harm to Respondent 

and because there is a strong likelihood of success on the part of the 

Secretary of Labor." 

Applicants have failed to disuade me of the view that this matter should 

be dismissed without prejudice. This matter comes fully within the scope of 

the Commission's decision in Helen Mining which, along with all other Commission 

decisions, is binding on me. I am not persuaded that a dismissal of this case 

will result in irreparable harm either to Applicants or to the "public 

interest." ·This case involves a relatively small monetary claim based upon 

one day's pay for each of two miners. Irreparable harm presupposes the 

absence of an available remedy either administrative or judicial. Sink v. 

Morton, 529 F.2d 601, 604 (4th Cir. 1975). The Random House College-Dictionary 

(1973 ed.) defines irreparable as "incapable of being rectified, remedied or 

made good." 

734 
In addition, it is not within my province to "handicap" the prospects 

of successful appeals of Commission decisions. It is true that two highly 

respected Commission members dissented in Helen Mining; however, three 

other highly respected Commission members, including the Chairman, formed 

a majority. 

Finally, even successful appeals are time-consuming. In general, I am 

opposed to retaining cases in an inactive status on this office's dockets 

while a higher authority decides similar cases. A preferable solution is to 

dismiss the case without prejudice to reinstitution at such time as may be 

appropriate. 

ORDER 

This case is DISMISSED WITHOUT PREJUDICE. 

Distribution: 

#-- /. ~. ;Z: 

Edwin S. Bernstein 

Administrative Law Judge 

-

David E. Street, Esq., Office of the Solicitor, U.S. Department of 

Labor, 14480 Gateway Bldg., 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

William K. Bodell, II, Esq., Island Creek Coal Company, 2355 Harrodsburg Road, P;O. Box 11430, Lexington, KY 40575 (Certified Mail) 

Harrison B. Combs, Esq., UM1ivA, 900 - 15th Street, NW, Washington, DC 

20005 (Certified Mail) 

William F. Hamrick, Box 255, Craigsville, WV 26205 

John L. Meadows, Box 64, Cowen, WV 26206 

735 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

F~LLS CHURCH, VIRGINIA 22041 

Phone: (703) 756-6225 

MAR 1 9 1980 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EASTOVER MINING COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. VA 80-31 

A.O. No. 44-00294-03018 

Mine: Virginia Ho. 1 

ORDER OF DISMISSAL 

Petitioner filed the following Motion to Hold in Abeyance: 

"The Secretary of Labor, by his attorneys, hereby requests 

an Order holding in abeyance Respondent's Motion to Dismiss in 

the above matter. As grounds therefor, the Secretary submits: 

"1. The Citations alleged violations of § 103 (f) of the 

Federal Mine Safety and Health Act of 1977 resulting when three 

employees of Respondent suffered a loss of pay when accompanying 

an authorized representative of the Secretary on other-thanregular inspection of the mine. 

"2. This issue is now pending an appeal from the Review Commission's decisions in Helen Mining Company, 75-2518, 79-2537 

(D.C. Cir.), a~d Kentland-Elkhorn 79-2503, 79-2536 (D.C. Cir.). 

"vffiEREFORE, the Secretary requests that Respondent's aforesaid 

Motion be held in abeyance until a decision is rendered in the 

above-mentioned cases." 

Respondent did not oppose the motion. 

In Secretary of Labor, Mine Safety and Health Administration (MSHA) 

v. The Helen Mining Co., Docket No. PITT 79-11-P, 1 .FMSHRC Dees. 1796 

(1979), appeal docketed, No. 79-2537 (D.C. Cir. Dec. 21, 1979) and 

Kentland-Elkhorn Coal Corporation v. Secretary of Labor, Mine Safety·and 

Health Administration (MSHA), Docket No. PIKE 78-399, 1 FMSHRC Dees. 1833 

(1979), appeal docketed, No. 79-2536 (D.C. Cir. Dec. 21, 1979), the Commission decided that miners were not entitled to "walkaround compensation" 

under Section 103(f) of the Federal Mine Safety and Health Act of 1977 

for time spent accompanying MSHA inspectors on spot and special mine 

inspections. 

736 
Those decisions, which are dispositive of the case at hand, have 

been appealed to the United ·states Court of Appeals for the District of 

Columbia Circuit. Even successful appeals take many months and often 

even years to prosecute. Generally, I am opposed to retaining cases in 

an inactive status on this office's dockets pending appeals of similar 

cases. I feel that a preferable solution is to dismiss the cases pending 

before me without prejudice to reinstitution at such time as may be 

appropriate. 

ORDER 

This case is DISMISSED WITHOUT PREJUDICE. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge 

Catherine M. Oliver, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Karl S. Forester, Attorney, Forester & Forester, P.O. Box 935, Harlan, 

KY 40831 (Certified Mail) 

737 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

5203 LEESBl!RG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

MAR 1 9 1980 

Civil Penalty Proceedings 

Docket No. PENN 80-19 

A.O. No. 36-00807-03030 

Renton Mine 

Docket No. PENN 80-21 

A.O. No. 36-03298-03013V 

Docket No. PENN 80-22 

A.O. No. 36-03298-03014 

Laurel Mine 

DECISION AND ORDER 

Based on an independent evaluation and de novo review of the 

circumstances, I conclude the $95.00 reduction in the penalties initially 

assessed for citations 622623 and.622624 is justified and in accord with 

the purposes and policy of the Act. 

With respect to the unwarrantable failure violation cited in citation 

617909, I conclude the reduction proposed, $200, is unjustified in view 

of the gravity and negligence involved. The reason advanced, namely 

that operation of the jeep in low gear reduced the probability that its 

collision with a miner would be fatal or disabling is unpersuasive. 

Next to roof falls haulage accidents are the largestcause of fatalities 

in the mines. The knowing operation of a jeep for 10 days without a braking 

system that could be rapidly activated is inexcusable. I conclude, 

therefore, that the initial assessment of $2,000 was fully warranted. 

The citation charging a violation of 75.403 is invalid as a matter 

of fact and law. The standard requires that the incombustible content 

of a working area on an intake split be "maintained" at 65%. Here only 

one out of 14 of the band samples showed a deficiency in incombustible content. 

This is not probative of the allegation that the 2 West Section was not 

being "maintained" in a properly rock dusted condition at the time the 

violation was charged. 

738 
Accordingly, it is ORDERED that the motion as to citations 622623 

and 622624 be, and hereby· is, GRANTED. It is FURTHER ORDERED that citation 

802789 be, and hereby is, VACATED. Finally, it is ORDERED that the 

operator pay a penalty of $2,325.00 in full settlement of these matters 

on or before Friday, April 4, 1980 and that sμ\>ject to payment the 

captioned petitions be DISMISSED. J 

Distribution: 

4WJ~, Joseph B. Ke nedy 

Administrative Law Ju 

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

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

William H. Dickey, Jr •. , Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

Harrison B. Combs, Jr., Esq., United Mine Workers of America, 900 15th 

St., N.W., Washington, DC 20005 (Certified Mail) 

739 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52o:J LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR t 9 1980 

SECRETARY OF LABOR; Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VINC 79-213-PM 

A.O. No. 33-00523-05001 

Vo 

Summitville Pit and Plant 

SUMMITVILLE TILES, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department 

of Labor, Cleveland, Ohio, for Petitioner; 

James D. Primm, Jr., Esq., Lisbon, Ohio, for Respondent. 

Administrative Law Judge Melick 

Statement of the Case 

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~·· hereinafter referred to as the "Act"). Petitioner 

filed a proposal for assessment of civil penalty on March 13, 1979, alleging 

four violations on June 8, 1978, of mandatory s'afety standards. An evidentiary hearing was held on December 11, 1979, in Wheeling, West Virginia. 

Respondent (Summitville) admits the violations but contends that the 

citations were vitiated by the MSHA inspector's unlawful entry onto its 

premises. Summitville argues that it consented to the inspection only 

because the inspector misled it into believing that it would not be subject 

to penalties for any violations found on such inspection and claims that it 

had a right under the Fourth Amendment to the United States Constitution to 

deny entry to the inspector absent a valid search warrant. MSHA concedes 

that it had no search warrant but argues that none was required. It contends 

that whether or not Summitville knowingly consented to the search is 

immaterial. 

The issues in this case are (1) whether the inspection herein was lawfully conducted and, if so, (2) what are the appropriate civil penalties for 

each of the admitted violations. 

740 
I. The Legality.of the Inspection 

Summitville. concedes that its clay pit and processing plant is a "mine" 

as defined in the Act. Section 103(a) of the Act 1/ mandates "frequent 

inspections" of mines by authorized representatives. It also directs that 

no advance notice of inspections be provided, and that any authorized representative "shall have a right-of-entry to, upon, or through" any mine. Thus, 

section 103(a) requires frequent nonconsensual inspections of all mines by 

authorized representatives. See Secretary of Labor, v. Readymix Sand and 

Gravel Company, Inc., WEST 79-66-M, December 5, 1979; Secretary of Labor, v. 

