5-11-81 

5-11-81 

5-12-81 

5-18-81 

5-18-81 

5-01-81 

5-04-81 

5-06-81 

5-06-81 

5-06-81 

5-07-81 

5-07-81 

5-ll-81 

5-13-81 

5-13-81 

5-14-81 

5-14-81 

5-15-81 

5-15-81 

5-26-81 

5-27-81 

5-27-81 

5-29-81 

5-29-81 

May 1981 

Commission Decisions 

Ronnie R. Ross and MSHA v. Monterey Coal Co., 

McNally-Pittsburgh Corp., and Looking Glass 

Construction Co. 

Local 781, District 17, UMWA v. Eastern Assoc. Coal 

Ralph Foster & Sons 

Pocahontas Construction Co. 

Old Ben Coal Corp. 

Administrative Law Judge Decisions 

Brown Brothers Sand Co. 

MSHA ex rel James F. Coulter v. Cotter Corp. 

Crawford County Mining, Inc. 

Itmann Coal Co. 

U S Steel Corp. 

Mulzer Crushed Stone Co. 

Valley Camp Coal Co. 

Assonet Sand & Gravel Co. 

Frank L. Miles, Ben Leiler 

VINC 78-38 

Corp.WEVA 80-473-C 

WEST 79-397-M 

WEVA 81-109-M 

VINC 74-157 

SE 80-124-M 

WEST 81-11-DM 

SE 81-10-M. 

Kennecott Copper Corp. and M.M. Sundt Construction Co. 

Aaron Mining Inc. 

WEVA 80-226-R 

WEVA 81-263-R 

LAKE 80-299-M 

WEVA 81-71-D 

YORK 80-123-M 

WEST 80-332-M 

WEST 79-141-M 

WEST 81-99-DM 

Island Creek Coal Co. WEVA 80-658 

United Minerals 

Alabama By-Products Corp. 

Ozark-Mahoning Co. 

Asarco, Inc. 

Northern Coal Co. 

Eddie Coal Co. Inc, 

Davis Coal Co. 

SE 80-131 

SE 80-121 

LAKE 80-336-M 

SE 80-125-RM 

WEST 80-313-D 

KENT 79-264 

WEVA 80-663 

Pg. 1171 

Pg. 1175 

Pg. 1181 

Pg. 1184 

Pg. 1186 

Pg. 1203 

Pg. 1209 

Pg. 1211 

Pg. 1221 

Pg. 1228 

Pg. 1238 

Pg. 1243 

Pg. 1248 

Pg. 1254 

Pg. 1259 

Pg. 1262 

Pg. 1265 

Pg. 1277 

Pg. 1289 

Pg. 1293 

Pg. 1300 

Pg. 1331 

Pg. 1348 

Pg. 1374 

Commission Decisions 

·MAY 

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

Elias Moses v. Whitley Development Company, KENT 79-366-D; (Judge 

Steffey, March 31, 1981) 

Secretary of Labor, MSHA v. Southwestern Illinois Coal Corporation, 

LAKE 80-216; (Judge Koutras, April 7, 1981) 

Secretary of Labor, MSHA v. Pocahontas Construction Company, WEVA 81-109-M; 

(Judge Broderick, Default Decision, April 8, 1981) 

Frederick Bradley v. Belva Coal Company, WEVA 80-708-D; (Judge Broderick, 

April 10, 1981) 

Secretary of Labor on behalf of William Johnson v. Borden, Inc., 

SE 80-46-DM; (Judge Laurenson, April 13, 1981) 

Review was Denied in the following Cases during the month of May: 

Secretary of Labor, MSHA v. Evansville Materials, Inc., LAKE 80-82-M; 

(Judge Fauver, March 25, 1981) 

Secretary of Labor, MSHA v. Madison Granite Company, WEST 80-101-M, 

etc.;(Judge Merlin, March 27, 1981) 

Secretary of Labor, MSHA v. Mulzer Crushed Stone Company, LAKE 80-303-M; 

(Judge Laurenson, April 8, 1981) 

Charles E. Blankenship v. W-P Coal Company, WEVA 79-336-D; (Judge Koutras, 

April 16, 1981) 

Secretary of Labor, MSHA v. B. L. Anderson, Inc., DENV 79-539-PM; 

(Judge Fauver, April 17, 1981) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20oo6 

May 11, 1981 

RONNIE R. ROSS 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MONTEREY COAL COMPANY, 

McNALLY-PITTSBURGH CORPORATION, 

AND LOOKING GLASS CONSTRUCTION 

COMPANY 

: 

DECISION 

VINC 78-38 

This case involves an application for review of allegedly discriminatory conduct in violation of section llO(b) of the Federal Coal 

Mine Health and Safety Act of 1969, 30 U.S.C. §801 ~~ (1976)(amended 

1977). Ronnie R. Ross alleges that his employer, McNally-Pittsburgh, by 

placing a letter in his employment file~ illegally discriminated against 

him for engaging in protected activity; and that Monterey Coal Company 

also is liable for this violation because it caused the letter to be 

placed in his file, and because it was the owner of the job site. 1/ 

Following a full evidentiary hearing, the administrative law judgedenied the application and dismissed the proceedings. For the reasons 

that follow, we affirm the judge. 

In 1974, Monterey Coal Company began development of the Monterey 

No. 2 underground coal mine near Albers, Illinois. At the time of the 

violation alleged in this case, the underground portion of the mine 

development was completed and coal was being mined. Monterey had 

contracted with McNally-Pittsburgh, a construction firm, and with several 

other firms to construct surface facilities and accomplish other related 

activities at its mine. Ronnie Ross was employed by NcNally from May 

1975 until August 1978 at the Monterey site. 

1/ Ross also alleged that Looking Glass Construction Company, another 

independent contractor at the Monterey job site, discriminated against 

him. The administrative law judge's conclusion that Looking Glass did 

not violate the Act was not directed for review by the Commission. 

t ':~;-1 ..;.. .J... I . 81-5-6 
From the fall of 1975 until May 1978 Ross was a United Mine Workers 

of America safety committeeman for McNally employees. In the spring of 

1977, Ross became chairman of the UMWA Local 2015 safety committee, 

which consisted of the members of each of the Monterey site contractors' 

safety committees. While chairman, Ross continued to represent 

McNally's employees as one of'their safety committeemen. He and the 

other McNally committeemen toured their job site monthly and reported 

safety violations to McNally's management. Toward the end of his 

employment, Ross's practice was to prepare requests for inspections by 

the Mining Enforcement and Safety Administration listing conditions 

which Ross or his committee believed violated the 1969 Coal Act. 2/ 

When Ross accompanied MESA inspectors on their inspections~ he traveled 

throughout the entire Monterey project and did not restrict his travel 

to the McNally site. }_/ 

During the latter part of October 1977, an official of Monterey 

Coal Company advised Charles Bradley, McNally's superintendent for 

construction, that Ross had been observed in the slope area of 

Monterey's underground operations, an area where no McNally employees 

were working. Following this incident, Bradley instructed Bob Stearman, 

McNally's project superintendent, to limit the McNally Health and Safety 

Committee's inspections to McNally's work areas. Other reports of 

Ross's presence in non-McNally work areas were reported to McNally 

officials. 

On November 4, 1977, Ross and his committee conducted a safety 

inspection and prepared a request for inspection under section 103{g). 

This request alleged, among others, safety violations by Looking Glass 

Construction Company. This request was given to federal inspectors on 

November 8 when they arrived to conduct an inspection at the Monterey 

mine site. Ross and another McNally safety committeeman accompanied 

the federal inspectors, as did management representatives from McNally 

and Monterey" 

During the course of the inspection, an oral confrontation took 

place between Ross and the president of Looking Glass. McNally's construction superintendent Bradley was notified of the incident by one of 

the McNally supervisors on November 8, 1977, or soon thereafter. 

Bradley instructed project superintendent Stearman to write Ross a 

letter to document previous oral instructions limiting the McNally 

Health and Safety Committee 1 s activities to McNally 1 s work areas. 

Subsequently, Ross was given a letter dated November 30, 1977, and 

signed by Stearman which stated: 

2/ Section 103(g) of the Act gave a representative of the miners the 

right to file a written request for an inspection by MESA if he had a 

reasonable ground to believe that a violation of a mandatory standard 

existed. Upon the receipt of the written request, MESA was required to 

inspect as soon as possible. 

3/ Section 103(h) of the Act permitted an authorized representative of 

the miners to accompany the representatives of the Secretary on their 

inspections. 

1172 
This is to advise you that your duties as Project 

Union Health and Safety Committeeman are limited 

exclusively to McNally Operations at the Monterey Coal 

Mine No. 2. 

In the event of your violating the above, you will be 

suspended--Subject to discharge. 

This letter forms the basis for Ross's discrimination claim. Ross 

acknowledged, however, that even after the issuance of the letter, he 

continued to inspect McNally's and other sites and was not discharged, 

reprimanded or otherwise penalized. !±/ 

The administrative law judge found that the disciplinary letter 

was given to Ross for engaging in activities off his work site not 

authorized by his employer, and was not issued in retaliation for Ross's 

reporting of alleged dangers or violations to the Secret"ary. He therefore concluded that no violation of section llO(b)(l)(A) occurred and 

dismissed the proceedings. 

After a careful review of the record, we are persuaded that the 

judge's conclusion is supported by the evidence and should not be 

disturbed. The record supports the finding that the letter was 

issued to protect a legitimate managerial interest in controlling 

the activities of its workforce. The judge did not draw the 

inference, argued for by Ross and the Secretary, that the letter was 

issued in retaliation for Ross's exercise of rights protected by the 

Act, e.g., notifying the Secretary of alleged hazards or violations 

or accompanying federal inspectors during their inspections. The 

record does not establish that Ross's exercise of his statutory rights 

in fact was in any way restricted; therefore, we cannot say that the 

judge erred. 5/ Compare Local Union No. 1110, United Mine Workers of 

America and Robert L. Carney v. Consolidation Coal Co., 1 FMSHRC 338 

(1979)0 

Accordingly, the decision of the administrative law judge is 

affirmed. 2_/ 

!:_/ We also note that the letter was removed f m Ross's employment 

file prior to hearing, the McNally contract at is completed, 

and Ross is no longer employed by McNally. 

5/ This decision should not be construed as affirming a policy of 

limiting safety committee inspections to the employer's area in all 

circumstances. 

6/ In view of our disposition, we need not reach the issue of 

Monterey's liability as owner for the act of its contractor, McNallyPittsburgh. 

11'73 
Distribution 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

William Howe, Esq. 

Richard A. Steyer, Esq. 

Loomis, Owen, Fellman & Howe 

2020 K Street, N.W. 

Washington, D.C. 20006 

Mr. James E. Heimann 

President 

Looking Glass Construction Co. 

Germantown, Illinois 62245 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

LOCAL UNION NO. 781, May 11:, 1981 

DISTRICT 17, 

UNITED MINE WORKERS OF AMERICA 

v. Docket No. WEVA 80-473-C 

EASTERN ASSOCIATED COAL CORP. 

DECISION 

The issue in this case is whether miners are entitled to compensation under section 111 of the Federal Mine Safety and Health Act of 1977 

("the 1977 Mine Act"), 30 U.S.C. §821 (Supp. III 1979), where a withdrawal order under section 103(k), 30 U.S.C. §813(k), was issued after 

the miners had already withdrawn from the mine pursuant to their 

collective bargaining agreement's non:...compensated "memorial period." 

For ~he reasons stated below, we affirm the judge's finding that on the 

facts present here there is no entitlement to compensation. 

The facts are undisputed. At approximately 1:30 a.m. on March 19, 

1980, a miner was fatally injured in the Wharton No. 4 Mine of Eastern 

Associated Coal Corporation. The Wharton No. 4 miners are represented 

by the United Mine Workers of America. After the accident, the miners 

on the midnight shift (12:00-8:00 a.m.) withdrew pursuant to the Union's 

collective bargaining agreement with Eastern Associated. The agreement 

provided that following a fatality, miners would be withdrawn and the 

mine closed for a 24-hour memorial period during which the miners were 

not contractually entitled to compensation. ];/ At 6:19 a.m. on March 

19, after the miners had withdrawn, an MSHA inspector issued a section 

103(k) withdrawal order. Section 103(k) provides in pertinent part: 

In the event of any accident occurring in a coal or 

other mine, an authorized representative of the Secretary, 

•.. may issue such orders as he deems appropriate to insure the safety of any person in the •.• mine •••. 

1/ Article XXII, section (k) of the parties' agreement, the National 

Bituminous Coal Wage Agreement of 1978,. stated: 

"[W)ork shall cease at any mine on any shifts during which a fatal 

accident occurs, and the mine shall remain closed on all succeeding 

shifts until the starting time of the next regularly scheduled work 

of the shift on which the fatality occurred." 

The Union concedes that miners are not contractually entitled to pay 

during such memorial periods. Br. 2. 

l17;j 81-5-7 
The order closed down the entire mine. It was terminated at 3:13 p.m. 

the following day, March 20. There is no evidence that the miners 

offered to, or did, return to work at any time during the memorial 

period. 

The Union subsequently filed a complaint for compensation under 

section 111 of the 1977 Mine Act. Section 111 provides in pertinent 

part: 

If a coal or other mine is closed by an order issued under 

section 103, section 104, or section 107, all miners working during 

the shift when such order was issued who are idled by such order 

shall be entitled ..• to full compensation by the operator at their 

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

more than the balance of such shift. If such order is not terminated prior to the next working shift, all miners on that shift 

who are idled by such order shall be entitled to full compensation 

by the operator at their regular rates of pay for the period they 

are idled, but for,not more than four hours of such shift ••.• 

The Union sought 1.68 hours of compensation for the March 19 midnight 

shift and 4 hours of compensation for the immediately following March 19 

day shift (8:00-4:00) -- that is, for the time the 103(k) order was in 

effect on the midnight shift (6:19 to 8:00 a.m.) and for four hours of 

the following day shift. The administrative law judge granted Eastern 

Associated's motion for summary decision and dismissed the proceeding. 