Waukesha Lime and Stone Company, Inc., VINC 79-66-PM, June 5, 1979. 

Summitville nevertheless contends that a search warrant is required to 

make a nonconsensual inspection of its mine under the Act. The established 

law is to the contrary. In Marshall v. Nolichuckey Sand Company, Inc., 

606 F.2d 693, 696 (6th Cir. 1979), a warrantless inspection of a sand and 

gravel "mine" ·under the Act was upheld. The court held that the enforcement 

needs of the mining industry made provisions for warrantless searches reasonable. Similarly, in Marshall v. Stoudt's Ferry Preparation Company, 

602 F.2d 589, 593 (3rd Cir. 1979), cert. den.,~- U.S.~-' (January 7, 

1980), a warrantless inspection of the company's sand and gravel preparation 

plant was found to have satisfied the reasonableness standard set forth by 

the U.S. Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307, 321 

(1978). Within this framework of law it is clear that not only does the Act 

mandate warrantless nonconsensual inspections of "mines" such as the one at 

bar but that such inspections do not constitute unreasonable searches prohibited by the Fourth Amendment to the United States Constitution. Respondent thus has no right to refuse entry to an MSHA inspector attempting to 

conduct an inspection directed by the 1977 Act. See also Marshall v. Sink, 

No. 77-2614, U.S. Circuit Court for the 4th Circuit (January 24, 1980)-;~­

Readymix Sand and Gravel Company, supra; and Waukesha Lime and Stone Company, 

supra. 

Since a warrantless nonconsensual MSHA inspection of Summitville was 

legally permissible, it was not necessary to obtain the operator's knowing 

consent prior to such inspection. It is therefore immaterial whether or not 

°):_/ Section 103(a) of the Act provides in part: 

"Authorized representatives of the Secretary * .* * shall make frequent 

inspections and investigations in coal or other.mines each year for the purpose of (1) obtaining, utilizing and disseminating information relating to 

health and safety conditions, the causes of accidents, and the causes of 

diseases and physical impairments originating in such mines, (2) gathering 

information with respect to mandatory health or safety standards, (3) determining whether an imminent danger exists, and (4) determining whether there 

is compliance with the mandatory health or safety standards or with any citation, order, or decision issued under this title or other requirements of 

this Act. In carrying out the requirements of this subsection, no advance 

notice of an inspection shall be provided * * *·" 

741 
such consent was given before the inspection in this case. The inspection 

was in any event lawfully conducted. Moreover, I find from the credible 

testimony of Inspector Beauchchamp, corroborated by the operator's agent, 

plant superintendent Currie, that Beauchamp did not misrepresent the possible 

consequences of the inspection, and that the operator in fact gave its 

consent to be inspected. I find that at most, the Summitville Board Chairman 

Fred Johnson, misunderstood the accurate representations of the inspector. 

II. Appropriate Penalties 

Respondent has agreed that the violations occurred as charged. In considering the amount of the penalty, I have determined that the operator is 

small in size (having only six employees), that it had no history of violations and that the penalties would have no affect on its ability to remain 

in business. Each of the cited violations was promptly abated. 

Citation No. 359057 charges one violatio~ of 30 C.F.R § 55.12-34 

(relating to the guarding of lights which present a shock or burn hazard by 

their location). There were at least two unguarded light bulbs located over 

the bin area and presenting a hazard to the one employee who would occassionally work there. There was only about a 4-foot clearance at that location so an employee could easily hit the exposed bulbs with his head or arms. 

The resulting shock could have caused serious injury. I find some negligence 

as the condition should have been observed. A penalty of $32 is appropriate. 

Citation Nos. 359058 and 359059 each charge one violation of 30 C.F.R. 

§ 55.9-7 (requiring that unguarded conveyors with walkways be equipped with 

emergency stop devices along their full length). I find that the likelihood 

of injury here was probable in that an employee could easily slip or fall 

against the conveyor and be caught in the rollers. Resulting injuries could 

be serious, involving potential disability. Negligence existed in that the 

operator should readily have seen the unguarded conveyor. A penalty of $36 

for each violation is appropriate. 

Citation No. 359131 charges one violation of 30 C.F.R. § 55.11-1 

(relating to safe access to working places). Access to the adjustment plow 

above the extrusion bin was gained by an 18-inch wide platform with no guardrail. The walkway was used only occasionally to readjust the plow. Injury 

or fatality from falling into the bin would also have been unlikely since the 

material would have to be of a certain height and consistency to cause the 

anticipated hazard of suffocation. I find the operator to have been only 

slightly negligent with regard to this violation because of the improbability 

and unforeseeability of an accident. A penalty of $20 is appropriate. 

742 
ORDER 

WHEREFORE, it is ORDERED that Respondent 

30 days of the date of this decision. 

Distribution: 

$124 within 

Linda Leasure, Esq., Office of the Solici o , U.S. Department of Labor, 

881 Federal Office Bldg., 1240 East Nin 'J St., Cleveland, OH 44199 

(Certified Mail) 

James D. Primm, Esq., Moore, Primm and Conn, 118 West Lincoln Way, 

Lisbon, OH 44432 (Certified Mail) 

743 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 6 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. DENV 79-452-PM 

A/O No. 02-00842-05004 

v. 

Docket No. DENV 79-453-PM 

A/O No. 02-00842-05006 

San Manuel Mine 

MAGMA COPPER CO., 

Respondent 

DECISION 

ORDER TO PAY 

Appearances: Marshall Salzman, :::sq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California, 

for Petitioner, MSHA; 

Before: 

N. Douglas Grimwood, Esq., Twitty, Siegwright and 

Mills, Phoenix, Arizona, for Respondent, Magma Copper 

Company. 

Judge Merlin 

The above-captioned proceedings are two petitions for the assessment of civil penalties for 19 alleged violations of the Act. 

At the hearing on February 20, 1980, the docket numbers were 

consolidated for hearing and decision pursuant to agreement of counsel. 

Citations 376617, 376618, 376620 and 376702 

These citations deal with inadequate guarding for rod mills. 

30 CFR 57 .14-1. At the hearing, the Solicitor moved to modify Citation 

No. 376617 to include the conditions set forth in the other citations 

and to vacate the other citations. The Solicitor further moved to 

impose a penalty of $178 for Citation No. 376617, the amount originally 

assessed for the citations. This was the first inspection of this mine. 

From the bench, I granted the Solicitor's motions, assessed a penalty of 

$178 for Citation No. 376617, and vacated the remaining citations. 

Citations 376713, 376714, 376715, 376716, 376717, 

376718, 376719, 377140, 376711, 377141, and 377142 

These citations deal with inadequate guarding for ball mills. 

30 CFR 57.14-1. At the hearing, the Solicitor moved to modify Citation 

744 
No. 376713 to include the conditions set forth in the other citations 

and to vacate these other citations. The Solicitor further moved to 

impose a penalty of $508 for Citation No. 376713, the amount originally 

assessed for these citations. This was the first inspection of this 

mine. From the bench, I granted the Solicitor's motions, assessed a 

penalty of $508 for Citation No. 376713, and vacated the remaining 

citations. 

Citations 377137, 377138 and 377139 

These citations deal with inadequate guarding for regrind mills. 

30 CFR 57.14-1. At the hearing, the Solicitor moved to modify Citation 

No. 377137 to include the conditions set forth in the other citations 

and to vacate the other citations. The Solicitor further moved to 

impose a penalty of $152 for Citation No. 377137, the amount originally 

assessed for these citations. This was the first inspection of this 

mine. From the bench, I granted the Solicitor's motions, assessed a 

penalty of $152 for Citation No. 377137, and vacated the remaining 

citations. 

Citation 376850 

The Solicitor moved to assess a civil penalty of $98 (the originally 

assessed amount) for Citation No. 376850, which was issued for a violation 

of 30 CFR 57.17-1. From the bench, I granted the Solicitor's motion and 

assessed a penalty of $98 for this citation, since I concluded it was 

consistent with the statutory criteria. 

ORDER 

The rulings and decisions issued from the bench are hereby AFFIRMED. 

The operator is ORDERED to pay $936 within 30 days from the date of 

this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq., U.S. Department of Labor, Office of the 

Solicitor, 11071 Federal Building, 450 Golden Gate Avenue, 

San Francisco, CA 94102 (Certified Mail) 

N. Douglas Grimwood, Esq., 1700 Townehouse Tower, 100 West Clarendon, 

Phoenix, Arizona 85013 (Certified Mail) 

745 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CEDAR COAL COMPANY, 

R~spondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11 /12 

MAR 2 7 1980 

Civil Penalty Proceeding 

Docket No. WEVA 80-106 

A.O. No. 46-04628-03009V 

Coal Fork No. 1 Mine 

DECISION AND ORDER 

The parties move for approval of a settlement of a charge that the 

operator knowingly premitted an excessive accumulation of loose coal, 

coal dust and float coal dust to exist for an extended period of time 

(almost a month) along the numbers 2, 3 and 4 belt conveyors of the 

3 Left Section of the Coal Fork No. 1 Mine. The accumulation was very 

dry and extended for a distance of 1,700 feet at depths of 1 to 5 inches. 

The inspector's gravity sheet showed the potential for a fatal ignition 

was high due to the presence of 20 stuck idler rollers and two idler 

rollers with bad bearings on the number 2 belt. After a conference, the 

assessment office adhered to its original assessment of $2,000.00 based 

on a finding that the violation created a serious hazard of a fire or 

explosion and resulted from the operator's negligence. 

Based on an independent evaluation and de novo review of the 

circumstances, I find the amount of the settlement proposed, $2,000.00, 

is not in accord with the purposes and policy of the Act. MSHA's 

conclusion that only one violation occurred is erroneous as a matter 

of fact and law. See, Consolidation Coal Company, Docket Nd. WEVA 79-354, 

(March 3, 1980). The record shows that at least three separate and 

distinct safety hazards occurred as a result of the operator's unwarrantable 

failure to institute or adhere to a reasonable cleanup program. It also 

shows that the violation on the number 2 belt was extremely serious 

due to the existence of the stuck idler rollers. In addition, the fact 

that these conditions were reported as hazards in the preshift reports 

for a period of almost 30 days demonstrates a reckless disregard for 

safety by top mine management that requires a finding of gross negligence. 

746 
For these reasons, I find the amount of the penalty warranted and 

that best calculated to deter future violations and ensure voluntary 

compliance is $3,000.00. 

Accordingly, it is ORDERED that the motion to approve settlement 

be, and hereby is, DENIED. It is FURTHER ORDERED the operator pay a 

penalty of $3,000.00 in full settlement of the violations charged on 

or before Friday, April 18, 1980, and that subject to payment the captioned 

petition be DISMISSED. 

Distribution: 

Catherine M. Oliver, Esq., U.S. Department of Labor, Office of the Solicitor, 

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

David M. Cohen, ·Esq., Fuel Supply Department, American Electric Power 

Service Corporation, P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

747 
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 

(703) 756-6205 

2 8 MAR 1980 

Petitioner 

Civil Penalty Proceeding 

Docket No. VINC 78-395-P 

A/O No. 11-00599-02026 V 

Orient No. 6 Mine 

FREEMAN UNITED COAL MINING COMPANY, 

Respondent 

DECISION ON REMAND 

Appearances: Leo J. McGinn, Esq., and Sidney Salkin, Esq., Office of the 

Solicitor, U.S. Department of Labor, for Petitioner; 

Harry M. Coven, Esq., Gould & Ratner, Chicago, Illinois, for 

Respondent. 

Before: Judge Cook 

I. Procedural Background 

On August 30, 1979, a decision was issued in the above-captioned case 

which, among other things, dismissed the petition as relates to an alleged 

violation of 30 C.F.R. § 75.400. This decision was based upon a rule of 

law established by the predecessor of the Federal Mine Safety and Health 

Review Commission, the Board of Mine Operations Appeals (Board), of the 

Department of Interior. In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 

1977-1978, OSHD par. 22,088 (1977), motion for reconsideration denied, 

8 IBMA 196, 1977-1978 OSHD par. 22,328 (1977), the Board held that the 

presence of a deposit or accumulation of coal dust or other combustible 

materials in the active workings of a coal mine is not, by itself, a violation of that regulation. The Board held that other facts had to be 

proved to establish a violation. 

In the Commission's decision in Old Ben Coal Company, 1 FMSHRC 1954, 

1979 OSHD par. 24,084 (1979), it held that a violation of 30 C.F.R. § 75.400 

occurs when an accumulation of combustible materials exists without the 

additional requirements set forth by the Board. 

On the same date of its decision in Old Ben Coal Company, the Commission 

also issued a decision in the instant case reversing the decision herein insofar as it dismissed the Secretary of Labor's petition for assessment of a 

penalty for an alleged violation of 30 C.F.R. § 75.400 and remanded the case 

for further proceedings consistent with the Commission's opinion in Old Ben 

Coal Company. 

748 
Subsequent·to the remand, the parties were accorded the opportunity to 

submit additional briefs in light of the change in the law occasioned by the 

Commission's decision in Old Ben Coal Company. 'Th.e Mine Safety and Health 

Administration (MSHA) filed a brief on January 30, 1980. Freeman United Coal 

Mining Company (Freeman) did not file a brief subsequent to the remand. J:./ 

The two basic issues presented are set forth in Part IV of the August 30, 

1979, decision. 

II. Violation Charged 

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

1 LDC January 12, 1977 75.400 

III. Opinion and Findin~s of Fact 

A. Occurrence of Violation 

MSHA inspector Lonnie Conner conducted a regular health and safety 

inspection at Freeman's Orient No. 6 Mine on January 12, 1977 (Tr. 7). He 

walked the Main West North conveyor belt, arriving in the area at approximately 9:30 a.m. (Tr. 7). He issued the subject order of withdrawal at 

11 a.m. (Tr. 6, Exh. M-1), citing Freeman for violating mandatory safety 

standard 30 C.F.R. § 75.400 in that accumulations of combustible materials 

were observed along the Main West North conveyor belt (Tr. 8, Exh. M-1). 

Two airlocks were located across the belt travel entry approximately 

five or six crosscuts from the point where the subject belt dumped onto the 

Main North belt (Tr. 8). 'Th.e two airlocks were approximately 70 to 80 feet 

apart (Tr. 8). Along that 70- to 80-foot distance, the inspector observed 

float coal dust, coal dust and loose coal (Tr. 8). Immediately inby the 

first airlock, he observed large accumulations of coal dust and float coal 

dust (Tr. 8). The coal dust was 5 to 6 inches in depth where the air going 

through the airlock was blowing it off the belt (Tr. 9). The float coal dust 

was not only in the belt entry, but also in the intersecting crosscuts and 

in the entry immediately north of the belt line (Tr. 8). The inspector testified that the instability of float coal dust renders it difficult to measure 

(Tr. 10). 

The inspector proceeded from the inby airlock, traveling west on the 

south side of the belt (Tr. 10). He observed accumulations of coal and coal 

dust 2 to 6 inches deep all along the south side of the belt and underneath 

the belt up to a point 70 feet outby the tailpiece, a distance of approximately 2,300 feet (Exh. M-1, Tr. 10). 'Th.e 2,300 feet was determined by taking a measurement off the mine map (Tr. 11}. 

l:./ Freeman filed a posthearing brief on March 21, 1979. 

749 
Float co.al dust was observed on rock-dusted surfaces along the belt 

entry and intersecting crosscuts from the inby airlock to the 1,150-foot 

mark (Tr. 12, Exh. *"l). 

All depths were measured with a steel tape (Tr. 10, 11). All areas 

cited were dry, including the float coal dust (Tr. 12). The inspector testified that the belt was in operation and that the conditions were observed 

during a production shift (Tr. 7), but he did not recall whether coal was 

being loaded (Tr. 7). 

The witnesses disagreed as to the extent of the combustible accumulations. The inspector described them as deep and continuous (Tr. 250), while 

the testimony of Mr. Peter Helmer, the mine superintendent, portrays a different picture. Mr. Helmer inspected the area cited in the subject order 

of withdrawal immediately after its issuance (Tr. 267). He testified that 

he observed intermittent piles containing loose coal, rock and coal dust 

along the south side of the belt. According to Mr. Helmer, it was not a 

continuous spillage (Tr. 267). He indicated that a problem existed in that 

area of the mine with rock falling from the roof and ribs, a condition that 

makes any accumulation appear more extensive than if it consists only of 

coal (Tr. 267). However, he did not mention specifically either the presence or the absence of float coal dust in the subject area, while the 

inspector indicated that the float coal dust was present for a length of 

1,150 feet (Tr.10, 12). 

In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD par. 

22,088 (1977), motion for reconsideration denied, 8 IBMA 196, 1977-1978 

OSHD par. 22,328 (1977), the Board held that the presence of a deposit or 

accumulation of coal dust or other combustible materials in the active workings of a coal mine is not, by itself, a violation of 30 C.F.R. § 75.400. 

The Board held that MSHA must prove: 

( 1) that an accumulation of combustible material 

existed in the active workings, or on electrical equipment 

in active workings of a coal mine; 

(2) that the coal mine operator was aware, or, by the 

exercise of due diligence and concern for the safety of the 

miners, should have been aware of the existenc'e of such 

accumulation; and 

(3) that the operator failed to clean up such accumulation, or failed to undertake to clean it up, within a 

reasonable time after discovery, or, within a reasonable 

time after discovery should have been made. 

8 IBMA at 114-115. 

A petition for review of the Board's decision was subsequently filed 

with the United States Court of Appeals for the District of Columbia Circuit. 

750 
On January 16, 1979, the Court, without deciding the merits, remanded the 

case to the Commission for further proceedings. 