2 FMSHRC 3422. The judge held that section 111 compensation is awardable only for pay lost when miners are idled as a result of one of the 

designated orders. He found that these miners were idled because they· 

honored their memorial period, during which they were not entitled to 

pay, and that, therefore, the section 103(k) order issued after their 

memorial withdrawal did not idle them and statutorily entitle them to 

compensation. Id. at 3423-3424. We affirm. 

Addressing first the purpose of section 111, we are persuaded, as 

was the judge, by the statute's plain language and its legislative 

history that Congress intended section 111 to provide limited compensation solely for regular pay lost because of issuance of one of the 

designated orders. In relevant part, section 111 states that miners are 

entitled to compensation only if they are "idled by" a section 103(k) 

withdrawal order. This language clearly indicates that there must be a 

nexus between the miners' idlement and the issuance of the section 

103(k) order. Section 111 also makes clear that the statutory compensation applies only against such regular rates of pay as the miners 

would have earned "during the period" of idlement had the order not been 

issued or had the reasons leading to their idlement and to the order not 

occurred. 

1176 
In addition, the compensation limits in section 111 also convince 

us that the section does not .authorize an independent award of pay or 

damages, but rather only a partial recompense for lost earnings. The 

relevant compensation clauses of section 111 state that miners are 

entitled "to full compensation by the operator ••. for the period they 

are idled, but not for more than the balance of each shift" and that if 

the withdrawal order is not terminated prior to the next working shift, 

all idled miners on that shift "shall be entitled to full compensation 

••• but for not more than four hours of such shift." Had Congress 

intended section 111 to create a source of independent pay or damages, 

it would not have so limited the compensation to only a portion of 

pay. Y 

This result is buttressed by the report of the Senate Committee 

which .largely drafted the 1977 Mine Act: 

[T]he primary objective of this Act is to assure the maximum safety 

and health of miners. For this reason, the bill provides .•• that 

miners who are withdrawn from a mine because of the issuance of a 

withdrawal order shall receive certain compensation during periods 

of their withdrawal. This provision, drawn from the Coal Act, 

is not intended to be punitive, but recognizes that miners should 

not lose pay because of the operator's violations, or because of an 

imminent danger which was totally outside their control. It is 

therefore a remedial provision which also furnishes added incentive 

for the operator to comply with the law. [S. Rep. No. 95-181, 95th 

Cong., 1st Sess. 46-47 (1977), reprinted in Legislative History of 

Federal Mine Safety and Health Act of 1977, at 634-635 (1978). 

(Emphasis added.)] 

The Senate report not only focuses on the considerations discussed 

above, but also points out the strong incentive which the section 

furnishes operators to comply with the 1977 Mine Act's safety requirements. Regarding the section's safety purposes, we also find the Third 

Circuitvs observations in Rushton Mining, below, concerning former 

section llO(a) of the 1969 Coal Act (n. 2 below) fully applicable to 

section 111: 

By giving [miners] •.• compensation--albeit very limited--for 

work lost as a result of withdrawal orders, [the section] encourages miners to report dangerous conditions [and for] the same 

reason, ... removes a potential impediment to the inspector's 

actually issuing withdrawal orders. 

Interior Board Mine Operations Appeals also interpreted 

section lll's predecessor provision in the Federal Coal Mine Health and 

Safety Act of 1969, ("the 1969 Coal Act"), 30 U.S.C. §801 et~· 

(1976)(amended 1977), former section llO(a), to authorize only limited 

compensation for earnings lost because of a withdrawal order. Cf. 

UMWA, Loe. Union No. 1993 v. Consolidation Coal Co., 8 IBMA 1, 7-10 

(1977). To similar effect are the Third Circuit's observations in 

Rushton Mining Co. v. Morton, 520 F.2d 716, 720-722 (1975). 
In sum, section 111 compensation is awardable only if there is a 

nexus between a designated withdrawal order and the miners' idlement and 

loss of pay, or between the underlying reasons for the idlement and pay 

loss and the reasons for the order. Mere occurrence alone of withdrawal 

or idlement and issuance of an order does not, by itself, justify 

compensation. This case does not require us to attempt an exhaustive 

definition of all conceivable relationships between withdrawal orders 

and idlement sufficiently substantial to support a section 111 award. 

Where an order precedes and plainly causes a withdrawal leading to loss 

of pay, compensation ordinarily will be awarded; convers~ly, if a 

section 103(k) order were issued while miners were out of the mine on a 

preceding economic strike, or where the order has nothing to do with the 

withdrawal or there was no pre-existing private claim to pay, compensation 

will not be awarded. However, withdrawal situations can arise involving 

more complicated sequences of events or concurrent operation of causative 

factors. In resolving the latter class of cases, we think it wiser to 

develop the nexus rule on a case-by-case basis. In such cases, we will 

examine the relationship between the underlying reasons for the withdrawal and for the order, and will give balanced consideration both to 

the limited and purely compensatory character of section 111 and to the 

overall safety purposes of the 1977 Mine Act and section 111 itself. 

Section 111 is designed to promote safety and protect lives, and where a 

work stoppage due to safety concerns precedes an order and is occasioned 

by the same exigent or emergency conditions leading to the order, 

compensation may be justified to effectuate those safety purposes. Cf. 

Peabody Coal Co. v. MSHA, 1 FMSHRC 1785, 1786-1788, 1790 (1979), and~ 

UMWA, Dist. 31 v. Clinchfield Coal Co., 1 IBMA 33-35, 40-41 (1971) (both 

cases permitting compensation under former section llO(a) of the 1969 

Coal Act where a work stoppage in the face of emergency conditions 

preceded the withdrawal orders). We now apply these general principles 

to the specific question on review. 1J 

The undisputed facts show that the miners left the mine several 

hours prior to the issuance of the section 103(k) withdrawal order. We 

agree with the judge that the cause of the miners' departure was the 24-

hour memorial provision of the 1978 collective bargaining agreement, not 

1f In analyzing former section llO(a) of the 1969 Coal Act, we have 

previously adopted a similar nexus rule and held that miners were idled 

within the meaning of section llO(a) if "but for the withdrawal order," 

they would have worked and been paid. See, for example, Local Union 

5869, Dist. 17, UMWA v. Youngstown Mines Corp., 1 FMSHRC 990, 992 (1979). 

While the "but for" language is a helpful guide to resolving relationship problems in both section llO(a) and 111 cases, it was not meant to, 

nor can it, be a definitive verbal formula. As we have indicated, we 

must also handle such cases by balancing the policy considerations 

discussed above. 

1178 
the section 103(k) order. Thus, even if the section 103(k) withdrawal 

order had not been issued, the miners on the midnight shift (12:00 a.m.-

8:00 a.m.) and the day shift (8:00 a.m.-4:00 p.m.) would not have worked 

or reported. There is no evidence that there were any emergency conditions present that would have independently triggered a work stoppage. 

Furthermore, because the miners observed the non-compensated memorial 

period, we cannot say that they would have been paid by Eastern 

Associated had the withdrawal order not been issued. Under these 

circumstances, the section 103(k) withdrawal order was merely an event 

that occurred while the memorial period was being observed. Since the 

order did not cause the miners' withdrawal and since they placed themselves in a position where they would not have been paid.in the order's 

absence, we do not find a relationship between the order and idlement 

sufficiently substantial to justify an award of section 111 compensation. We again emphasize that there is no evidence that the withdrawal was independently justified by exigent circumstances or amounted 

to a protected work refusal. 

We cannot agree with the Union's contention that denial of section 

111 compensation would "supplant [the 1977 Mine Act] with a contract 

provision." Br. 3. It is true that we do not decide cases in a manner 

which" permits parties' private agreements to overcome mandatory safety 

requirements or miners' protected rights; nor do we unnecessarily thrust 

ourselves into resolution of labor or collective bargaining disputes. 

See Youngstown Mines, supra, 1 FMSHRC at 993-995. However, section 111 

requires us to determine whether there is a pre-existing private entitlement to pay. To make that determination, we are occasionally obliged to 

examine the parties' collective bargaining agreement which fixes pay 

rights. In addition, as here, we must sometimes look to the agreement 

to understand the reasons for a private withdrawal. In the present 

case, there is no need for contract interpretation because the parties 

are agreed that the miners withdrew pursuant to the memorial provision 

and have stipulated that under that provision the miners were not 

entitled to pay from Eastern Associated during the memor1al period. 

Similarly, the Union 9 s reliance (Br. 2-3 & nn. 2 & 3) on certain 

recitations in the contract that neither party waives its 1977 Mine Act 

"rights" would incorrectly transform section 111 into a statutory indemnity 

against absence, loss, or surrender of private pay entitlements. While 

the Union gave up a private claim to pay, it has not waived any statutory 

entitlement. 

For the 

1179 
Distribution 

Sally S. Rock, Esq. 

Eastern Associated Coal Corporation 

1728 Koppers Bldg. 

Pittsburgh, PA 15219 

Joyce A. Hanula, Legal Asst. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge William Fauver 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

Falls Church, Virginia 22041 

1180 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RALPH FOSTER AND SONS 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 12, 1981 

Docket No. WEST 79-397-M 

DECISION 

We directed this case for review to determine whether the administrative law judge erred in vacating a citation after he had found a 

violation of 30 CFR §57.15-4. 1/ The citation issued November 3, 1978, 

listed the mine as Erda CG-27 and stated that two men were drilling at 

the face without safety glasses or eye protection of any kind. The 

judge found the violation had occurred but vacated the citation because 

"MSHA failed to prove the mine involved in the violation." Dec. at 3. 

In his answer to the Secretary's petition for assessment of civil 

penalties, Robert Foster, the owner of Ralph Foster and Sons, averred 

that the Erda CG-27 mine had been operated in 1975, but not since that 

year. The answer also alleged that, in the mine to which the citation 

may have referred, the miners were cleaning their glasses at the time of 

inspection, and did not violate any regulations. At the hearing Foster 

testified that MSHA, at an unspecified time, sent two inspectors to 

clear up the confusion regarding the mine name, and he and the 

inspectors "agreed that Erda CG-27 must be the mine that we called G-3." 

Tro 290 He also stated that he thought the inspector was talking about 

G-3 when referring to the alleged violationo Tro 32-33. 

This record clearly indicates that the question of the proper 

identification of the mine was litigated and the operator knew at 

which mine the violation occurred. A technical defect in the 

citation which did not prejudice the operator in presenting his 

defense, and which, in effect, was cured at the hearing should not 

prevent a finding of liability. Jim Walter Resources and Cowin and 

l/ 30 CFR §57015-4 provides: 

Mandatory. All persons shall wear safety glasses~ goggles, or face 

shields or other suitable protective devices when in or around an 

area of a mine or plant where a hazard exists which could cause 

injury to unprotected eyes. 

1181 81-5-9 
Company, 1 FMSHRC 1827 (1979). See also Old Ben Coal Company, 2 FMSHRC 

1187 (1980). We hold that the judge erred in vacating the citation. 

Accordingly, the citation is reinstated and the case is remanded 

for the assessment of a penalty. 

else, Commissioner 

1182 
Distribution 

Mr. Robert G. Foster 

Ralph Foster & Sons 

2950 A 1/2 Road 

Grand Junction, Colorado 81501 

Ann M. Noble, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1585 Federal Bldg. 

1961 Stout Street 

Denver, Colorado 80294 

Ann Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, ' Virginia 22203 

Administrative Law Judge John J. Morris 

FMSHRC 

333 W. Colfax Ave. 

Denver, Colorado 80204 

1183 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 18, 1981 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

POCAHONTAS CONSTRUCTION COMPANY 

Respondent 

Docket No. WEVA 81-109 -M 

DIRECTION FOR REVIEW AND ORDER 

The administrative law judge's Order of Default issued on April 8, 

1981, is directed for review. 30 U.S.C. § 823 (d)(2)(A)(ii)(IV). The 

issue is whether, under the circumstances presented, the judge's finding 

that Respondent failed to respond to a Show Cause Order and waived 

its right to a hearing is appropriate. 

On December 12, 1980, the Secretary of Labor filed a Petition for 

Assessment of Civil Penalty against Pocahontas Construction Company, 

seeking penalties totaling $122.00 for three alleged violations of the 

Act. No answer was filed. On March 4, 1981, the chief administrative 

law judge issued an order to Pocahontas to show cause, within 15 days, 

why it should not be deemed to have waived its right to a hearing and 

why the proposed penalties should not be entered as a final order of the 

Commission and collection procedures initiated. The record does not 

disclose any proof that service of this Order was actually made on 

Pocahontas. On April 8, 1981, the judge issued an Order of Default 

finding Pocahontas failed to respond to the Show Cause Order issued 

March 4, 1981, holding Pocahontas in default, assessing the proposed 

penalties of $122.00 as the final order of the Commission and ordering 

payment within 30 days. 

On April 20, 1981, Pocahontas filed its Motion to Set Aside Order 

of Default alleging, in part, that it had no knowledge of the March 4, 

1981 Order to Show Cause, that it had been denied due process and that 

it be allowed a hearing. Pocahontas' motion is accepted as a timely 

petition for discretionary review. 

118,i 81-5-14 
Although Respondent failed to file an answer to the Secretary's 

Petition for Assessment of Civil Penalty as provided by Commission 

Rule 2700.28, before the entry of any Order of Default, Commission Rule 

2700.63(a) requires "an order to show cause shall be directed to the 

party." A Show Cause Order does not serve its intended purpose if not 

received by the party required to respond. Here, Respondent alleges it 

did not receive the show cause order of March 4, 1981, and there is no 

proof in the record to the contrary. Under these circumstances a 

serious question of service arises and we are not prepared to summarily 

rule whether service in fact was made. In view of the fa·ct that entry 

of a default judgment is harsh and a dispute exists as to receipt of 

the order to show cause precipitating the judgment, we are of the 

opinion that the matter should be remanded. 

Accordingly, the judge's Order of Default is vacated and the case 

is remanded for further proceedings. 

'-\~(l,\.\ili;\{ Qa;,QutLU.1 "'\\QQlQ 

Marian Pearlman Nease, Commissioner 

A. E. Lawson, Commissioner 

118~) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OLD BEN COAL CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 18, 1981 

DECISION 

Docket No. VINC 74-157 

IBMA 76-90 

Old Ben Coal Corporation initiated this proceeding by filing an 

application for review of an order of withdrawal issued March 6, 1974 9 

under section 104(c)(2) of the Coal Mine Health and Safety Act of 1969, 

30 U.S.C. §801 et seq. (1976)(amended 1977). The order alleged that Old 

Ben had violate~30 C.F.R. §75.400. Following a hearing, the administrative law judge determined that a complete inspection of the mine. 

disclosing no similar violations, intervened between the issuance, on 

November 15, 1972, of the underlying 104(c)(l) notice and order and the 

issuance of this 104(c)(2) withdrawal order. Accordingly, the judge 

vacated the withdrawal order. The appeal of the Mining Enforcement and 

Safety Administration (MESA) was pending before the Interior Department 

Board of Mine Operations Appeals on the effective date of the Mine 

Safety and Health Act of 1977 and, therefore, is before this Commission 

for disposition. 30 u.s.c. §961 (Supp. III 1979). 

In holding that a complete inspection of the mine had occurred the 

judge stated, "The record is clear that the entire underground mine was 

inspected by this series of spot health, safety, health and safety, 

ventilation and [section] 103 inspections and that no section 104(c)(2) 

orders were issued during this series." Dec. 12. We have carefully 

reviewed the evidence and conclude that the judge's finding is supported 

by the record. Accordingly~ the decision is affirmed. l/ 

E. Lawson 

\..\\\OJlQU ~ 00.~HDJJ ·\lc_OlQ 

Marian Pearlman Nease, Commissioner 

ll See CF&I Steel Corp. , t FMSHRC 3459 (1980) • 

Editors Note: A copy of the AdminiRtrative Law Judge's Decision 

is attached. 1186 81-5-12 
Distribution 

Nancy S. Hyde, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Old Ben Coal Corp., VINC 74-157 

Edmund J. Moriarity, Esq., Mark M. Pierce, Esq. 

O]d Ben Coal Company 

125 S. Wacker Drive 

Chicago, Ill. 60606 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th Street, N.W. 

Washington, D.C. 20005 

1187 
United States Department of the Interior 

OFFICE OF HEARINGS AND APPEALS 

HEARINGS DIVISION 

Room W-2426, 2800 Cottage Way 

Sacramento, California 95825 

April 2 9, 1976 

OLD BEN COAL CORPORATION, Application for Review 

Applicant 

v. 

Docket No. VINC 74-157 

Order No. 1 HG; 

March 6, 1974 

MINING ENFORCEMENT AND SAFETY 

ADMINISTRATION, (MESA) , Mine No. 24 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

DECISION 

Appearances: Vilma L. Kohn, Esq., Squire, Sanders and Dempsey, 

Cleveland, Ohio, for Applicant; 

Before~ 

Frederick W. Moncrief, Esq.~ Office of the Solicitor, 

Department of the Interior 9 for Respondent MESA. 

Administrative Law Judge Steiner 

PROCEDURAL BACKGROUND 

This action was brought by the Applicant pursuant to Section 105 of the 

Federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 815 hereinafter referred to as the Act) for review of an Order of Withdrawal issued 

on March 6~ 1974 under§ 104(c)(2) providing, inter alia, as follows: 

Coal float dust ranging from a distinct black in color 

to 1/2 inch deep was deposited on rock dusted surfaces 

in the 6lst north belt haulage entry from the belt head 

roller to the belt tail piece, and in the adjoining 

crosscuts along belt a distance of approximately 2000 

118H 
feet, there was also coal spillage along west side of 

6lst north belt, from 2 to 10 inches deep, and from 

drive to 800 foot survey tag. 

There has been a violation of § 75-400 of Part 75 

Title 30, Code of Federal Regulations, a mandatory 

health or safety standard, but the violation has not 

created an imminent danger. 

The violation is of such nature as could significantly 

and substantially contribute to the cause and effect 

of a mine safety or health hazard, and is caused by 

an unwarrantable failure to comply with such standard. 

The violation is similar to the violation of the mandatory health or safety standard which resulted in the 

issuance of Withdrawal Order No. 1 J.A.R. on November 15, 

1972, and no inspection of the mine has been made since 

such date which disclosed no similar violation. 

MESA inspector Harry Greiner served the subject Order at 5:30 p.m. on 

March 6, 1974 on J. Green, Mine Manager on the third shift at Mine No. 24. 

The Order closed the 16th north belt haulage entry. The conditions were 

abated and the Order terminated at 3:00 p.m. on March 7, 1974. 

The original application for review was filed on March 18, 1974. The 

United Mine Workers of America filed an answer in opposition to the application on March 21, 1974. MESA filed an answer on April 1, 1974. A 

hearing was held in St. Louis, Nissouri. Charles Mauzy and Guy Yattoni 

testified on behalf of the Applicant; Harry Greiner testified on behalf 

of MESA. The United Mine Workers of America made no appearance at the 

hearing. Post hearing briefs were filed by the Applicant and MESA. 

The Applicant filed an Amended Application for Review on September 23, 1974, 

expressly denying that there was a violation; denying that there was unwarrantable failure to comply with any mandatory health and safety standard; 

and alleging affirmatively that there is no valid Order under§ 104(c)(l) 

of the Act on which the subject order can be premised; that subsequent 

inspections of the subject mine have disclosed no violations similar to 

those resulting in the issuance of the underlying§ 104(c)(l) Order of 

withdrawa1; and that the Regulations CQdified at 30 § 75.400 et seq. were 

improperly promulgated and are therefore without legal force and effect. 

FACTUAL BACKGROUND 

Charles K. Mauzy, employed as face foreman by the Applicant, testified 

that he was working on the 6lst north belt haulage entry on March 6, 1974; 

that one of his duties is the examination of pre-shift examiner's reports; 

that no mining activities were being conducted on the first section of 

the belt when the Order was issued; that after he was informed of the 
closure by the inspector, he assigned four men to clean the belt; that one 

of the pre-shift reports dated 3/6 indicated there had been spillage at 

certain spots on the belt which should be cleaned; that other pre-shift 

reports indicated that the belt was clean; that in his 28 years of experience in mining coal, he had never seen one-half inch of float dust extending for a distance of 2,000 feet; that such an accumulation would take 

six months or more; that he had examined the belt "probably" a week 

before the Order was issued and determined that there was insufficient 

float coal dust on the belt to justify it to be "written up on the examiner's books" (Tr. 30); that the belt had been machine dusted; that the 

rock dust on the floor along the belt line was quite thick, two to two 

and one-half inches in some places; that the color was light gray which 

would indicate a film of float dust on top of the rock dust; that one 

belt shoveler was permanently assigned to the 2,000-foot belt on every 

shift; and that he did not believe water sprays had been installed on the 

subject belt on March 6th. 

Guy Yattoni, witness for the Applicant, testified that in the 10 years of 

the existence of Mine No • .24, there had never been a gas ignition, dust 

explosion, gas explosion, or sudden release of gas necessitating evacuation; that, in his 42 years of experience in coal mining, he had never 

seen a blanket of coal dust one-half inch thick extended over a distance 

of 2,000 feet; and that such accumulations occur in isolated pockets and 

at dumping points. 

Inspector Harry Greiner testified that he was making a regular inspection, 

walking all belt haulage entries when he noticed that there were no water 

sprays installed to alleviate float coal dust at the belt head of the 

6lst north belt where it dumps on the west belt and thereupon issued a 

104(b) notice; that, as he proceeded up along the 6lst north belt, "on the 

framework of it, there was quite a bit of float coal dust and along close 

to the ribs where it is kind of a triangle shape, where the ribs meets 

[sic] the bottom, * * * float coal dust did range up to half an inch in 

depth on this framework (of the belt drive) and over close to the ribs 11 ; 

that as he proceeded on up the entry to the tailpiece of the belt, the 

floors were very black and the floors were also black in the crosscuts on 

either side of the belt; that the specific areas where he found accumulations of one-half· inch of float coal dust was where the belt ran through 

an overcast, perhaps eighty or one hundred feet and on the framework of 

the drive itself; that there was float coal dust on the floor along the 

ribs and very little upon the ribs; that he identified the coal dust by 

its powdery-like texture and very distinct black color; that coal spillage 

began at the belt drive and went inby for 800 feet on the west side of the 

belt; that he did observe float coal dust extending 2,000 feet along the 

belt; that, in his opinion, the spillage on the west side of the belt 

could be cleaned up in six or seven hours; that he estimated the depth of 

the float coal dust visually and by continually scratching ·through it 

with a flat blade attached to a bar; that he did not measure the size of 

the float coal dust particles; that the float coal dust could propagate 

119P 
an explosion; that the presence of the float coal dust did not constitute an imminent danger at the time the Order issued, but could become 

dangerous if a source of ignition were present; that very few pre-shift 

examiners even put float coal dust on the book; that a thin film of float 

dust is "Dangerous, anticipating if something else happens. * * * It 

could contribute to a health and safety hazard." (Tr. 70); that he did 

not cite the operator for inadequate rock dust; that the float coal dust 

would contribute to the danger of other factors such as an explosion 

or fire, or the liberation of methane gas. 

RELEVANT STATUTORY SECTIONS AND REGULATIONS 

1. Section 104(c) of the Act, 30 U.S.C. § 814: 

(c)(l) If, upon any inspection of a coal 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 mine safety or 

health hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator 

to comply with such mandatory health or safety standards, he shall include such finding in any notice 

given to the operator under this Act. If, during 

the same inspection or any subsequent inspection of 

such mine within ninety days after the issuance of 

such notice, 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 (d) of this section, 

to be withdrawn from, and to be prohibited from 

entering, such area until authorized representative 

of the Secretary determines that such violation has 

been abated. 

(2) If a withdrawal order with respect to any area 

in a mine has been issued pursuant to paragraph (1) 

of this subsection, 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 

1191 
that resulted in the issuance of the withdrawal order/ 

under paragraph (1) of this subsection until such time 

as an inspection of such mine discloses no similar 

violations. Following an inspection of such mine which 

discloses no similar violation, the provisions of paragraph (1) of this subsection shall again be applicable 

to that mine. 

2. Section 75.400 of volume 30 of the Code of Federal Regulations, 30 CFR 75.400: 

Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

ISSUES 

1. What are the elements of a section 104(c)(2) order of 

withdrawal? 

2. Which party has the burden of proof with respect to each 

element of a 104(c)(2) order of withdrawal? 

3. Whether the 104(c)(2) order may be sustained on the basis 

of the existence of a 104(c)(l) notice and 104(c)(l) order 

without regard to the substantive validity of the underlying 

notice and order. 

4. Whether section 75.400 was promulgated improperly and is 

invalid. 

So Whether a violation of 30 CFR 75.400 occurred. 

6. Whether the violation was caused by an unwarrantable 

failure of the Applicant to comply with the regulations. 

7. Whether the operator's liability for 104(c)(2) orders 

ends when a single inspection or series of inspections 

of the mine discloses no violations similar to those 

upon which the underlying 104(c)(l) notice and order 

were based. 

ELEMENTS OF A 104(c)(2) ORDER OF WITHDRAWAL 

A section 104(c)(2) withdrawal order may be issued if a withdrawal 

order with respect to any area in the mine has been issued pursuant 

to section 104(c)(l) and subsequent inspection reveals: (1) that 
a similar violation of a mandatory health or safety standard occurred, 

and (2) that the violation was caused by the unwarrantable failure 

of the operator to comply with such health and safety standard. The 

United States Court of Appeals for the District of Columbia Circuit 

recently held in International Union, United Mine Workers of America 

v. Thomas S. Kleppe, Secretary of the Interior, et al. (No. 75-1003, 

April 13, 1976), that there is no gravity criterion required to be 

met before a section 814(c)(l) withdrawal order may properly issue. 

BURDEN OF PROOF 

Section 4.587 of Volume 43 of the Code of Federal Regulations, 43 CFR 

4.587, 1/ and section 7(c) of the Administrative Procedure Act (A.P.A.), 

5 u.s.c:- § 556(d), !:../assign the burden of proof in administrative 

hearings under the Act. 

The burden of proof is divided in proceedings reviewing the validity 

of section 104(c)(2) withdrawal orders. MESA must establish the fact 

of violation by a preponderance of the evidence. See Zeigler Coal Co., 

4 IBMA 88, 102 82 I.D. , 1974-1975 OSHD par. 19,478 (1975). The 

burden of persuasion with respect to the other elements of the order 

rests upon the Applicant. Kentland-Elkhorn Coal Corp., 4 IBMA 166, 

82 I.D. 234, OSHD par. (1975). Before Applicant must 

attempt to meet this burden of persuasion, however, MESA must establish 

a prima facie case that the order was validly issued. 

* * * In the instant case, MESA must make out a prima 

facie case that the Order in issue was validly issued 

pursuant to section 104(c)(2) of the Act. Although, 

as we held above, MESA need not establish the validity 

of the underlying section 104(c) Notices and orders, 

it must establish a prima facie case with respect to 

the section 104(c)(2) chain of citations, the fact of 

violation, unwarrantable failure, and the other requirements for issuance of a section 104(c)(2) order. 

Kentland Elkhorn Coal Corp., 4 IBMA at 173. 

1J In proceedings brought under the Act, the applicant, petitioner~ 

or other party initiating the proceedings shall have the burden 

of proving his case by a preponderance of the evidence provided 

that * * * (b) wherever the violation of a mandatory health and 

safety standard is an issue the Mining Enforcement and Safety 

Administration shall have the burden of proving the violation 

by a preponderance of the evidence. 

]:./ Except as otherwise provided by statute, the proponent of a rule 

or order has the burden of proof. * * * 
The Board cited Zeigler in support of this holding. Zeigler involved 

an application for review of a section 104(a) imminent danger withdrawal 

order. The Board interpreted 30 CFR 4.587 and section 7(c) of the 

A.P.A. as follows: 

We believe that although that regulation places the 

ultimate burden of proof on the operator in a review 

proceeding involving an imminent danger withdrawal 

order, such regulation nonetheless, does not relieve 

MESA from the statutory obligation of making out a 

prima facie case in the first place. If, after NESA 

establishes a prima facie case, the operator fails 

to overcome MESA's case by a preponderance of the 

evidence with respect to each element of proof in 

dispute, then, MESA prevails and the operator's request for relief must be denied. 4 IBMA at 101. 