In its December 12, 1979, decision, cited supra, the Commission disagreed with the Board's interpretation of the standard and held that a violation of 30 C.F.R. § 75.400 occurs when an accumulation of combustible 

materials exists in active workings.:!:_/ 

Freeman, in its March 21, 1979, posthearing brief, argues that MSHA· 

has failed to prove that an accumulation of combustible materials existed 

in the mine's active workings as described in the order of withdrawal (Exh. 

M-1) (Respondent's Posthearing Brief, p. 52). In support of its position, 

Freeman points to the testimony of Mr. Helmer, which indicates that some 

rock was intermixed with the accumulations, and argues that samples were 

not taken and analyzed to determine the combustibility of the accumulation. 

I disagree with Freeman's theory for two reasons: First, visual observations 

are sufficient to prove a violation of 30 C.F.R. § 75.400. Coal Processing 

Corporation, 2 IBMA 336, 345-46, 80 I.D. 748, 1973-1974 OSHD par. 16,978 

(1973). Second, the rebutting evidence adduced by Freeman is insufficient 

to establish that rock was present in sufficient quantities to render the 

accumulations inert. Accordingly, it is found that accumulations of combustible materials were present in the mine's active workings as described 

in the order of .withdrawal (Exh. M-1). A violation of 30 C.F.R. § 75.400 

has been established by a preponderance of the evidence. 

B. 'Negligence of the Operator 

The inspector testified that he checked the preshift books, and that the 

belt had been recorded "dirty" for two shifts prior to his inspection (Tr. 

13). Acceptance of the inspector's opinion would establish gross negligence 

on Freeman's part. 

The only notations that the inspector took from the books were the 

approximate footage marks for the recorded accumulations (Tr. 13). According to the inspector, the belt was recorded dirty from the 790-foot mark 

to the 818-foot mark and, to the best of his recollection, from the 800-foot 

mark to the 880-foot mark (Tr. 13), which totaled approximately 107 feet (Tr. 

14). 

The inspector testified that, in his opinion, the coal and coal dust 

accumulated "over a period of time" (Tr. 13). Although he never expressed 

a firm opinion as to the approximate duration of the accumulations' existence, he did state on direct examination that the preshift books indicated that the condition had existed on two previous shifts (Tr. 14). He 

2/ When the decision was written in the instant case, the undersigned Administrative Law Judge was required to follow the Board's decision in Old Ben 

Coal Company in accordance with section 30l(c)(2) of the Federal Mine Safety 

and Health Amendments Act of 1977, 30 U.S.C. § 96l(c)(2) (1978). 

751 
interpreted this as meaning in excess of 16 hours (Tr. 14). On redirect 

examination, the inspector testified as follows: 

Q. Mr. Conner, did visual observations which you had 

before you have any bearing on your determination on how 

long the accumulations had been there? 

A. Yes, sir, they did. 

Q. Could you explain how? 

A. The accumulations were deep and continuous. In one 

particular spot, there was more than three ton of coal in 

one particular spot along the belt that had got there from 

some kind of dumping. So, I assume, going along with the 

pre-shift examiners' books, it is my opinion that the accumulations had been there for some time. 

(Tr. 249-250). 

The inferences drawn from the above-quoted passage, coupled with the 

inspector's recollection as to the time periods covered in the relevant 

preshift reports, lead to the conclusion that the depth and extent of the 

accumulations were interpreted in conjunction with the preshift reports in 

reaching the conclusion that the coal and coal dust had been present for 

"some time." These factors evidently led to the conclusion that the accumulations had been present for two shifts,_!_.~., more than 16 hours. 

However, the preshift reports do not support the inspector's time 

estimate. The report for the preshift examination conducted between 4 a.m. 

and 8 a.m. on January 12, 1977 (Exh. 0-6) recorded a spillage problem on the 

subject belt between "800" and "850," a distance of 50 feet (Tr. 259). The 

reports for the preshift examinations conducted between 8 p.m. and 12 midnight on January 11, 1977 (Exh. 0-7) and between 12 noon and 4 p.m. on 

January 11, 1977 (Exh. 0-8) reveal no accumulations problems along the subject belt (Tr. 260-261). Thus, a key factor in the inspector's equation 

has been proven in error, and no credible basis exists in the record to support a finding of gross negligence. 

Three workmen and a foreman were assigned to clean the area at the 

beginning of the shift and were performing their assigned task when the 

inspector walked the belt (Tr. 37, 266). 

In accordance with the ruling of the Commission in the Old Ben Coal 

Company case, action to eliminate the conditions should have taken place 

before the 8 a.m. shift began. 

In view of the entries contained in Exhibit 0-6, the 

preshift examiner, and the presence of the foreman in the 

that Freeman knew or should have known of the condition. 

has been established by a preponderance of the evidence, 

752 

knowledge of the 

area, it is found 

Ordinary negligence 
C. Gravity of the Violation 

The extensive amount of accumulation is set forth earlier in the 

decision. The accumulations provided a potential fuel source for a fire. 

Friction from belt rollers and electricity from a belt drive were identified 

as possible ignition sources (Tr. 16). 

The belt was composed of fire-resistant material (Tr. 274). The belt 

line was equipped with fire suppression devices and fire sensors (Tr. 273-

274). 

An explosion could have suspended the float coal dust in the air and 

thus could have intensified the explosion (Tr. 18, 24). An explosion would 

most likely occur in the face areas (Tr. 22), and the nearest face areas 

ranged from approximately 1,000 to 1,500 feet from the v2rious accumulations 

(Tr. 284-286). 

Any person working in the belt entry would have been exposed to 

physical danger if an ignition had occurred in the entry (Tr. 17-18). 

In view of the foregoing, it is found that the violation was very 

serious. 

D. Good Faith in Attempting Rapid Abatement 

Additional men were immediately assigned to clean the cited area (Tr. 

279). The order was terminated 24 hours after issuance (Exbs. M-1, M-2). 

Accordingly, it is found that Freeman demonstrated good faith in attempting 

rapid abatement. 

E. History of Previous Violations 

The history of previous violations at the Orient No. 6 Mine for which 

Freeman had paid assessments between January 13, 1975, and October 28, 1976, 

is set forth as follows: 3/ 

30 C.F.R. Year 1 

(12 months) 

Standard 1/13/75 - 1/12/76 

All Sections 182 

75.400 26 

Tu~2 

(9.5 months) 

1/13/76 - 10/28/76 

138 

26 

(Note: All figures are approximations.) 

2/ See Exhibit 3 filed in Docket No. VINC 78-49-P. 

753 

Totals 

320 

52 
F. Appropriateness of Penalty to Operator's Size 

The parties stipulated that Freeman United Coal Mining Company produces 

approximately 6,221,752 tons of coal per year and that the Orient No. 6 Mine 

produces approximately 1,159,797 tons of coal per year. 

G. Effect on Operator's Ability t.o Continue in Business 

Counsel for Freeman conceded in his March 21, 1979, posthearing brief 

that assessment of the maximum penalty will have no effect on the operator's 

ability to continue in business (Respondent's Posthearing Brief, p. 56). 

IV. Conclusions of Law 

1. Freeman United Coal Mining Company and its Orient No. 6 Mine have. 

been subject to the provisions of the Federal Coal Mine Health and Safety 

Act of 1969 and the 1977 Mine Act at all times relevant to this proceeding. 

2. Under the Acts, the Administrative Law Judge has jurisdiction 

over the subject matter of and the parties to this proceeding. 

3. MSHA inspector Lonnie D. Conner was a duly authorized· representative of the Secretary of Labor at all times relevant to the issuance of 

the order of withdrawal which is the subject matter of this proceeding. 

4. The violation charged in Order No. 1 LDC, January 12, 1977, 

30 C.F.R. § 75.400, is found to have occurred as alleged. 

5. All of the conclusions of law set forth in Part III, supra, are 

reaffirmed and incorporated herein. 

V. Proposed Findings of Fact and Conclusions of Law 

Freeman submitted a posthearing brief prior to the issuance of the 

August 30, 1979, decision. MSHA submitted a brief following the remand. 

Such briefs, insofar as they can be considered to have contained proposed 

findings and conclusions, have been considered fully, and except to the 

extent that such findings and conclusions have been expressly or impliedly 

affirmed in this decision, they are rejected on the ground that they are, 

in whole or in part, contrary to the facts and law or because they are 

immaterial to the decision in this case. 

VI. Penalty Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of a 

penalty is warranted as follows: 

754 
Order No. Date 30 C.F.R. Standard Penalty 

l LDC 1/12/77 75.400 $2,750 

ORDER 

Respondent is ORDERED to pay the civil penalty in the amount of $2,750 

assessed in this proceeding within 30 days of the date of this decision. 

. ~.fii?L :> 

~~trative Law Judge 

Distribution: 

Leo J. McGinn, Esq., MSHA, Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 2~203 

Sidney Salkin, Esq., Office of the Solicitor, Room 14480, Gateway 

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

Harry M. Coven, Esq., Gould & Ratner, 300 West Washington Street, 

Chicago, IL 60606 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of 

Labor 

Standard Distribution 

755 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

8 8 MAR 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 79-111 

Petitioner A/O No. 46-01483-03021 

v. 