This decision was cited with approval in Old Ben Corp. v. Interior 

Board of Mine Operations Appeals, 523 F.2d 25, 39, 40 (7th Cir. 1975), 

another section 104(a) proceeding: 

* * * in practice, therefore, the burden of proof 

is split, with the Government bearing the burden 

of going forward, and the mine operator bearing 

the ultimate burden of persuasion. We think that 

this accords with the intent of Congress as expressed 

in the following Committee comment on Section 7(c) 

of the Administrative Procedure Act (now codified as 

5 u.s.c. § 556(d)): 

That the proponent of a rule or order has 

the burden of proof means not only that the 

party initiating the proceeding has the 

general burden of coming forward with a 

prima facie case but that other parties, who 

are proponents of some different result, also 

for that purpose have a burden to maintain. 

Sen. Doc. No. 248, 79th Cong., 2d Sess., 208, 

270 (1946). 

Although 43 CFR § 4.587 might have been more artfully 

drafted, we read it to mean simply that the petitioner 

who initiates the proceedings--here Old Ben--has the 

ultimate burden of persuasion. We do not think that 

the regulation was inte~ded to relieve--nor, indeed, 

can it relieve--the proponent of an imminent danger 

order from the burden of putting forth a prima facie 

case in the administrative hearings. 
Pursuant to 43 CFR 4.587 and section 7(c) of the A.P.A., NESA must establish by a preponderance of the evidence that a violation of the mandatory 

health and safety standards occurred. MESA Jl\USt also present a prima 

facie case with respect to the other elements of the 104(c)(2) withdrawal 

order. Once MESA has established this prima facie case, the burden of 

persuasion falls upon the operator to establish by a preponderance of 

the evidence that one or more of the elements essential to a valid 

104{c)(2) withdrawal order was not present when the order was issued. 

VALIDITY OF UNDERLYING 104(c)(l) NOTICE AND ORDER 

MESA introduced into evidence a section 104(c)(l) notice issued September 

27, 1972 (Exhibit C), and a section 104(c)(l) order issued November 15, 

1972 (Exhibit B), to establish a prima facie case that the required underlying (c)(l) order and notice had been issued (Tr. 51-52). The validity 

of the precedent notice and order is ndt in issue in a proceeding for a 

review of an Order of Withdrawal issued pursuant to section 104(c)(2) of 

the Act. Zeigler Coal Company, 5 IBMA 346, 352, I.D. , 

OSHD par. (1975); Kentland-Elkhorn Coal Corp., 4 IBMA 166, 171, 82 

I.D. 234, 1973-1974 OSHD par. 19,633 (1975). 

VALIDITY OF SECTION 75.400 

The appli~ant challenged the validity of 30 CFR 75.400 based on the decision 

of the Sixth Circuit in United States v. Finley Coal, 493 F.2d 285 (6th 

Cir. 1974), aff'd 345 F. Supp. 62, 66 (E.D. Ky. 1972). In Union Carbide Corp., 3 IBMA 314, 81 I.D. 532, OSHD par. (1974), the 

Board held that Finley does not hold that section 75.400 was invalidly 

promulgated and that operators may be cited for violations of that 

regulation, 

FACT OF VIOLATION 

Inspector Greiner's testimony that float coal dust was observed over 

an extended section of the belt, with some concentrations, has not 

been refuted. The existence of a pre-shift report dated March 6th 

indicating spillage along the belt supports that testimony. Spillage, 

requiring at least "spot" cleaning, occurred even though a belt shoveler 

had been assigned regularly on every shift to this section of the belt. 

' Nesa has established by a preponderance of the evidence that float coal 

dust was permitted to accumulate along the belt in violation of 30 CFR 

§ 75.400. 

UNWARRANTABLE FAILURE 

The second requirement of a valid 104(c) order is that the violation be 

caused by the "unwarrantable failure" of the operator to comply with.the 

regulations. Congress pointedly omitted any binding definition of "unwarrantable failure" in its list of statutory definitions embodied in 

it95 
section 2 of the Act, thus leaving the resolution of its meaning to caseby-case adjudication by the Secretary, with only the scantiest guidance 

in the legislative history. Zeigler Coal Com~, 4 IBMA 139, 156. 

* * * [T]he legislative history unmistakably suggests 

that a given 104(c) violation possesses the requisite 

degrees of fault where, on the basis of the evidentiary record, a reasonable man would conclude that 

the operator intentionally or knowingly failed to comply £!:_ demonstrated a reckless disregard for the health 

or safety of the miners. [l/J Eastern Associated Coal 

Corp., 3 IBMA 331, 356. 

The Board has on other occasions dealt with the definition of unwarrantable failure and has defined it as "intentional, knowing or reckless 

deviations from the mandatory standard of care." Zeigler Coal Company, 

4 IBMA 139, 154. 

The violation in this case was the result of the Applicant's unwarrantable 

failure to comply with the regulations. A pre-shift examiner's report 

had shown spillage at certain spots on the belt. Admittedly, there were 

no water sprays installed at the belt head to alleviate the accumulation 

of float coal dust. It is clear that the violation occurred as the result 

of a lack of due diligence on the part of the Applicant. 

INTERVENING CLEAN INSPECTION 

Applicant contends that a series of spot inspections covering the entire 

mine intervened between issuance of the underlying section 104(c)(l) 

Withdrawal Order and issuance of the 104(c)(2) withdrawal order under 

review in this proceeding and that this series of spot inspections 

constitutes an "inspection of such mine which discloses no similar 

violations" thereby removing Applicant from liability for withdrawal 

J/ Legislative history is a relevant authority only where the statute 

is patently ambiguous. In pertinent part, the history bearing 

on the meaning of unwarrantable failure appears at page 1030 of 

House Comm. on Ed. and Labor, Legislative History Federal Coal 

Mine Health and Safety Act, Comm. Print, 9lst Congress, 2d Session 

and reads as follows: * * * The managers note that an unwarrantable 

failure of the operator to comply means the failure of an operator 

to abate a violation he knew or should have known existed, or the 

failure to abate a violation because of a lack of due diligence, or 

because of indifference or lack of reasonable care, on the operator's 

part. (Emphasis added.) 

1188 
orders under section 104(c). Applicant also contends that a single 

clean spot inspection can relieve the operator of liability under 104(c)(2). 

This latter contention is without merit. 

If the legislators had intended to lift liability 

upon a clean spot inspection subsequent to the 

issuance of a (c)(2) closure order, we think that 

they would have used the words "any inspection" 

rather than "an inspection" in the phrase quoted 

above. The language actually employed appears to 

us to direct a thorough examination of the conditions and practices throughout a mine. Indeed 

the intensive and quite possibly prolonged scrutiny seems entirely called for in the case of. an 

operator which may have repeatedly demonstrated 

its indifference to the health or safety of 

miners and where its record suggests that ·other 

equally grave infractions resulting from unwarrantable failures to comply may exist elsewhere 

in the mine. 

Eastern Associated Coal Corp., 3 IBNA 331, 358, 81 I.D. 567, 

OSHD par. (1974), aff'd on reconsideration, In the Matter of 

Eastern Associated Coal Corp., 3 IBNA 383, I.D. 

OSHD par. (1974). 

MESA concedes that a series of spot inspections may constitute a complete 

inspection. This position is in accord with the Board's decision upon 

reconsideration of Eastern: 

Under our interpretation, as set forth in the opinion of September 20, 1974, several completed partial 

or completed spot inspections of a mine may be required to constitute a "complete inspection" of a 

mine in order to lift the withdrawal order liability 

of an operator from the provisions of section 104(c)(2). 

In the Natter of Eastern Associated Coal Corp., 3 IBNA 

383' 386. 

Y.tESA denied, however, that the series of clean spot inspections from 

November 13. 1973, to December 19, 1973, constituted the required cominspection because they were not all health and/or safety inspections. 
During this period, MESA conducted 36 spot inspections of this mine, 

as follows: 

Spot Ventilation 13 inspections 

103(i) 13 inspections 

Spot Safety 4 inspections 

Spot Health & Safety 4 inspections 

Spot Health 2 inspections 

MESA concluded that this "SERIES OF SPOT INSPECTIONS NOVEMBER 13 to 

DECEMBER 19, 1973, COVERED THE ENTIRE MINE" (Emphasis added) (Applicant's 

Exhibit #1). MESA argues, however, that only the four annual inspections 

of the entire mine required by section 103(a) of the Act (30 U.S.C. 

§ 813(a)) qualify as complete inspections and that the initial procedure 

of issuance of section 104(c) notices can be reinstated only if no 104(c) 

orders are issued during one of these four inspections. This stance is 

consistent with the instructions given by MESA to its inspectors with 

respect to the issuance of 104(c)(2) orders. 

For the purposes of "wiping the slate clean" after 

the issuance of a 104(c)(l) or 104(c)(2) order and 

reinstating the initial procedure of issuance of 

104(c)(l) Notices before issuance of an Order under 

104(c), a complete inspection of the entire mine*** 

must be made which reveals no unwarrantable failure 

violation (a "clean" inspection). United States 

Department of the Interior, MESA, Health and Safety 

Manual for Orders, Notices and Report Writing, § l.2A 

(1973). 

A complete inspection is defined by MESA as "the examination of the entire 

mine by authorized personnel to determine compliance with regulations." 

United States Department of the Interior, MESA, Coal Mine Inspection 

Manual for Underground Mines, § 1.5 (1973). The Manual then goes on to 

specify the procedures for conducting and recording "complete" health 

or safety spot inspections and hazardous spot inspections. 

lo Schedule each spot inspection toward the end result of 

having inspected each section within a mine. Report 

such inspections in the present manner of reporting such 

inspections. 

2. After each section within a mine has been inspected through 

a series of such spot inspections, an additional spot inspection shall be made of the other areas of the mine. 
Report such an inspection in the same manner that spot 

inspections are presently being reported; however, in the 

written report of this inspection, * * * record the statement that this inspection completes a series of spot inspections which covered the entire mine. 

3. Depending on circumstances, such a series of spot inspections can be either safety, health, or combination health 

and safety spot inspections. Such a series of hazardous 

spot inspections must be safety type spot inspections. 

4. For reporting purposes when the last of such a series 

of spot inspections is completed, report a "complete" 

health or safety or a "complete11 combination health 

and safety inspection as the case may be. 

The series of spot inspections from November 13 to December 19, 1973, was 

not a "complete inspection" in the sense that it was not one of the four 

required annual inspections and was not composed solely of health and 

safety spots. It was, however, an inspection of the entire mine and 

designated as such by MESA. The record is clear that the entire underground mine was inspected by this series of spot health, safety, health 

and safety, ventilation and 103 inspections and that no section 104(c)(2) 

orders were issued during this series. The record also establishes that 

every inspector carries "all required equipment" underground (VINC 73-113, 

Tr. 116); that an operator is in no way limited as to the kinds or numbers of closure orders or notices of violation he may issue during his 

inspection, regardless of the type of inspection he may be conducting 

(VINC 73-113, Tr. 101); that the designation of an inspection as "spot 

health" or "spot ventilation" merely indicates what the inspector is 

emphasizing (VINC 73-113, Tr. 118); that, in fact, an inspector "is 

required to" pay attention to and cite any violation he sees (VINC 73-113, 

Tr, 101~ 116); and, finally, that the operator could not tell any difference 

between the different kinds of inspections (VINC 73-113, Tr. 250, 291, 297~ 

298), 

Neither the Act as written nor as interpreted by the Board requires that 

"an inspection of the mine which discloses no similar violations" under 

section 104(c)(2) be comprised entirely of health and/or safety spots. 

MESA has introduced no evidence to explain or refute its own designation 

of this series of spots as constituting an inspection of the entire mine. 

The inspections were conducted over a period of time longer than that 

required to complete some of the four annual inspections (Gov't. Exh. B). 

Old Ben Mine No. 24 was subjected to the "intensive and quite possibly 

prolonged scrutiny" called for in Zeigler (3 IBMA 331, 358) during this 

series of spot inspections. No 11 other equally grave infractions resulting 

from unwarrantable failures to comply" (Id.) were found in the mine during 

this period. I therefore find that a clean inspection of the entire 

mine occurred prior to issuance of Order No. 1 HG, wiping the Applicant's 

slate clean with respect to liability for 104(c)(2) orders and that 

Order No. 1 HG was invalidly issued. 
, 

~· 

2. 

3. 

4. 

5. 

6. 

7. 

CONCLUSIONS OF LAW 

These proceedings are governed by the provisions of the 

Federal Coal Mine Health and Safety Act of 1969 (30 u.s.c. 

§ 801 et seq. (1970)) and the regulations promulgated in 

implementation thereof. 

At.all times relevant to this proceeding, Applicant, Old 

Ben Coal Company, was subject to the provisions of the Act. 

Section 30 CFR 75.400 is valid. 

A violation of 30 CFR 75~400 was established. 

The violation was the result of the operator's unwarrantable 

failure to comply with the Act. 

A complete inspection of the mine disclosing no similar 

violations intervened between the issuance of the original 

104(c)(l) notice and order and the issuance of the withdrawal order at issue in this proceeding. 

Based on Conclusion No. 6, Order of Withdrawal 1 HG, 

dated March 6, 1974, was improperly issued and should 

be vacated. 

ORDER 

Based upon the record in these proceedings and the Conclusions of Law, 

it is ORDERED: 

1. That the Application for Review be GRANTED, and 

2. That Order of Withdrawal No. 1 HG, issued March 6 9 1974 9 

to Old Ben·company be VACATED. 

Distribution: 

~ ?i(~. :;,_. ·..._ 

R. M. Steiner 

Administrative Law Judge 

vVilma L. Kohn, Esq., Squires, Sanders, and Dempsey, 1800 Union Commerce 

Building, Cleveland, Ohio 44115 (Cert.) 

Frederick W. Moncrief, Trial Attorney, Office of the Solicitor, Division 

of Mine Health and Safety, U.S. Department of the Interior, 4015 Wilson 

Blvd., Arlington, Virginia 22203 (Cert.) 

Standard Distribution 
Administrative Law Judge Decisions 

l~!Ol 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 1 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BROWN BROTHERS SAND CO., 

Respondent 

Docket No. SE 80-124-M 

A.O. No. 09-00265-05004 

Junction City Mine 

DECISION 

MAY 1981 

Appearances: Ken S. Welsch, Esq., U.S. Department of Labor, Atlanta, 

Georgia, for petitioner; 

Carl Brown, Howard, Georgia, ~ se, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty 

filed by the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), 

charging the respondent with one alleged violation issued pursuant to 

the Act and implementing regulation. Respondent filed an answer in 

the proceedings and a hearing was held on April 13, 1981, in Columbus, 

Georgia, and the parties appeared and participated therein. The parties 

waived the filing of post-hearing arguments, were afforded the opportunity 

to make arguments on the record and those have been considered by me 

in the course of this decision. With the agreement of the parties, I 

rendered a bench decision in this matter, and it is reduced in writing 

herein as required by the Commission Rule 65, 29 CFR 2700.65. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the proposal for assessment of civil penalty 

filed in this proceeding, .and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged violation 

based upon the criteria set forth in section llO(i) of the Act. Additional 

issues raised by the parties are identified and disposed of in the course 

of this decision. 
In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) 

whether the operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the violation, and 

(6) the demonstrated good faith of the operator in attempting to 

achieve rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 U.S.C. § 801 et ~· 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 seq. 

Stipulations 

The parties stipulated that the respondent is engaged in a small sand 

dredging operation, and the company is a fam±ly owned business employing 

approximately seven individuals, and that the respondent is subject to 

the Act and to MSHA's enforcement jurisdiction. In addition, the parties 

agreed that the proposed civil penalty will not adversely affect respondent's 

ability to continue in business, and that the respondent's history of 

prior violations is reflected in exhibit P-1, an MSHA computer print-out 

listing seven prior paid citations. 

Discussion 

The respondent has been charged with a violation of the reporting 

requirements of 30 CFR S0.30(a), and the citation issued by the inspector, 

No. 099168, at 11:00 a.m., on June 26, 1980, states as follows: 

Operator failed to file MSHA form 7000-2 (Quarterly 

Manhour Report) for 1st qt. of 1980 (Jan.-Feb.-Mar.). 

This report should have been filed by 4-15-1980. 

The inspector fixed the abatement time as 2:00 p.m., June 26, 1980, 

and the termination notice reflects that the report was completed and 

mailed on that date at 1:45 p.m. 

Testimony and Evidence Adduced by the Petitioner 

MSHA Inspector Allene T. Jones confirmed that she issued the citation 

in question during the course of an inspection conducted at the respondent's 

operation. She stated that she spoke with Mr. Steven Brown, one of the 

120~ 
respondent's co-owners, and asked him to produce a copy of MSHA Form 

7000-2, since she had information that the form had never been submitted 

or received for the first quarter of 1980. Either Mr. Brown or his 

secretary filled out a new form while she was at the mine, and Inspector 

Jones took it with her and mailed it for the respondent (Tr. 28-32). 

Inspector Jones testified that the law requires the form in 

question to be submitted, and that the information which is filed is 

used for the compilation of violation and accident frequency rates. 

She also identified a copy of the form in question (exhibit P-3), and 

stated that Steven Brown told her that the form was not submitted 

because his father did not want to file any forms and usually "tossed 

them in the trash can" (Tr. 32-35). On cross-examination, Inspector 

Jones explained the various computer codes stated on the fact of the 

form, and explained the rationale for the requirement that the form be 

filed with MSHA (Tr. 35-39). 

MSHA Supervisory Inspector Reino .Matson testified that prior 

to the issuance of the citation in question, namely, in December of 

1978, he discussed the requirements of MSHA Form 7000-2, with both Steven 

and Carl Brown at their office. Respondent had failed at that time to 

file the quarterly report, and during the discussion Mr. Carl Brown 

stated that any correspondence from MSHA usually goes in "file 13", and 

he pointed at the waste paper basket. Mr. Matson stated further that 

he explained the results of the failure to file the form, advised 

Mr. Brown that he would have to issue a citation if he did not file the 

form, and then went to his car and obtained some blank forms for him. 

Mr. Brown's son Steven advised Mr. Matson at that time that he would 

file the form, and it was in fact filed, but Mr. Matson issued no citation 

at that time (Tr. 40-47). Mr. Matson also explained the rationale for 

the form and the information that is required to be submitted, and 

indicated that the information is also used for the scheduling of inspections 

at those mines which show high accident and violation rates (Tr. 57-

59). 

Respondent 1 s Testimony and Evidence 

Respondent was given a full opportunity to present any testimony 

or information it desired in defense of the citation. Both Mr. Carl 

Brown and Mr. Steven Brown were afforded an opportunity to state their 

positions, and with my permission, were afforded an opportunity 

to record the entire hearing with their own tape recording device. 

Mr. Carl Brown candidly admitted that he threw the form away (Tr. 37). 

He also alluded to a recent survey he received from the U.S. Department 

of Interior solicitor certain information concerning his mining 

operation (Tr. 40), and throughout the hearing expressed his displeasure 

with forms in general. 

In defense of the citation in question, both Mr. Carl Brown 

and Mr. Steven Brown stated that they felt coerced by the cautionary 

statement which appears at the top of the form (exhibit P-3), 
which states the criminal sanctions of fines of $10,000 and imprisonment for five years for making false or fraudulent statements on the 

form. And, while the statement distinguishes between civil sanctions 

under the Act, it is altogether possible that they did not distinguish 

the civil sanctions from the criminal sanctions. Further, it seems 

clear to me that respondent still believes that. the information 

required to be submitted has. no rational relationship to the safety of 

its employees (Tr. 42, 53, 54, 59, 62, 64). 

Findings and Conclusions 

Fact of violation 

Petitioner's evidence establishes that the respondent failed to 

timely file the required report form in question and the respondent does 

not dispute this fact. As a matter of fact, Mr. Carl Brown admitted 

that he threw the form away "in the round file" as so much "junk mail". 

Aside from his obvious displeasure of Government regulations, his 

defense to the citation was basically ·an assertion on his that the 

information required by the form has no rational relationship to the 

safety of his work force. One additional defense made during the hearing 

by Mr. Brown's son Steven, was that respondent simply does not take 

kindly to being "coerced or forced" to file any forms by any Governmental authority. Both defenses are rejected. I conclude that the 

petitioner has established a legitimate need for the information in 

order to carry out part of its statutory duty pursuant to section 103 

of the Act •. As for the asserted coercion, while there may have been 

some initial confusion on the part of the respondent with respect to 

the ramifications of failing to file the form, particularly with respect 

to the criminal penalty provisions for making false statements as stated 

on the face of the form, as well as the cautionary statement regarding 

civil penalties which could be levied for failing to file the information, I believe that any ambiguity or misunderstanding was cleared up 

at the time the form was submitted to terminate the citation. Under 

the circumstances, the citation is AFFIRMED. 

Size of Business and Effect of the Penalty on Respondent 1 s Ab to 

Continue in Business 

The parties stipulated that the respondent is a small family owned 

sand dredging mine operator, and I find that the penalty assessed in 

this case will not adversely affect respondent's ability to continue 

in business. 

I conclude and find that the citation issued in this case is nonserious and the petitioner as well as the inspector's who testified in 

this case conceded as much. 

Negligence 

Although I do not condone Mr. Carl Brown's act of fhrowing the 

form away as so much "junk mail", I can understand his initial frustration 

1?0~ 
at being required to execute a form which calls for the submission 

of a variety of information, and which contains notices regarding 

serious civil and criminal penalties for failure to file or for filing 

false information. Further, I have considered the fact that Mr. Brown 

may not have clearly understood the ramifications of his symbolic act 

of defiance, and considering the volume and substance of all of 

the letters or protest from Mr. Brown which are a matter of record, it 

is obvious that Mr. Brown is not too enchanted with the.filing requirements of the cited regulation. Nonetheless, since I have concluded that 

petitioner has shown a legitimate interest in compiling the type of information required by the form as part of its enforcement of mine health and 

safety, and since it is a regulatory requirement based on the provisions 

of the Act, compliance is expected of all mine operators, including this 

respondent. Hopefully, such compliance will be voluntary, and that in 

the future respondent will comply with the law. 

Petitioner's testimony reflects that Mr. Brown was put on notice 

as early as 1978, that the form in question had to be submitted. As a 

matter of fact, the inspector obtained the form for him and helped him 

fill it out. Therefore, I believe that respondent had prior notice of 

the requirements of the regulation in question, and while his subsequent 

failure to file borders on gross negligence, I have considered the fact 

that respondent may have been confused as to what was required and find 

that the citation in question here resulted from respondent's failure to 

exercise a reasonable care amounting to ordinary negligence. 

Good Faith Compliance 

The instant citation was abated with the patient assistance of 

the inspector, and after some prodding by MSHA. Accordingly, I find 

that respondent exhibited no extraordinary efforts at compliance. 

Further, petitioner presented evidence and testimony that while the 

citation in question .was abated by the filing of the form by Mr. Steven 

Brown, two subsequent forms were returned to MSHA by the respondent and 

were not completed (Exhibits P-4, P-5). No additional citations 

were issued for these acts of noncompliance, and Inspector Matson 

explained that it is his policy not to issue citations in these 

circumstances while a contest or litigation is pending. Since section 

104(a) of the Act mandates that citations be issued with reasonable 

promptness, MSHA may wish to consider the wisdom of such a policy. 

My observation in this regard is not intended as criticism of the 

inspector since I believe he acted with remarkable restraint and good 

judgment considering the fact that he was dealing with a somewhat 

recalcitrant operator. Just as Mr. Brown has exhibited his frustration, 

so too have the inspectors who have to deal with him. 

History of Prior Violations 

Respondent's prior history of violations reflects that for the 

period August 14, 1978, through August 13, 1980, respondent has paid 

civil penalties amounting to $324 for seven violations of mandatory 

1207 
safety standards. Based on this prior record, I cannot conclude 

that this history warrants any increase in the penalty assessed in this 

case for the citation which I have affirmed. 

Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that a civil penalty in the amount of ten ($10) dollars is 

reasonable and appropriate for Citation No. 099168, June 26, 1980, 30 

CFR 50.30(a), and respondent IS ORDERED to pay the penalty within 

thirty (30) days of the date of this decision. 

Postcript 

By letter dated April 22, 1981, Mr. Carl Brown stated that he 

wished to appeal my decision affirming the citation and imposing a ten 

dollar civil penalty for the violation. Mr. Brown states that his appeal 

is based on "public sympathy". While the letter was filed after my 

bench decision was rendered, it was filed before my decision was reduced 

to writing as required by the Commission's rules. Under the 

circumstances, any appeal rights which respondent may have begin to 

run as of the date of this written decision, and I am enclosing a copy 

of the pertinent Commission procedural rules for filing such appeals. 

Enclosure 

Distribution: 

Ken W. Welsch, Esq., U.S. Department of Labor, Office of the Solicitor, 

1371 Peachtree St., NE, Rm. 229, Atlanta, GA 30309 (Certified Mail) 

Carl Brown, Brown Brothers Sand Co., Box 32, Howard, GA 31039 (Certified 

Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), on 

behalf of JAMES FRANKLIN COULTER, 

Complainant, 

v. 

COTTER CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~~~~-

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) 

) 

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) 

4 MAY 1981 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. WEST 81-11-DM 

MINE: Cotter Mill 

DECISION AND ORDER 

On April 23, 1981, the parties to this proceeding filed with the 

Commission a Stipulation of Settlement, Consent, and Motion seeking an 

agreed disposition of the case. 

Under the terms of the stipulation, the parties agree that respondent 

shall compensate James Franklin Coulter in the amount of $1,000.00 for loss 

of back wages and other expenses resulting from his discharge; that 

respondent shall expunge the employment record of James Franklin Coulter of 

any adverse references relating to his discharge; and that James Franklin 

Coulter shall accept the above stipulations as full settlement of the claim 

giving rise to this case. 

By joint motion, the parties therefore seek an order providing that 

within 40 days respondent tender the agreed upon sum to complainant; that 

respondent expunge from complainant's employment record any adverse 

references relating to his discharge; that respondent transmit to 

complainant a copy of his employment record reflecting the deletion of any 

adverse references relating to his discharge; and that the confidential 

files of respondent us attorney may be introduced as evidence in any 

subsequent proceeding brought by complainant against respondent relating to 

his discharge. 

Given complainant's consent to the terms of the settlement and finding 

that such settlement will effectuate the purposes of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 .::.E_ seq., it is 

ORDERED: that the settlement agreed to by the parties is hereby 

APPROVED, that the joint motion is hereby GRANTED in full and, that this 

case is hereby DISMISSED WITH PREJUDICE. 
Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Winston L. Duke, Esq. 

Cotter Corporation 

9305 West Alameda Parkway - Suite 201 

Lakewood, Colorado 80226 

l?J(l 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 6 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CRAWFORD COUNTY MINING, INC., 

Respondent 

Docket No. SE 81-10-M 

A.O. No. 09-00264-05005 

Rollo Pit 

DECISION 

MAY 1981 

Appearances: Ken S. Welsch, Attorney, U.S. Department of Labor, 

Atlanta, Georgia, for the petitioner; 

Curt B. Jamison, Atlanta~ Georgia, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant to 

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

30 U.S,C. 820(a), charging the respondent with one alleged violation 

issued pursuant to the Act and the implementing mandatory safety and 

health standards. Respondent filed a timely answer in the proceedings 

and a hearing regarding the proposal was held on April 14, 1981, in 

Macon, Georgia, and the parties appeared and participated therein. 

Although given an opportunity to file post-hearing briefs and/or 

proposed findings and conclusions, the parties declined to do so. 