THE VALLEY CAMP COAL COMPANY, 

Respondent 

Docket No. HOPE 79-318-P 

A/O No. 46-01483-03017 

Valley Camp No. 1 Underground 

DECISION 

ORDER TO PAY 

Appearances: Eddie Jenkins, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for Petitioner, MSHA; 

Before: 

Ronald Johnson, Esq., Schrader, Stamp and Recht, Wheeling, 

West Virginia, for Respondent, The Valley Camp Coal Company. 

Judge Merlin 

These cases are two petitions for the assessment of civil penalties 

filed under sec.tion l,.10 of the Act by the Secretary of Labor, peti~_ioner, 

against The Valley Camp Coal Company, respondent. They were duly noticed 

for hearing and were heard as scheduled on March 11, 1980. At the hearing, 

pursuant to agreement of the parties and in accordance with the regulations, 

the subject docket numbers were consolidated for hearing and decision (Tr. 3). 

At the hearing, the parties agreed to the following stipulations (Tr. 

6-7): 

(1) The operator is the owner and operator of the mine. 

(2) The operator and the mine are subject to the ju'risdiction of the 1977 Act. 

(3) I have jurisdiction of these cases. 

(4) The inspector who issued the subject citations was 

a duly authorized representative of the Secretary. 

756 
(5) True and correct copies of the subject citations 

were properly served on the operator. 

(6) Copies of the subject citations attached to the 

petition are accurate and may serve in lieu of ordinary 

documentary exhibits. 

(7) Imposition of any penalties herein will not affect 

the operator's ability to continue in business. 

(8) All of the a~leged violations were abated in good 

faith. 

(9) The operator has a moderate history of prior violations as evidenced by the printout attached to the 

stipulations which I received on February 7, 1980. 

(10) The operator is large in size. 

(11) Ordinary negligence was present in all the alleged 

violations. 

(12) All the alleged violations were of ordinary 

gravity. 

(13) The witnesses of both parties are accepted as 

experts in the field of mine health and safety. 

At the hearing, documentary exhibits were received and witnesses testified 

on behalf of MSHA and the operator (Tr. 7-187). At the conclusion of the 

taking of evidence, the parties waived the filing of written briefs, proposed 

findings of fact, and conclusions of law. Instead, they agreed to make oral 

argument and have a decision rendered from the bench (Tr. 188). A decision 

was rendered from the bench setting forth findings, conclusions, and determinations with respect to the alleged violations (Tr. 193-199). 

Bench Decision 

The bench decision is as follows: 

These cases are two petitions for the assessment of 

civil penalties. Docket No. HOPE 79-318-P contains three 

violations, and Docket No. WEVA 79-111 contains two 

violations. 

Both cases and all the violations contained therein 

present only one issue in dispute between the parties. This 

issue is whether the Souttell Run Tunnel of the Valley Camp 

No. 1 mine is covered by Part 75 or by Part 77 of the 

mandatory standards. 

757 
The violations in these cases were issued under Part 75. 

Accordingly, if Part 75 applies, the violations were issued 

under the proper sections of the regulations; whereas, if 

Part 77 applies, they were not. In paragraphs 16 and 17 of 

the detailed stipulations submitted by the parties prior to 

the hearing, it was agreed that if I should hold that Part 75 

applies, the operator does not contest the fact of violation 

and agrees to the originally assessed penalties; whereas, if 

I should hold that Part 77 applies, the parties agree that 

violations do not exist. 

The stipulations as well as the testimony which I have 

heard today describe the tunnel in very great detail. The 

tunnel is 9,200 feet long, five to five and a half feet high, 

and 14 feet wide. No coal is exposed in the entire length of 

the tunnel. Approximately 4,500 feet of the tunnel is 

covered by an overburden averaging 100 feet in height, 

another 4,500 feet of the tunnel is covered by an overburden 

averaging 120 feet, and approximately 200 feet of the tunnel 

is covered by an overburden averaging 290 feet in height. 

Twelve inches to 16 inches of the immediate overburden 

remaining over the tunnel is coal. 

The tunnel contains a conveyor belt 42 ~nches wide which 

moves beside a track composed of 40 pound steel rails. A 

barrier coal pillar of at least 250 feet separates the tunnel 

from all other areas of the Valley Camp mine. The coal that 

moves along the belt conveyor in the tunnel has been 

extracted from the mine and processed through a cleaning 

plant which admittedly is a surface installation. The coal 

is then brought by conveyor belt to the tunnel and conveyed 

through the tunnel to a loading dock along the Ohio River. 

The testimony this morning with respect to the structure 

and functions of the tunnel as compared with the operations 

which are carried on in the rest of the mine expands upon the 

stipulations previously submitted. 

In my view, the issue presented is a relatively simple 

one. Section 75.1 states that Part 75 "sets forth safety 

standards compliance with which is mandatory in each underground coal mine subject to the Federal Mine Safety and 

Health Act of 1977". Section 77.1 states that Part 77 "sets 

forth mandatory standards for * * * surface work areas of 

underground coal mines". 

These words mean exactly what they say and what they 

say is crystal clear. The Souttell Run Tunnel is not a 

surface work area because it is underground. 

758 
The stipulations of the parties and the testimony this 

morning demonstrates that the entire tunnel is under the 

ground. If "underground" means anything, it means under the 

ground. Moreover, it is agreed that this tunnel was driven 

through coal and that 12 inches of the immediate overburden 

now on top of the tunnel consists of coal. Also, the tunnel 

is adjacent to a large area of unmined virgin coal which is 

part of the subject mine. 

This is dispositive. The Souttell Run Tunnel is both 

underground and part of a coal mine. The words are too clear 

to admit of any other meaning and I cannot and will not 

distort them. Part 75 applies and the citations were therefore, issued properly. 

Moreover, there is no basis upon which to apply Part 77. 

Clearly, the tunnel is not a surface work area and to hold 

that neither Part 75 nor Part 77 applies would be a result 

at v·ariance with the intent and spirit of the Act. Indeed, 

even the operator does not contend the tunnel should be left 

unregulated. 

If the operator is not satisfied with the result reached 

herein, recourse can be had to rulemaking so as to amend the 

scope of Parts 75 and 77. I would state, as I have stated in 

other contexts on other occasions, that the administrative law 

judge is not a substitute for rulemaking. 

I decide this case on the foregoing basis. However, a 

further word appears appropriate. I recognize the testimony 

from the operator's witnesses that the tunnel is well constructed. I recognize too that the tunnel is used solely to 

transport coal. Nevertheless, I am persuaded by MSHA's 

evidence that there are hazards from methane, roof falls, and 

other circumstances that are peculiar to underground coal 

mines. And I am persuaded that these hazards apply to this 

tunnel as well as to other parts of the mine. Certainly, 

every hazard does not have to apply or be present to the same 

degree in the tunnel as in the rest of the mine for Part 75 

to apply to the tunnel. The fact that methane never has been 

detected in the tunnel also is not determinative. It is well 

known that methane can be liberated spontaneously and 

unpredictably. Finally, I am convinced that the Souttell Run 

Tunnel is an integral part of the extraction and production 

process. Admittedly, coal is transported through the tunnel 

in a somewhat different manner than in areas closer to the actual face. But everything is part of the same process. It makes 

little practical or legal sense to draw artificial distinctions 

in what is in fact one continuous activity. 

759 
Nor have I overlooked the fact that before the coal 

enters the tunnel it spends some time above the surface in 

the preparation plant. This interruption in the coal's 

_presence underground is not, in my view, determinative. 

Finally, the Act is to be liberally construed. As 

already pointed out a conclusion that neither Part 75 nor 

Part 77 applies is one to be avoided. And as between 

Part 75 and Part 77 a liberal construction is furthered 

by the application of Part 75 where, as the evidence I 

have heard today makes clear, the standards for pre-shift 

examiners are more stringent under Part 75 than those in 

Part 77. In addition, Part 75, unlike Part 77, contains 

specific standards with respect to many items involved, 

such as fire sensors, water lines, and sanding devices. 

Therefore, as an additional but wholly separate reason, 

I note the foregoing practical and policy considerations 

which in my view further support the result which is in any 

event compelled by the precise language of the mandatory 

standards. 

In light of the foregoing, I conclude that Part 75 

applies and that, therefore, as the parties have agreed, 

the citations were properly issued. I have reviewed each of 

the citations in accordance with the six statutory criteria 

and based upon this review, I conclude that the originally 

assessed amounts are appropriate and consistent with the 

provisions of the law. 

Accordingly, the operator is order to pay $372 within 

30 days for the violations contained in the subject docket 

numbers. 

ORDER 

The foregoing bench decision is hereby AFFIRMED. 

The operator is ORDERED 

decision. 

Distribution: 

days from the date of this 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Eddie Jenkins, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Ronald B. Johnson, Esq., Schrader, Stamp & Recht, 816 Central Union 

Building, Wheeling, WV 26003 (Certified Mail) 

760 
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. 

MONTEREY COAL COMPANY, 

Respondent 

8 1 MAR 1980 

Civil Penalty Proceeding 

Docket No. WEVA 80-64 

A/O No. 46-05121-03022 

Wayne Mine 

ORDER APPROVING WITHDRAWAL 

On March 5, 1980, Petitioner filed a motion for approval of the 

withdrawal of the above-captioned civil penalty proceeding and for 

the vacation of the citation at issue herein. As grounds for this 

motion, Counsel for Petitioner asserted the following: 

Citation No. 677462 was issued for a violation of 30 

CFR 77.1710(g) for failure to use safety belts and lines 

while climbing a 40 feet high steel column to a power 

station. 

Futher investigation revealed that the persons who 

were working without proper safety equipment were employees 

of the Appalachian Power Company. The respondent, Monterey 

Coal Company, was in the process of putting in a mine near 

the location of the transfer station. Appalachian Power 

Company was to provide the power necessary for that mine. 

At the time the citation was issued, employees of the 

Appalachian Power Company were working on the column to 

the power station. in preparation for their own use of this 

station in supplying power. The respondent exercised no 

control over the Power Company's work. Nor did the 

respondent monitor the progress of the Power Company's work 

in any way. Therefore, the Appalachian Power Company was 

not acting as an independent contractor of the respondent 

at the time the citation was issued. 

Furthermore, the respondent had granted an easement 

and an absolute right of way to the Appalachian Power 

Company in the metering station located at this transformer 

station. Thus, the power company was not working on 

respondent's property at the time the citation was issued. 

The power station exists near the mine, but not on the mine 

site. In addition, non of respondent's employees are 

allowed in the power station. 

761 
Respondent had relinquished all ownership rights in the 

property and respondent's employees were never present on 

the property. Consequently, respondent should not be found 

liable for a violation. 

For these reasons, it has been determined that the 

citation was issued in error. The inspector who issued the 

citation has been consulted and he agrees that, under these 

circumstances, the citation should be vacated and the 

petitioner withdrawn. 

In view of the above, Petitioner's motion is GRANTED. 

ORDER 

Petitioner's withdrawal of the above-captioned civil penalty 

proceeding is approved and Citation No. 677462 is vacated. The proceeding 

is DISMISSED. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

C. Lynch Christian, III, Esq., Jackson, Kelly, Holt & O'Farrell, 

P. O. Box 553, Charleston, West Virginia 25322 (Certified Mail) 

Sidney·Salkin, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, 

Pennsylvania 19104 (Certified Mail) 

762 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

3 l MAR 1980 

Petitioner 

Civil Penalty Proceedings 

Docket No. BARB 79-209-PM 

A.C. No. 22-00101-05001 

AMERICAN SAND & GRAVEL COMPANY, 

Respondent 

Docket No. BARB 79-210-PM 

A.C. No. 22-00101-05002 

Glendale Operations Mine 

DECISION 

Appearances: Murray Battles, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner; 

R. W. Heidelberg, Esq., Heidelberg, Sutherland & McKenzie, 

Hattiesburg, Mississippi, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

The two cases captioned above involve 26 alleged violations of the 

Federal Mine Safety and Health Act of 1977. Fourteen of those alleged 

violations involve a charge that Respondent failed to provide adequate 

guards as required by 30 C.F.R. § 56.14-1 in its three sand and gravel 

plants. Nine ~f the alleged violations are concerned with 30 C.F.R. 

§ 56.11-1 which requires safe access to working areas and three involve 

isolated items such as lack of a handrail, lack of a cover over an open 

hole, and failure to provide an aqequate means of locking out an electrical 

switchbox. The latter three allege violations of 30 C.F.R. §§ 56.9-7, 

56.11-12, and 56.12-16. 

Inasmuch as I will find that some of the violations occurred as alleged, 

I make the following findings regarding the six statutory criteria that must 

be considered in assessing a civil penalty: Respondent is of moderate size 

and no penalty that I assess will affect its ability to continue in business. 

All violations were abated promptly and in good faith and, as a matter of 

fact, inasmuch as Respondent closed down its mines when the inspector came 

and did not reopen them until all violations had been abated, I do not see 

how any better faith could have been shown in abating the violations. 

Respondent has no prior history of violarions and has received three 

certificates of achievement in safety from the Federal Government. Matters 

of negligence and gravity will be taken up with respect to each violation 

that is found to have occurred. 

763 
As to the.guarding violations, which will be taken up first, it is my 

conviction that the standard was designed to prevent accidental injuries 

but was not intended to protect someone who deliberately reaches into a 

hazardous area. As to the allegations of a failure to provide safe access, 

it is my view that the standard requires that a respondent provide safe 

access to a working area but that the standard cannot be used as a catchall 

to cover actions prohibited by other standards. I do not therefore consider a failure to provide guards as required by 30 C.F.R. § 56.14-1 to be, 

in addition, a failure to provide safe access. 

GUARDING VIOLATIONS AT PLANT A 

30 C.F.R. § 56.14-1 

Citation No. 081703, alleges that the main V-belt drive pulley on the 

1-A dredge was not adequately guarded. lhe testimony established that the 

V-belt drive in question was guarded on all sides except underneath the 

pulley. In order to get caught in the bottom part of the pulley, a person 

would have to reach under the guard and up, but it was the inspector's 

opinion, that because certain materials were stored under the pulley someone trying to get material from that area could become caught in an unguarded 

pinch point. It was in reality not an area which should be guarded but an 

area where materials should not be stored. I find that the Secretary of 

Labor has failed to carry his burden of proof with respect to this violation 

and accordingly the citation is vacated. 

Citation No. 081704 alleges that the plant A shaker V-belt drive was not 

adequately guarded. The V-belt drive was 3 feet above the catwalk and the 

top part of the pulley was guarded but the bottom was not. It is difficult 

to ascertain the exact factual situation from the testimony but there was 

testimony that in order to reach the pinch point, an employee would have to 

reach around a motor and an electrical box. The pulley itself was 6 inches 

in diameter, but there was no testimony as to whether the pinch point was at 

the top of the pulley or the bottom of the pulley. The danger of a pulley 

3 feet above the walkway not guarded at the bottom is that in slipping or 

falling a worker's hand or clothing might engage the pinch point. From the 

description given, I think it highly unlikely that a miner would accidentally contact the pinch point of the pulley. The citation is vacated. 

Citation No. 081705 alleges that the plant A shaker balance wheel was 

not guarded. This particular balance wheel had spokes and was 5 feet above 

the work platform. At first there was testimony that it was not guarded, 

but this was later amended to state that it was guarded, but not adequately. 

A short set of steps made the wheel, which was 1 foot in diameter, accessible. 

A 5-foot high unguarded spoked wheel would be covered by the standard regardless of the ladder if it were such that someone walking along the catwalk 

could accidentally become injured by the moving wheel. I am discounting the 

ladder because the only purpose of the ladder is to service the balance 

wheel and the balance wheel is only serviced when it is not working. In 

764 
my opinion the ·standard is intended to cover dangerous areas where a miner 

might be, but not up on a ladder or a set of steps where there would be no 

reason to climb were the wheet in motion. I am not convinced that this pulley 

was unguarded. The inspector changed his testimony because the pulley in 

front of the balance wheel was guarded. A miner would have to reach around 

that guarded pulley approximately 2 feet before coming in contact with the 

balance wheel. I cannot find that the condition was such that someone would 

accidentally come in contact with the wheel. A picture or diagram might have 

convinced me to the contrary, but the oral evidence was not sufficient to 

sustain the Secretary's burden of proof. The citation is vacated. 

Citation No. 081710 alleges that the sand pump V-belt drive pulley was 

not adequately guarded. There was a guard on the V-belt drive pulley that 

was supplied by the manufacturer but it was the type that was designed to 

fit down over the drive shafts so there was a portion of the lower part of 

the guard that contained an opening through which a miner could reach the 

drive pulley. The notch in the lower part of the guard was approximately 

8 by 12 inches and it was the testimony of the inspector that a miner might 

accidentally fall or reach into this area while shoveling. From the 

description, I find it was possible for a miner to accidentally engage the 

V-belt and be injured. I do not find the likelihood of such injury to be 

high nor do I find the negligence to be of a high order. The violation 

occurred, however, and a penalty of $30 is assessed. 

Citation No. 081711 alleges that the desand conveyor tail pulley was not 

adequately guarded. The pulley in question is bolted to the outer wall of 

the plant and normally it is about 10 feet above ground level. Gravel and 

sand, however, accumulate in the area under the pulley. At the time of the 

inspection, the accumulation had reached the point where the pulley was only 

4 feet above the sand and gravel. The pulley, which was 16 inches in diameter, was covered by a guard which extended approximately 1 foot to the right 

of the pinch point and approximately 6 inches to the left of it. Court 

Exhibit No. 1 is a rough drawing of the pulley and guard and, as can be seen, 

the pinch point is at the bottom of the pulley and somewhat to the left of 

the center where the moving belt first makes contact with the pulley. The 

danger point is not the pulley itself, but the point where the belt and 

pulley meet to create a "wringer" effect which could draw a hand or a miner's 

clothing into the belt and pulley. As the drawing shows, the guard extended 

farther to the right than it did to the left, even though the pinch point 

was on the left side. While I do not think it very likely, I think it is 

possible for a miner to accidentally become enmeshed in this pinch point. 