Issues 

The principal issues presented in this proceeding are (1) 

whether respondent has violated the provisions of the Act and implementing regulation as alleged in the proposal for assessment of civil 

penalty filed in this proceeding, and, if so, (2) the appropriate 

civil penalty that should be assessed against the respondent for the 

alleged violation based upon the criteria set forth in section llO(i) 

of the Act. Additional issues raised by the parties are identified and 

disposed of in the course of this decision. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 
(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, {3) 

whether the operator was negligent, (4) the effect on the operator's 

ability to continue in bu~iness, (5) the gravity of the violation, and 

(6) the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 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 that respondent is subject to the Act, 

that it engages in mining activities, the products of which affect 

inter-state conunerce, that it employs approximately 24 individuals at 

the subject mine, and that the mine operates one-to-two shifts, 5-1/2 

days a week. Respondent's history of prior violations is reflected in 

exhibit P-1, an MSHA computer printout reflecting 18 paid citations 

for a 24-month period November 20, 1978 through November 19, 1980 

(Tr. 6-10). 

Discussion 

Citation .No. 099125, 6/12/80, alleges a violation of 30 CFR 

56.11-27, and the condition or practice described by the inspector 

is as follows (exhibit P-2). 

The allon cyclone was not provided with a 

work platform or handrails. Men had to starid 

on s wooden boards, when work was performed. Persons could fall about SO feet to 

to the ground. 

The inspector established the initial abatement time as July 21, 

1980, but extended this date to September l, 1980, for the following 

reason (exhibit P-2): 

The company is presently deciding whether to 

build a platform on the allon cyclone or to build 

a new installation. Safety belts and lines are 

to be worn at all times on the cyclone until 

this construction is completed. 

The citation was terminated on September 10, 1980, when another 

MSHA inspector found that compliance had been met, and the justification 

1212 
for the termination is described as follows (exhibit P-2): "A 

walkway with handrails were installed around the top of the Allon 

Cyclone area 0 • 

MSHA Inspector Steve Manis confirmed that he conducted an 

inspection of respondent's mine on June 12, 1980, and that he was 

accompanied on his inspection rounds by Larry Jamison, the mine manager. 

Inspector Manis also confirmed that he issued the citation in question 

after determining that the Allon cyclone did not have work platforms 

installed where employees were required to perform work. Mr. Manis 

identified three photographs taken by a fellow inspector at the cyclone 

location in question, and he.identified three areas or "levels" of the 

structure which concerned him (exhibit P-3). He estimated the height 

from the top of each level to the ground level to be 50 feet from the 

extreme top level, 40 feet from the second level, and 30 to 35 feet 

from the third level (Tr. 12-21). 

Inspector Manis testified that the purpose of the cyclone is to 

separate the fine and coarse particle.s being pumped into it by water 

pressure. He determined that employees were required to perform work 

on the cyclone structure after being told that this was the case by an 

employee, and he also observed the presence of a fixed, permanent 

metal ladder attached to the structure, as well as several wooden 

2 x 6 boards which were in place at the three levels. He also observed 

that the rungs of the metal ladder were worn and shiny, which indicated 

to him that the ladder was used rather frequently. All of these 

factors led him to conclude that employees were required to climb onto 

to the cyclone structure to perform work on a regular basis (Tr. 21-22). 

Mr. Manis testified that he was told that employees had ocassion 

to climb the cyclone ladder once or twice a week to go to the top of 

the cyclone. He was also told that if there is a lot of work to perform 

on the cyclone someone may have to stay at the top all day. In such 

situations, he would not accept the use of a safety belt as compliance, 

but would require the use of a work platform (Tr. 62-63). Although 

he observed no one on the ladder or the cyclone on the day of his 

inspection, he was told that the work performed included the changing 

of the position of the cyclone apex as well as the changing of piping 

(Tr. 64). He also stated that he was told that the purpose of the boards 

was to facilitate someone standing on them while performing work (Tr. 64). 

On cross-examination, Inspector Manis confirmed that he issued the 

citation because he believed the entire cyclone location where boards 

were installed for the purpose of facilitating access to the areas 

described were not approved working platforms (Tr. 23). In further 

explanation as to why he issued the citation in question, even though 

he had issued another citation at the same time for failure by the 

respondent to provide safety belts on the cyclone, Mr. Manis stated 

that he could have issued three separate work platform citatiorefor each 

of the levels which were not provided with platforms. He also explafned 
that he did not expect the respondent to construct a platform at every 

area on the cyclone where an employee had to reach for the purpose of 

performing work. As an example, he cited the cyclone pipeline where a 

safety belt would suffice because a platform could not be constructed 

around the pipeline. However, during the construction of the platform 

and while it was being ins'talled, a safety belt would have to be worn 

if an employee had to climb the structure to perform some work (Tr. 

36-37). 

Respondent's Testimony and Evidence 

Respondent presented no testimony from any witnesses with respect 

to the citation. However, respondent's representative Curt Jamison 

was given a full opportunity to cross-examine the inspector, as well as 

make an argument in defense of the citation. With respect to the middle 

level cyclone location, Mr. Jamison asserted that it was used only to 

store a wrench and other tools used by employees while they were standing 

on the lower level boards. The mid-level board was only used to facilitate 

the placing of a wrench, and inspector Manis confirmed that he observed 

such a wrench there and did not dispute Mr. Jamison's assertion that no 

employee stood on the mid-level board to perform any maintenance 

or work. Mr. Jamison conceded that an employee is required to stand on 

the lower level board "every couple of weeks" to unbolt and replace 

a discharge portion of the cyclone with a wrench (Tr. 65-67)'. In 

addition, Mr. Jamison conceded that someone may have ocassion to go to 

the lower level of the cyclone "a couple of times a week" (Tr. 67). 

With regard to the top portion of the cyclone, Mr. Jamison ass.erted 

that the only reason one would have to go there would be to repair 

a leak in the pipe. In his view, this was not a regular chore, that 

there are months at a time when no one goes to the top level, and that it 

is not a daily occurrence (Tr. 67). Mr. Jamison also asserted that 

abatement was achieved by installing a work platform at the top and lower 

levels of the cyclone (Tr. 69). It was his view that any danger which 

may have existed, existed at the top portion of the cyclone and not the 

lower portion (Tr. 69). 

Findings and Conclusions 

Fact of Violation 

In this case, respondent is charged with one violation of the 

provisions of mandatory safety standard 30 CFR 56.11-27, which provides 

as follows: 

Scaffolds and working platforms shall be of 

substantial construction and provided with 

handrails and ~aintained in good condition. 

Floor boards shall be laid properly and the 

scaffolds and working platforms shall not be 

overloaded • Working platforms shall be provided 

with toeguards when necessary. 

12.ltf 
During the course of the hearing, respondent verified the fact 

that Inspector Manis issued a second citation (No. 99126) on June 12, 

1980, at precisely the same time as the one in issue and that it was 

issued for failure by the respondent to have a safety belt or line on 

the cyclone for use of employees who had to climb onto it to perform 

work, as required by section 56.15-51. Respondent produced a copy of 

Mr. Manis' narrative statement executed at the time he issued the safety 

belt citation which reflects that respondent may have been aware of the 

requirements for safety belts through a prior inspection conducted 

at the mine site (Tr. 27-29). 

In its answer filed on February 17, 1981, to the petitioner's 

proposal for assessment of civil penalty, respondent asserts that the 

citation in question is essentially a duplication of the safety belt 

citation issued by Inspector Manis. Respondent paid the penalty 

assessment for that citation, and since the same condition or practice 

is described in both citations, respondent believes it is being unduly 

penalized for the same violation. Respondent also maintains that the 

fact the supposedly dangerous conditions were abated renders any other 

potential citation regarding the same area moot. 

Respondent's argument is that the previous citation issued by 

Mr. Manis for the failure to provide a safety belt on the cyclone was 

abated by the respondent when it provided the required belt or 

line. Since the inspector was concerned about the hazardous location 

at the top level of the cyclone, respondent maintains that by providing 

a safety belt, that somehow eliminated the hazardous condition, and that 

it is patently unfair to cite the respondent a second time for the 

identical hazardous condition. Aside from the fact that the respondent 

does not believe that the cited conditions were hazardous or dangerous, 

respondent considers the condition described by the inspector as one 

single assertedly hazardous condition, and in effect argues that to cite 

the respondent for two separate violations places him in jeopardy twice 

for the identical single condition. 

Respondent asserted that when he discussed the matter with an MSHA 

conference officer, he was told that the reason two citations were issued 

was that the inspector was concerned with the lack of belts at 

the very top of the cyclone, and the lack of substantial work platforms 

at the lower levels of the cyclone. In short, respondent was advised 

that two citations were issued because of the fact that two dangerous 

conditions were presented (Tr. 27-35). 

Respondent maintains that it was led to believe that 

belts were required at the top location of the cyclone, and its position 

is that if a safety belt suffices to protect someone at the top, it 

surely should be acceptable at the two lower levels. Since Inspector Manis 

was concerned about the entire cyclone structure when he issued citation 

099125, the use of safety belts at all three levels which concerned him 

should suffice as compliance. In short, respondent argues that the 
use of safety belts precludes the need for the installation of work 

platforms. The theory of respondent's case is stated as follows at 

pg. 41 of the hearing transcript: 

MR. JAMISON: I do. Mr. Manis has testified, 

however, that this citation 099125 is the whole cyclone 

area, top to bottom -- top, middle, and bottom. 

JUDGE KOUTRAS: That's right. 

MR. JAMISON: So if safety belts suffice fo~ safety 

at the top level, surely they suffice for safety at the 

middle or bottom level. 

JUDGE KOUTRAS: Are you suggesting if you use a safety 

belt, you don't need platforms? 

MR. JAMISON: Yes. 

JUDGE KOUTRAS: What you're saying, in other words, if you 

have a safety belt and there's no requirement that you have 

scaffolds and working platforms, et cetera, et cetera? 

MR. JAMISON: Based on the reasoning behind there being 

two citations to start with. 

MSHA's interpretation of the requirements of section 56.11-27, was 

succintly stated by its counsel at pages 42, and 44-45 of the transcript. 

MSHA's position is that work platforms of the type required by the 

standard were required to be installed at those locations on the cyclone 

where the respondent had placed the 2 x 6 boards. Once the installation 

of work platforms is complete, respondent would be expected to use the 

platforms while performing regular or frequent work or maintenance on 

the cyclone at those locations. However, in those areas on the cyclone 

where sporadic or infrequent work or maintenance is performed, respondent 

may use safety belts or lines in lieu of constructing "platforms. In 

addition, during the time that a work platform is being constructed, 

respondent would be expected to use safety belts or lines until such 

time as the platform construction is completed. 

I take note of the fact that the written description of the condition 

or practice cited by the inspector on the face of the citation, when 

read together with the abatement or termination notice issued by another 

inspector,coRveys the clear impression that the inspector was concerned 

with only one hazardous location on the cyclone structure, namely the 

top level. During the course of the hearing, respondent asserted that 

it was unaware of the fact that inspector Manis was concerned with three 

locations on the cyclone, an,i respondent indicated further that during 

several discussions with MSHA's office of assessments and the solicitor's 

office, he was led to believe that the use of safety belts at the top 

location of the cyclone was sufficient for compliance. 
MSHA's counsel candidly conceded that he had discussed the 

matter with the respondent in advance of the hearing and that he emphasized 

the fact that the frequency and nature of the work required at any cyclone 

location would dictate whether a platform or safety belt was required for 

compliance (Tr. 47). Counsel pointed out that in this case, it was his 

understanding that respondent installed platforms at all three cyclone 

levels and has also provided safety belts for the other areas where 

employees were required to work (Tr. 48). Respondent conceded that he 

installed the platforms because there are times when there are more 

employees present then there are belts (Tr. 51). 

While there may have been some confusion as to1 precisely what was 

required to achieve compliance in this case, I believe that the confusion 

came after the time the inspector issued the citation for the lack of 

platforms and safety belts. My analysis of the testimony of Inspector 

Manis in support of the citation in question leads me to conclude 

that he was concerned with two distinct hazards when he issued the two 

citations. His first concern was that the respondent was using 2 x 6 

wooden planks as a work platform, and since the planks were not securely 

in place and lacked handrails, he obviously believed they did not meet 

the requirements of section 56.11-27, and presented a hazard to anyone 

standing on them while performing work at the cyclone locations which 

he testified about. An additional concern was the fact that he believed 

employees had at some time been at the top of the cyclone without a belt 

because he saw no evidence that belts were being used or located on the 

cyclone at the time of his inspection. Respondent stated that he did 

not discuss the situation with Inspector Manis'at the time the citations 

issued, and that all of the subsequent conversations and discussions 

concerning the two citations came at later times during the informal 

conferences with MSHA officials (Tr. 51). 

Section llO(a) provides that "each occurrence of a violation of a 

mandatory health or safety standard may constitute a separate offense". 

Accordingly, it seems clear to me that any conditi~n or practice found 

by an inspector during the course of an inspection may constitute a 

violation of one or more mandatory standards if the conditions cited 

warrant such a conclusion. On the facts presented in this case it seems 

clear to me that Inspector Manis intended to cite the respondent for a 

violation of section 56.11-27 on the basis of his conclusion that the 

respondent failed to install the required working platforms in question. 

The fact that he also, at the same time, cited the respondent for failing 

to provide safety belts where there was a danger of· falling, does not 

render the platform citation illegal or improper. Respondent had an 

opportunity to challenge the safety belt citation but decided to pay 

the assessment for that citation. Any confusion which may have resulted 

with respect to the application of sections 56.11-27 and 56.15-5, occurred 

after the citations issued and during the conferences held on the 

proposed assessments. 

12:17 
As I observed during the hearing, the conditions cited by 

Inspector Manis on the face of the citation which he issued do not 

include the fact that he was concerned with three distinct unprotected 

areas of the cyclone in question. Further, the abatement and termination 

notice reflects that a walkway with handrails was installed at the top 

area of the cyclone. After consideration of the testimony and evidence 

presented by the parties, I find that the middle level which concerned 

the inspector was hot used as a work platform. Respondent's evidence 

that it was used only to facilitate the storage of a wrench and other 

tools and MSHA has not rebutted this fact. Under the .circumstances, 

if that were.the only location cited or testified to by the inspector 

I would have to vacate the citation. As for the lower and top levels, 

the evidence establishes that work was performed from those locations 

and while the gravity of the citation insofar as the lower level 

is concerned may not have been as great as that which prevailed at 

the very top of the cyclone, the fact is that petitioner's evidence 

establishes that both levels were unprotected. Accordingly, I conclude 

and find that petitioner has established a violation of section 56.11-27, 

and the citation is AFFIRMED. 