Gravity and negligence are minimal, however. A penalty of $30 is asse~sed. 

GUARDING VIOLATIONS AT PLANT B 

Citation No. 081713 alleges that the desand conveyor head pulley was not 

guarded. The head pulley in question was 3 to 3-1/2 feet above the catwalk 

next to the conveyor, was 24 inches in diameter, and was unguarded. The 

inspector saw a man walking near the head pulley and was told that the man 

had to check the system while it was running. The inspector did not observe 

765 
a chain guard that "WOuld prohibit someone from approaching the pulley. It 

was a cl~ar violation, it was hazardous, and Respondent was negligent in 

allowing the condition to exist. A penalty of $60 is assessed. 

Citation No. 081715 alleges that the reclaim conveyor head pulley was 

not guarded. The head pulley in question was 26 inches in diameter, was 

located 3 feet above the catwalk and was attached to an I-beam framework 

which was between the catwalk and the pinch point of the pulley. The pinch 

point was only 7 inches inside the outer edge of the I-beam and in my 

opinion, a tripping or slipping miner trying to catch himself might well 

contact the pinch point. A hazard existed and the violation was established, 

but negligence was of a low-degree because of the channel iron framework 

around the pulley. A penalty of $30 is assessed. 

Citation No. 081716 alleges that the desand pump V-belt drive was not 

adequately guarded. The unguarded V-belt drive mechanism is located in a 

framework supporting a tank. This cubicle area below the tank measured 

4 feet wide on each of four sides and 6 feet tall. 1bree of the four 

sides were guarded with screen mesh. The fourth side was open but was partially blocked by a pump and its supports. It was testified that, while the 

screened area was not entered while the machinery was working, it would be 

possible to squeeze into the area beside the pump housing and contact the 

drive mechanism. (The unguarded drive can be seen at the center of the 

photograph labeled Respondent's Exhibit No. 1.) While someone could 

deliberately enter this screened area and become injured, it is not, in my 

opinion, probable that someone would accidentally fall into or otherwise 

enter this area. I therefore rule that no violation has been proved with 

r~spect to this citation and the citation is accordingly vacated. 

Citation Nos. 081717 and 081718 charged respectively that the head 

pulleys on the long and short conveyors were not guarded. 1bese citations 

are treated together as the testimony indicates almost identical conditions. 

Court Exhibit 2 is a drawing of the areas that were guarded. 1be inspector 

testified that the pulleys were not guarded, and it is true that there was 

not a separate guard on each pulley. But in each case there was a V-belt 

drive driving the head pulley and the V-belt drive was guarded. The pinch 

point for the head pulley was at the top of the pulley and directly behind 

the guard for the V-belt drive. Considering the drawing (Court Exh. 2) 

together with the testimony, I find it highly unlikely that any miner could 

accidentally be injured by the pinch point of the drive pulley which is some 

16 inches behind the guard. 1be two citations are accordingly vacated. 

GUARDING VIOLATIONS AT PLANT F 

Citation Nos. 081720 and 81723 both allege that the tail pulley and feed 

trough areas were not adequately guarded on the concrete conveyor and sand 

conveyor respectively. The alleged violations are sufficiently similar to be 

treated together. In both cases (see Respondent's Exh. 6), there is an 

unguarded pinch point on the troughing idlers which is created by the metal 

766 
feed trough. The citations also allege that the tail pulleys themselves 

were not adequately guarded by the factory-mounted guard. The testimony 

regarding the pulley itself is not sufficiently clear to determine that a 

violation existed, but the pinch points in the troughing area were unguarded. 

As to whether or not the standard requires such guards, I hold that it does 

and I am attaching hereto my decision in Dravo Limestone Corporation v. MSHA, 

Docket No. IBMA 77-M-l, (October 28, 1977) which explains why I consider the 

standard to apply. The violations were serious, but I consider the negligence to be low as it is unlikely that a mine operator would realize that 

this standard covered idling pulleys in a trough area. A penalty of $30 

is assessed for each citation. 

Citation No. 081726 alleges that the desand pump V-belt pulley was not 

adequately guarded. This pulley contained a factory-made guard with a notch 

measuring 8 by 12 inches, cut so that the guard could be slipped down over 

a drive shaft. Except for location, the factual situation is the same as 

that involved in Citation No. 081710 and my findings with respect to this 

citation are the same. A penalty of $30 is assessed. 

Citation No. 081729 alleges that the gravel shaker conveyor tail pulley 

and an extended shaft were not adequately guarded. The inspector testified 

that the factual situation, except for location, was the same as that 

involved in Citation No. 081711. My decision is the same and a penalty of 

$30 is assessed. 

SAFE ACCESS CITATIONS AT PLANT A 

30 C.F.R. § 56.11-1 

Citation No. 081706 alleges that a safe means of access was not provided for the pea gravel conveyor. The head pulley at the end of the catwalk was unguarded and there was no railing in the area where maintenance 

was performed on the pulley. There was, however, a chain guard approximately 4 feet from the end of the catwalk where the pulley was located. 

In order to do maintenance work on the head pulley, it was necessary to 

cross the chain barrier, but at such times the pulley and belt were not 

in operation. I think the chain guard is adequate to keep out miners having 

no 'WOrk to do in the area, but of course it was not sufficient to keep out 

out maintenance men who needed access to the pulley to perform their jobs. 

Since the machinery did not operate while maintenance work was being done, 

these miners were not endangered by the pulley, but by a falling hazard. 

It is that falling hazard which, in my opinion, establishes the violation 

here. The negligence was very low, however, and MSHA has not convinced 

me that the falling hazard was great. A penalty of $20 is assessed. 

Citation No. 081707 alleges that a safe means of access was not provided at the oversize conveyor head pulley. 'lltis is the same factual 

situation as in Citation No. 081706, except for the location. I make the 

same findings and a penalty of $20 is assessed. 

767 
Citation No-. 081708 alleges a safe means·of access in the load-out 

conveyor head pulley area was not provided. This is the same situation as 

in the two previous citations, except for the location and I make the same 

findings. A penalty of $20 is assessed. 

Citation No. 081712 alleges a safe means of access was not provided in 

the desand conveyor head pulley area. Again, the factual situation, except 

for location, is the same as in Citation No. 081706 and the two alleged 

violations considered after that. My findings are the same and a penalty 

of $20 is assessed. 

SAFE ACCESS CITATIONS AT PLANT F 

Citation No. 081721 alleges a safe means ~o perform maintenance was not 

provided at the concrete sand conveyor head pulley drive. This conveyor had 

no catwalks or handrailings and the inspector was told "we walk the belt" 

(Tr. 128) to maintain the conveyor. No safety belts were used and the conveyor is 15 feet above ground. The defense witness indicated that maintenance was performed from the bucket of a front-end loader and that other 

inspectors had not objected, but I think the defense witness was confused as 

to which citation he was being questioned about. I find that the violation 

occurred, that Respondent was negligent, and that a falling hazard existed. 

A penalty of $40 is assessed. 

Citation No. 081722 ·alleges a safe means of access was not provided 

to perform maintenance on the mason sand conveyor head pulley drive. The 

factual situation, except for location is the same with respect to this 

violation as in Citation No. 081721. I make the same findings and a penalty 

of $40 is assessed. 

Citation No. 081724 alleges that a safe means of access to perform maintenance to the track cross-conveyor was not provided. Maintenance was performed on the track cross-conveyor by having employees work from a front-end 

loader bucket that is raised to the level of the conveyor. The inspector 

testified that maintaining machinery from loader buckets is a common cause 

of accidents throughout the industry. I think this is the citation that the 

defense witness was talking about when he stated that other inspectors had 

known of the practice and not disapproved. Be that as it may, the bucket 

could fall with the men in it or it could be moved unintentionally and I 

am convinced it is a hazardous situation. I find the violation occurred, 

that Respondent was negligent, and that a hazard existed. A penalty of 

$40 is assessed. 

Citation No. 081727 alleges a safe means of access was not provided to 

the desand conveyor head pulley drive. This is the same type of factual 

situation presented in previous citations where a chain barrier is located 

. approximately 4 feet from an unguarded pulley drive, and there is no end 

railing at the pulley drive end of the elevated catwalk. I make the same 

findings as I did with respect to Citation No. 081706 and others. A penalty 

of $20 is assessed. 

768 
Citation No. 081730 alleges a safe means to perform maintenance was 

not provided at the gravel shaker conveyor head pulley drive. In order to 

grease the head pulley, miners were required to stand on the conveyor belt 

and no safety belts were provided. A fall of 10 feet could result. While 

the factual situation was not described in sufficient detail for me to 

make a finding of extreme hazard, I do find there was sufficient hazard 

to constitute a violation and that Respondent was negligent. A penalty 

of $40 is assessed. 