Size of Business and Effect of the Penalty on Respondent's Ability to 

Continue in Business. 

I conclude and find that the respondent is a small-to-medium sized 

operator and absent any evidence to the contrary, which has not been 

forthcoming, I cannot conclude that the civil penalty assessed by me 

for the citation in question will adversely affect respondent's ability 

to continue in business. 

History of Prior Violations 

Exhibit P-1, reflects that respondent has paid civil penalty 

assessments for 18 prior citations issued during the period November 20, 

1978, through November 19, 1980, and there are no repeat violations of 

section 56.11-27. Considering the size of respondentrs mining operation, 

I cannot conclude that this history of prior citations warrants any 

increase in the penalty assessed by me for the citation which I have 

affirmed. 

Good Faith Compliance 

The evidence adduced in this case establishes that the respondent 

achieved compliance by constructing protective working platforms on the 

cyclone in question. Accordingly, I find that respondent exercised 

normal good faith compliance in abating the conditions cited. 

Negligence 

Petitioner established that the respondent has another similar 

cyclone in operation on its property and introduced a photograph. 

of that cyclone, which clearly shows that a permanent work platform is 
in place around the entire 

asserted that this cyclone 

since it is locate~ in the 

bins, it presents a hazard 

down to a concrete walkway. 

installed (Tr. 54). 

structure (exhibit P-4). Respondent 

was constructed some 20 years ago, and that 

middle and above four large coned-shaped 

of someone falling between the bins straight 

This is the reason why a platform was 

Respondent recognized the hazardous location of the "old" cyclone 

and that is the reason it constructed a permanent type working platform 

at that location. Its failure to provide similar protection for the 

cyclone cited in this case was based on its conclusion that it was not 

hazardous or dangerous. While this conclusion on the respondent's part 

may be true for the lowest or third level of the cyclone, I believe that 

the respondent should have been aware of the fact that the very top 

location of the cyclone which was accessible by the fixed ladder presented 

a hazard when employees were required to go there to perform maintenance 

or other work. Since the evidence establishes that this was not an 

infrequent occurrence I concltlde that respondent failed to exercise 

reasonable care to prevent the condition cited by the inspector at that 

location. Accordingly, I find that the citation resulted from ordinary 

negligence by the respondent. 

Gravity 

Inspector Manis believed that anyone falling from any of the cyclone 

locations depicted in thepha::ographic exhibits would likely strike 

the hard ground below and sustain serious injuries. Respondent disputed 

this fact and asserted that while one falling from the very top of the 

structure fifty feet below to hard ground would likely suffer fatal 

injuries, if he fell from the lower third level, he would likely suffer 

no injuries since he would fall into soft sand from a very shoit distance 

(Tr. 25). 

Mr. Manis also testified that at the time he issued the citation 

in question, he observed no one on the structure, tha~ there were no 

safety belts on the cyclone, and someone told him that none were on 

the premises, but he did not look for any (Tr. 58). Further, while 

he indicated that there were sand piles present on three sides of the 

unprotected cyclone, one side did not contain a sand pile below, and 

if an employee fell from the very top of the cyclone to the ground 

level below, some fifty feet, he would likely suffer serious injuries. 

I conclude that the failure to install the work platform called for 

by the cited safety standard in question presented a serious situation 

which could have resulted in injuries in the event some one fell from 

the top of the structure. Of course, the severity of any inJuries 

would depend on the particular facts and circumstances presented at 

any given time. I believe that an unprotected area of the cyclone 

where men were required to work presented a serious condition. Accordingly, 

I find that the citation cited was serious. · 

1219 
Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that a civil penalty in the amount of $125 is reasonable and 

appropriate for Citation No. 099125, June 12, 1980, 30 CFR 56.11-27, 

and respondent is ORDERED to pay the penalty assessed within thirty (30) 

days of the date of this decision. 

· 4<'4/- ~-t;~ ;<:'. rfo~tras 1! ,!;;:~ Administrative Law Judge 

Distribution: 

Curt B. Jamison, Crawford County Mining, Inc., 3166 Maple Drive, 

NE, Rm. 226, Atlanta, GA 30305 (Certified Mail) 

Ken Welsch, Esq., U.S. Department of Labor, Office of the Solicitor, 

1371 Peachtree St., NE, Rm. 330, Atlanta, GA 30367 (Certified 

Mail) 

t ')'."JP .... '·, 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 1te1 

ITMANN COAL CO:MPANY, Contest of Order 

Applicant 

v. Docket No. WEVA 80-226-R 

SECRETARY OF LABOR, Itmann No. 3 Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Appearances: 

Before: 

Respondent =· 

DECISION 

Karl T. Skrypak, Esq., Counsel for Itmann Coal Company, 

Pittsburgh, Pennsylvania, for Applicant; 

Michael Bolden, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for Respondent. 

Judge William Fauver 

This proceeding was brought by Itmann Coal Company under section 105(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~·, 

to review an order of withdrawal issued by a federal mine inspector,under section 104(d)(2) of the Act. The case was heard at Charleston, West Virginia. 

Both parties were represented by counsel, who have submitted their proposed 

findings, conclusions, and briefs following receipt of the transcript. 

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

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

FINDINGS OF FACT 

1. At all pertinent times, Applicant, Itmann Coal Company, operated a 

coal mine known a~ the Itmann No. 3 Mine in Wyoming County, West Virginia, 

which produced coal for sales in or substantially affecting interstate 

commerce. 

2. The Cabin Creek belt conveyor at Mine No. 3 is about 1,300 feet 

long. The mine liberates about 1,600,000 cubic feet of methane in a 24-hour 

period and there are extra exhaust fans at the tailpiece to draw methane out 

of the mine. 

1221 
3. On January 21, 1980, federal inspector James F. Bowman checked Applicant's mine report books and noticed an entry on January 10 that the Cabin 

Creek crossbelt conveyor needed rock dusting. No subsequent entry showed that 

action had been taken to rock dust this area. A notation on the evening 

shift on January 11 read: "The CC5 cross needs cleaning between the airlocks 

and rock dusting." There was a similar entry for the evening shift on 

January 17. On the day shifts of January 11 and January 17, 1980, Charles 

Martin apparently rock dusted the Cabin Creek 5 panel crossbelt. Applicant's 

Exhibit No. 5 is a statement by Charles Martin that he rock dusted the Cabin 

Creek 5 crossbelt on January 11. The corrective action for January 17 was 

not reported in the books until after the January 21 inspection. 

4. Normally, a certified belt examiner inspects the mine to see that 

surfaces are rock dusted and, if rock dusting is needed, he makes a notation 

in the report books. Regular employees are not authorized to change the 

report books so that, even if the condition has been corrected, the belt 

examiner's notation in the report books remains unchanged until he makes 

another inspection of the area and is satisfied that surfaces are rock dusted. 

5. Inspector Bowman told Mr. Donnie Coleman, Applicant's safety supervisor, about the entries in the books and said that he wanted to see why no 

action had been taken. The inspector prepared to go underground with his 

rock-dust kit, which contained a 20-mesh screen to screen out oversized 

particles, a small collecting pan, and a brush. 

6. Inspector Bowman and Mr. Coleman inspected the Cabin Creek belt 

beginning at the 6 panel 1 header 5 panel cross tailpiece. There were two 

electricians working on a transformer when they arrived and the belts were 

in operation. 

7. They proceeded from the tailpiece along the left side of the belt for 

about 100 feet and came to a series of cribs just beyond two rectifier starting 

boxes. The inspector observed float coal dust in this area, and took a "skim" 

sample from the cribs. A skim sample is a sampling technique generally used 

to test float coal dust. This method is not described in the MSHA inspectors' 

Underground Manual, but it is taught to inspectors in training courses. The 

sample is taken by brushing into the collection tray an area of float coal 

dust about 6 inches wide and one-sixteenth to one-eighth inch deep. The 

inspector placed the samples in a plastic bag and sealed the bag. He did 

not first pass the sample through a screen. 

8. They proceeded along the belt to an entry about 20 feet from an airlock. The inspector took a skim sample of float coal dust from cinder blocks 

that had been removed from a stopping and stacked in the entry. The inspector 

also took a skim sample from behind a crib about 10 feet from the cinder 

blocks. He placed both samples in a bag and marked the bag. 

9. Inspector Bowman and Mr. Coleman continued along the belt and, 

between the last area he sampled (above) and an airlock, the inspector 

observed that the floor was extremely black and that the ribs and roof were 

1222 
covered with float coal dust. He also observed that the area beneath the 

accumulations had been rock dusted. The heaviest concentrations of float 

coal dust were near an airlock and a series of cribs; in this area he took a 

"half-floor" sample by scraping a band about 1 inch deep and 6 inches wide 

over half the floor width. He. could not take a sample on the other side of 

the belt because the belt was in operation and there was no crossover and 

no cut-off switch to stop the belt. The cut-off switches are at either end 

of the belt. However, he could see accumulations on the other side. He 

screened the half-floor sample, placed it in a bag and tagged it for 

analysis. 

10. About 600 feet from the above sample, the inspector took his last 

sample, which was another half-floor sample, inby the belt head near a 

13,200-volt cable and underneath and on the right side of the belt, where 

he found accumulations of loose coal, coal dust, and float coal dust. The 

accumulations ranged in depth from a quarter of an inch to about 18 inches. 

11. After the inspector took this sample, he told Mr. Coleman that he 

was going to issue a section 104(d)(2) order of withdrawal. He later issued 

the order that day. The order of withdrawal reads in part: 

Where rock dust was applied in Cabin Creek 5 cross belt 

conveyor entry it was not maintained to the required 65 percentum. Samples were taken. The belt examiner's report book 

stated the conveyor entry needed rock dusted from the airlock 

to the tailpiece, a distance of approximately 600 feet and 

this violation had been repeatedly reported since 01-10-80, 

and no corrections were shown. The mine foreman and superintendent were countersigning the reports • 

. 12. Inspector Bowman believed that the operator knew or should have 

known of the cited conditions and of the danger of accumulations of combustible material. Sources of ignition in the Itmann No. 3 Mine included belt 

idlers 9 high-voltage cables, belt-control cables, high-voltage transformers, 

open-type belt-control boxes, and a high spot at the tail of the Cabin Creek 

crossbelt that presented a methane problem. 

13. It was the inspector's opinion that the accumulations occurred over 

at least 3 days with maximum production from all sections feeding that belt. 

14. Frank Beard, vice president of Itmann Coal Company, was at the Noo 3 

Mine when Mr" Bailey told him that an order had been issued underground. He 

told Mro Bailey not to let anyone perform any cleaning until he (Mr. Bailey) 

had a chance to inspect the cited area. Mr. Beard traveled the belt from the 

head to the tailpiece, observing the ribs, roof, floor and underneath the 

belt. When he reached the tailpiece, he turned around and walked back to the 

belt head, observing those areas again. In his opinion, the belt looked 

proper with the exception of an area at the airlocks and some gray areas at 

the tailpiece. 
15. When Mr. Beard returned to the surface, he told his supervisor, 

Mr. Warren Sharpenberg, that the area was in g~od shape and the order should 

not have been issued. They decided to take their own representative band 

samples at 100-foot intervals from the belt head to the tailpiece. They 

believed these samples would be more accurate and more representative than 

the few taken by the inspector. Normally, Applicant took rock-dust samples 

every 200 feet. 

16. On January 21, Mike Canada, a safety inspector for Itmann Coal 

Company, took 17 band samples along the Cabin Creek 5 panel crossbelt. He 

began taking samples about 21 feet inby the crossbelt drive and the last 

sample was taken 30 feet outby the tailpiece. The belt was not running, so 

that he could take samples on both sides of the belt. 

17. There were no MSHA personnel or other company personnel present 

while he took the samples. He was aware of the areas examined by Inspector 

Bowman and he attempted to get samples from those areas. None of his samples 

cut directly over the inspector's samp;I.es; however, some were fairly cl'ose. 

One sample taken at an airlock was within 1 foot of the inspector's sample. 

18. He followed MSHA's procedure for band sampling, making a trough 

across the floor that was about 1 inch deep and 6 inches wide. 

19. The areas sampled by Mr. Canada appeared dry and well rock dusted, 

with the following exceptions: Generally, on the offside of the belt, which 

is not normally walked, it was dark gray at spot locations (a grayish color 

indicates that float coal dust is beginning to deposit on rock-dusted 

surfaces); the No. 6 sample appeared slightly damp and Mr. Canada observed 

a 12-foot spillage on the left side of the belt; the No. 9 sample appeared 

damp and black_ and he observed a film of float coal dust on the surface; the 

No. 10 sample appeared damp and float coal dust was measured at a one-halfinch to a one-fourth-inch over heavily rock-dusted surfaces; the Nos. 11 

through 17 samples appeared dry with visible float coal dust. However, the 

laboratory analyses showed that all of Mr. Canada's samples exceeded 65 per 

centum in incombustible content~ which is the minimum set by the safety 

standardo 

20. Government Exhibit No. 3 is a record of the laboratory results of 

the samples taken previously by Inspector Bowman on January 21, and shows 

the following: 

Sample Noo 

1 

Area 

100 feet outby 

tailpiece from 

crib 

skim 

l ')') A Iv f,.._., (, 

Percent 

Incombustible 

Content 

58.3 
2 

3 

4 

40 feet inby 

airlock from 

cinder.blocks 

10 feet inby 

airlock 

70 feet inby 

belt drive, 

offside 

skim 50.0 

half-floor 39.0 

half-floor 19.0 

21. The MSHA Underground Manual provides in relevant part: 

Collection of dust samples to determine the incombustible 

content. The usual samples of mixed dust should be collected 

by the band or perimeter method of the entry or room, including 

a 1-inch depth of the material on the floor. Dust from the 

roof, ribs and floor should be combined into one "band" sample. 

If the amount collected is more than required, the sample 

should be mixed thoroughly, coned and quartered to cut the 

bulk to the desired amount. Occasionally, it may be necessary 

to take more than one strip, but in such case, the total width 

of the strip must be the same for the roof, each rib and floor. 