CITATIONS NOT INVOLVING GUARDING OR SAFE ACCESS 

Citation No. 081709 alleges a violation of 30 C.F.R. § 56.9-7 in that 

there was a missing piece of handrailing in the guard for the load-out 

conveyor. The piece of handrailing missing was 42 inches in length. The 

railing itself totaled about 400 feet. The standard cited does not require 

a guard rail, but it requires that an unguarded conveyor be equipped with -

a stop cord. It may seem unreasonable that a stop cord should be provided 

on this conveyor because of the 42-inch gap in the railing, but that, nevertheless, is what the regulations require. I find the hazard of falling 

onto the belt through this 42-inch gap of a low order and I also find the 

negligence of a low order. But a violation did exist. A penalty of $30 is 

assessed. 

Citation No. 081725 alleges a violation of 30 C.F.R. § 56.11-12 in that 

a cover was not provided over an open hole, at the top gravel-loading platform. The platform in question was 20 feet above ground level and the two 

planks that had been removed left an opening measuring 6 feet by 20 inches. 

The danger was to "stick pickers" who might fall through the hole. The 

defense was that this platform was not a work area, had been used four times 

in 6-1/2 years and that before any stick pickers performed this rare chore, 

all holes in the platform were covered. Under the circumstances, I find 

that this was not the type of area contemplated by the standard cited, and 

the citation is accordingly vacated. 

Citation No. 081728 involves an alleged violation of 30 C.F.R. 

§ 56.12-16 in that an adequate means of locking out an electrical switchbox 

was not provided. After the inspector's testimony, the attorney for the 

Secretary realized that the evidence did not establish a violation of the 

safety standard and withdrew the citation from his petition. The citation 

is accordingly vacated. 

ORDER 

It is therefore ORDERED that Respondent pay to MSHA, a civil penalty in 

the total amount of $560 within 30 days of the entry of this order. 

Charles 

~c01~1. c. Moore, Jr. / ' 

Administrative Law Judge 

769 
Distribution: 

Murray Battles, Esq., Office of the Solicitor, U.S. Department of Labor, 

1929 9th Avenue South, Birmingham, AL 35205 (Certified· Mail) 

R. W. Heidelberg, Esq., Heidelberg, Sutherland & McKenzie, The 301 West 

Pine Building, P.O. Box 1070, Hattiesburg, MS 39401 (Certified Mail) 

770 
U nitcd Sta tcs Department of the I ntcrior 

OFFICE OF IfE:\IU'.\"GS :\:\J) APPEALS 

HEARINGS DIVISION 

4015 \Vil.SO:-./ ROl'UX.-\Rll 

ARLINGTON, \"IRGINI.'\ :2'..!'..iOJ 

October 28, 1977 

DRAVO LIME COMPANY, 

Petitioner 

Application for Review 

v. 

MINING ENFORCEMENT AND SAFETY 

ADMINISTRATION (MESA), 

Respondent 

DECISION 

Docket No. IBMA 77-M-l 

Order No. 7; November 2, 1976 

Federal Metal and Nonmetallic 

Mine Safety Act 

Cabin Creek Mine 

Appearances: Louise Q. Symons, Dravo Corp., Pittsburgh, Pennsylvania, 

for Petitioner; 

Robert Cohen, Esq., Office of the Solicitor, Depar~ment 

of the Interior, for Respondent. 

Before: Administrative Law Judge Moore 

This case involves review of an order of withdrawal issued under 

the Federal Metal and No~~etallic Mine Safety Act. The order is 

similar to a 104(b) order under the Federal Coal Mine Health and 

Safety Act of 1969, in that it was issued because of applicant's 

·failure to abate Notice of Violation No. 105 which was issued on 

June 9, 1976. Unlike the procedures under the Coal Mine Health and 

Safety Act however, the belt in question was not closed even though 

it was the subject of a withdrawal order. While the parties d:i.d not 

explain this anomaly in detail, they are in apparent agreement that 

the appropriate. way to obtain review of an order of withdrawal is 

to fail to comply with it. 

The facts themselves are not in dispute. Applicant operates a 

conveyor belt which is skirted in a certain area and it has not 

placed guards in that are~. The question is whether the standard 

requires guards in a skirted area of a conveyor belt. 

Applicant's Exhibits 2, a scale drawing, 1/ and 3, a photograph, 

clearly depict the area which ~IBSA contends should be guarded. The 

!/ A portion of the drawing is attached to this decision. 

771 
area in question is where the belt designated LS-1 bringing limestone 

out of the mine dumps on to the belt designated LS-2 which transports 

the limestone to a stock pile for future milling. For dust control 

purposes the entire dumping area is shielded with plate metal with 

rubber belting attached to the sides of the shielding. This rubber 

belting attached to the plate metal rubs against the belt itself 

forming a dust shield. MESA does not contend that all idler rollers 

should be shielded, because if a miner caught his hand between the 

roller and the belt in an unskirted area, the belt could give way 

and his hand could be withdrawn. In the skirted area however, there 

is only five-eighths of an inch 2/ between the side of the metal 

skirt and the belt so that if a ;-iner's hand got caught between the 

roller and the belt, the belt could only raise up five~eighths of 

an inch before being stopped by the metal skirt. It is HESA's contention that this constitutes a "pinch point" which in turn gives 

rise to the requirement of guards to prevent any part of a miner's 

body from being caught in such a 11 pinch point." In this instance, a 

pinch point is something like a clothes wringer. 

The mandatory standard allegedly violated, 30 CFR 57.14-1 states: 

"Mandatory. Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; fly wheels; 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." It 

has been conceded that if the above-quoted standard does not require 

guards at the "pinch points" previously described, that there is no 

other regulation that would require such guards. 

It is conceded by MESA that the idler rollers involved in the 

instant case are not among the items listed in the standard, such 

as drive, head, tail, and. takeup pulleys or gears, sprockets, chains, 

couplings, shafts, sawblades or fan inlets. It is argued however, that 

the existence of the "pinch point" together with the ladder and catwalk beside the conveyor belt causes the idler rollers to become 

"similar exposed moving machine parts which may be contacted by persons, and which may cause injury***·" Most of the pieces of equipment specifically referred to in the standard are rotating items with 

nonsmooth surfaces - gears, sprockets, chains, sawblades, fan inlets. 

Fly wheels may be either solid or £poked, couplings and shafts could 

be rough or smooth, and head, drive, tail and takeup pulleys are generally smooth. Obviously the idler pulleys involved in the instant 

case are not similar to sawblades or gear sprockets, so if they are 

similar to anything mentioned in the standard, it is the drive, head, 

tail, or takeup pulleys. 

Drive pulleys, head pulleys, tail pulleys and takeup pulleys 

all contain "pinch points" (Tr. 55-56, MESA Exhibit R-6, pages 2 

and 3) that was undoubtedly the reasons why these particular pulleys 

.?../ This is the distance shown on Applicant's Exhibit 2,·but the 

testimony indicates that it varies. 

772 
were specifically included in the standard. Idler pulleys however, 

do not contain "pinch points" as a rule, because _the belt has leeway 

to move away from the idler pulley in the absence of a skirted area 

such as the one involved in the instant case. It is the "wringer 

effect" which can cause a serious injury. It is my opinion, that 

the combination of the skirted belt with the catwalk and ladder next 

to it causes the idler pulleys to become "similar exposed moving 

machine parts which may be contacted by persons, and which may cause 

injury * * *·" 

The existence of a stop cord beside the belt which will stop 

the drive and result in the belt stopping after a movement of approximately 22 feet may diminish the extent of a potential injury but 

would not prevent the injury unless pulled five seconds before contact with the "pinch point" (See MESA Exhibit R-5, page 3 and Tr. 52). 

I certainly disagree with the implication on page 11 of petitioner's 

brief that MESA is attempting "to guard against the ultimate in stupidity." I consider the likelihood of a miner stumbling on the ladder 

or catwalk and having his hand or some other part of his body or 

clothing caught in the "pinch point" sufficiently high to require MESA 

to interpret the regulation as it did. I interpret it the same way 

and hereby AFFIRM the order of withdrawal. 

All proposed findings not included above are rejected. 

G/1-?A (. /17? t:Jr/17/ ~ · Charles C. Moore, Jr • 

. Administrative Law Judge 

Date Entered: October 28, 1977 

Distribution: 

Louise Q. Symons, Esq., Counsel for Dravo Li.me Co., Dravo Corp., 

One Oliver Plaza, Pittsburgh, PA 15222 (Certified Mail) 

Robert A. Cohen, Esq., Mining Enforcement and Safety Administration, Office of the Solicitor, 4015 Wilson Blvd., Arlington, 

VA 22203 

773 
-·.I 

~~ LINKBELT II 

Sl<IRTBOARD RUBBEHRETAlf\JER 

SKIRTBOARD FRAf\'iE 

SKIRTBOARD RUBBE, 

•u.s. GOVERNMENT PRINTING OFFICE : 1980 0-311-143/3453