The plastic bag shall be filled for at leat half the length of 

of the bag. Separate samples of dust from either the roof, 

ribs or floor may be collected when deemed necessary. Where 

the coalbeds are so thick that it is impractical and unsafe to 

collect full perimeter samples, the inspector shall collect a 

floor sample and a sample from the ribs to the maximum height 

at which this can be done safely and practicably. The rib 

sample and the floor sample may be either combined or prepared 

separately. Wben rib samples are collected and reported 

separately, the incombustible content of the rib sample may be 

assumed to represent the incombustible content of the entire 

rib and roof surface at the sampling location. 

DISCUSSION WITH FURTHER FINDINGS 

Based on the order of withdrawal issued on January 21, 1980, the 

Secretary has charged Applicant with a violation of 30 C.F.R. § 75.403, 

which provides: 

Where rock dust is required to be appiled, it shall be 

distributed upon the top, floor, and sides of all underground 

areas of a coal mine and maintained in such quantities that 

the incombustible content of the combined coal dust, rock 

dust, and other dust shall be not less than 65 per centum, 

but the incombustible content in the return aircourses shall 

be no less than 80 per centum. Where methane is present in 

any ventilating ·current, the per centum of incombustible 
content of such combined dusts shall be increased 1.0 and 

0.4 per centmn for each 0.1 per centmn of methane where 

65 and 80 per centum, respectively, of incombustibles are 

required. 

Applicant contends that the incombustible content of the Secretary's 

samples is inaccurate because the inspector did not follow the proper procedures for taking dust samples. Applicant argues that the two skim samples 

and the two half-floor samples represented less than· 1 cubic foot in an 

entry of about 104,000 cubic feet and that Inspector Bowman's sampling 

techniques were arbitrary and capricious and not in accordance with the MSHA 

Underground Manual for inspectors. Applicant contends that its 17 band 

samples followed proper procedures and should be accepted over the 

government's samples. 

The Secretary contends that Inspector Bowman's sampling techniques, 

although not stated expressly in the MSHA Underground Manual, "are used by 

the inspectors and are recognized in scientific literature." The Secretary 

argues that a charge of a violation of the cited standard depends initially 

on the inspector's visual observation, that the inspector observed many 

accumulations along the 1,300-foot belt, and that his observations and conclusions were later supported by laboratory analysis. 

The usual method of collecting dust samples to measure incombustible 

content is the perimeter (or band-sample) method. The MSHA Underground 

Manual, which was published on March 9, 1978, considers the band sample the 

most accurate method of measuring incombustible content. However, the procedures outlined in the Manual are flexible and the half-floor and skim 

sample methods, although not contained in the manual, are recognized and 

approved procedures used by federal mine inspectors and are part of\the 

inspectors' training course. In this case, there were reasonable grounds 

for the inspector's procedures: (1) a running conveyor and obstructions 

warranted the half-floor samples and (2) accmnulations on the cribs and 

cinder blocks warranted the skim samples, since cribs and cinder blocks are 

not the floor~ ribs or roof. 

I find that the samples taken by Inspector Bowman are reliable, in 

accordance with accepted sampling procedures, and establish a violation of 

the rock-dusting standard. The accumulations observed by him, and confirmed 

by laboratory analysis, were visually evident and, by the exercise of reasonable care~ should have been detected and corrected by the operator before 

the inspection. A finding of an unwarrantable failure to comply is therefore 

supported by the evidence. Also, the evidence of ignition sources and potential methane liberation in the areas of accumulation justify a finding that 

the violation could significantly and substantially contribute to the cause 

and effect of a mine safety hazard. 

CONCLUSIONS OF LAW 

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

subject matter of the above proceeding. 

122~ 
2. The Secretary proved by a preponderance of the evidence that dust 

samples taken in the Cabin Creek 5 crossbelt conveyor entry in Applicant's 

No. 3 Mine were in excess of 65 per centum and that Applicant therefore violated 30 C.F.R. § 75.403, as charged in Order of Withdrawal No. 657867. 

Several entries in the company's report books showed the need for cleaning 

and rock-dusting and, as of the January 21 inspection the books did not show 

that the cited areas had been rock-dusted. 

3. The Secretary proved by a preponderance of the evidence that the 

violation was the result of an unwarrantable failure by the operator to 

comply with the rock-dusting standard. 

4. The Secretary proved by a preponderance of the evidence that the 

violation was of such a nature as could significantly and substantially 

contribute to the cause and effect of a mine safety hazard. 

All proposed findings and conclusions inconsistent with the above are 

hereby rejected. 

ORDER 

WHEREFORE IT IS ORDERED that the order of withdrawal issued on January 21, 

1980, is AFFilUfED and the contest of order for review thereof is DISMISSED. 

Gd~~ WILLIAM FAUVER, JUDGE 

Distribution: 

Karl T. Skrypak, Esq., Counsel for Itmann Coal Company, Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

Michael Bolden, Esq., Trial Attorney, Office of the Solicitor, 

UaSo Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

122? 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

6 MAY 1981 

UNITED STATES STEEL CORPORATION, 

Contestant 

Notices of Contest 

v. Docket No. WEVA 81-263-R 

SECRETARY OF LABOR, Citation No. 898068 

MINE SAFETY AND HEALTH February 2, 1981 

ADMINISTRATION (MSHA), 

Appearances: 

Before: 

Respondent Gary No. 9 Mine 

Docket No. WEVA 81-290-R 

Citation No. 918432 

March 2, 19 81 

No. 20B Mine 

DECISION 

Louise Q. Symons, Esq., United States Steel Corporation, 

Pittsburgh, Pennsylvania, for Contestant; 

Robert Cohen, Esq., Qffice of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for Respondent. 

Judge Stewart 

The above-captioned contest proceedings were brought pursuant to section 105(d) of the Act 1/ by United States Steel Corporation (hereinafter, 

J:./ Section 105(d) of the Act provides: 

"If, within 30 days of receipt thereof, an operator of a coal or other 

mine notifies the Secretary that he intends to contest the issuance or 

modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or 

(b) of this section, or the reasonableness of the length of abatement time 

fixed in a citation or modification thereof issued under section 104, or 

any miner or representative of miners notifies the Secretary of an intention 

to contest the issuance, modification, or termination of any order issued 

under section 104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the 
U.S. Steel). An expedited hearing was held in Falls Church, Virginia, on 

March 19, 1981. The parties were in agreement as to the facts herein and 

limited their presentations to stipulations of fact J:./ and oral argument. 

Citation No. 898068 was issued on-February 2, 1981, pursuant to 

section 104(a) of the Act, 2,/ citing a violation of 30 C.F.R. 

footnote 1 (continued) 

Secretary shall immediately advise the Commission of such notification, and 

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 on findings of fact, affirming, modifying, ot vacating the Secretary's citation, 

order, or proposed penalty, or directing other appropriate relief. Such 

order shall become final 30 days after its issuance. The rules of procedure 

prescribed by the Commission shall provide affected miners or representatives 

of affected miners an opportunity to participate as parties to hearings under 

this section. The Commission shall take whatever action is necessary to 

expedite proceedings for for h~aring appeals of orders issued under section 

104." 

2/ Before presenting oral arguments, the parties entered into the following 

stipulations on the record: 

"We agree that the judge has jurisdiction over this case. We agree that 

United States Steel Corporation is categorized as a large operator under the 

Mine Safety and Health Administration Act. We agree that a citation was 

issued to the Gary No. 9 Mine on February 2, 1981 concerning a violation of 

75.303, and we agree that that Citation No. 898068 was vacated by tQe Mine 

Safety and Health Administration on March 2, 1981. 

"Another citation was issued to Gary No. 20 B Mine on March 2, 1981, and 

while the Mine has not received a copy of the notice of, vacating that citation, counsel has been given a copy of a notice vacating Citation No. 918432, 

dated March 9, 1981, today. 

niAt both mines during this period and continuing to the present, an 

examination of the belts was made during each shift by certified people as 

required by 30 C.F.R. § 75.303. 11 

3/ Section 104(a) of the Act provides: 

- "If, upon inspection or investigation, the Secretary or his authorized 

representative believes that an operator of a coal or other mine subject to 

this Act has violated this Act, or any mandatory health or safety standard, 

rule, order, or regulation promulgated pursuant to this Act, he shall, with 

reasonable promptness, issue a citation to the operator. Each citation shall 

be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, 

regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The 

requirement for the issuance of a citation with reasonable promptness shall 

not be a jurisdictional prerequisite to the enforcement of any provision of 

this Act. 11 
§ 75.303. !:±./ The condition or practice which caused it to be issued was as 

follows: 

4/ 30 C.F.R. § 75.303, a mandatory standard reproducing section 303(d) of 

the Act, reads as follows: 

"(a) Within 3 hours immediately preceding the beginning of any shift, 

and before any miner in such shift enters the active workings of a coal mine, 

certified persons designated by the operator of the mine shall examine such 

workings and any other underground area of the mine designated by the 

Secretary or his authorized representative. Each such examiner shall examine 

every working section in such workings and shall make tests in each such working section for accumulations of methane with means approved by the Secretary 

for detecting methane, and shall make tests for oxygen deficiency with a permissible flame safety lamp or other means approved by the Secretary; examine 

seals and doors to determine whether they are functioning properly; examine 

and test the roof, face, and rib conditions in such working section; examine 

active roadways, travelways, and belt conveyors on which men are carried, 

approaches to abandoned areas, and accessible falls in such section for 

hazards; test by means of an anemometer or other device approved by the 

Secretary to determine whether the air in each split is traveling in its 

proper course and in normal volume and velocity; and examine for such other 

hazards and violations of the mandatory health or safety standards, as an 

authorized representative of the Secretary may from time to time require. 

Belt conveyors on which coal is carried shall be examined after each coalproducing shift has-begun. Such mine examiner shall place his initials and 

the date and time at all places he examines. If such mine examiner finds a 

condition which constitutes a violation of a mandatory health or safety standard or any condition which is hazardous ' to persons who may enter or be in 

such area, he shall indicate such hazardous place by posting a "danger" sign 

conspicuously at all points which persons entering such hazardous place would 

be required to pass, and shall notify the operator of the mine. No person, 

other than an authorized representative of the Secretary or a State mine 

inspector or persons authorized by the operator to enter such place for the 

purpose of eliminating the hazardous condition therein, shall enter such place 

while such sign is so posted. Upon completing his examination, such mine 

examiner shall report the results of his examination to a person designated 

by the operator to receive such reports at a designated station on the surface 

of the mine, before other persons enter the underground areas of such mine to 

work in such shift. Each such mine examiner shall also record the results of 

his examination with ink or indelible pencil in a book approved by the Secretary kept for such purpose in an area on the surface of the mine chosen by 

the operator to minimize the danger of destruction by fire or other hazard, 

and the record shall be open for inspection by interested persons. 

"(b) No person (other than certified persons designated under this 

§ 75.303) shall enter any underground area, except during any shift, unless 

an examination of such area as prescribed in this § 75.303 has been made 

within 8 hours immediately preceding his entrance into such area." (Emphasis 

added.) 

.., •) 'J(l . .:... ' , tJ 
An examination of 9 Right (I.D. 039) section belt conveyor on which coal was being carried was not made, without 

delay, after the coal-producing shift had begun. The belt 

conveyor was started at 10:05 a.m. and the section foreman 

said that he planned to start the examination sometime after 

1:00 p.m. 

Citation No. 898068 was vacated on March 4, 1981. The justification 

given for this action was as follows: "Citation No. 898068 is hereby vacated 

due to advice from the Solicitor's Office that the citation was technically 

issued in erro'r." 

Citation No. 918432 was issued on March 2, 1981, pursuant to section 

104(a) of the Act, also citing a violation of 30 C.F.R. § 75.303. The condition or practice cited therein was as follows: 

According to the records, February 6, 1981 was the last 

date of record that examinations were conducted without delay, 

after each coal producing shift had begun, of belt conveyors 

that coal is carried upon and the mine contains 4 (four) productive sections. Coal is produced on all 3 shifts at this 

mine. 

Citation No. 918432 was vacated on March 9, 1981. The justification was 

given as follows: "According to instructions received from the Solicitor's 

Office and the Administrative Law Judge, this citation as refers to 30 C.F.R 

§.75.303 is hereby vacated."~./ 

The particular provision of section 75.303 directly at issue herein is 

the third sentence of the standard, reading: "Belt conveyors on which coal 

is carried shall be examined after each coal-producing shift has begun." It 

was the position of U.S. Steel that section 75.303 does not specify the 

particular time at which such inspection was to be carried out and that an 

examination at anytime during a shift would be sufficient for compliance. In 

a motion to dismiss, filed on March 17, 1981, MSHA agreed with the position 

of U.S. Steel as to the proper interpretation of the cited standard. !!_/ 

'}_/ In Secretary of Labor v. Consolidation Coal Company, 2 FMSHRC 1809 (1980), 

the judge held that 30 C.F.R. § 75.303 did not require an examination of belt 

conveyors on which coal is carried immediately upon the start of a production 

shift. 

6/ MSHA asserted the following in its motion: 

"When the issuance of the citation came to the attention of National 

MSHA officials, they consulted with appropriate field offices and MSHA district managers 'and supervisory personnel in the affected areas were informed 

that MSHA's current policy does not require that onshift examinations begin 

immediately after the start of a shift, but only requires that such examinations be completed during each shift. 

123:J 
In its oral presentation, MSHA reiterated that it agreed with the position of U.S. Steel as previously expressed in MSHA's motion to dismiss. 

Counsel for MSHA stated: 

In the motion, * * * we admitted that the violations 

were issued at the various mines, and we admitted that the 

violations were issued in error because they were issued 

because it appeared to the Federal mine inspectors when they 

came into the mine and looked at the examination books that 

the onshift examinations had not been made immediately after 

the start of the shift and, therefore, they issued citations 

because they believed in good faith that the MSHA policy was 

that the onshif t examinations were required to be made immediately upon the start of the shift. * * * 

There is one decision on this matter. It was issued by 

Judge Merlin in Secretary of Labor v. Consolidation Coal 

Company, PENN 79-105. It was issued July, 1980, and stated 

that this standard only requires belt conveyors on which coal 

is being carried to be examined after each coal-producing 

shift has begun. There is no requirement that the examination take place immediately. 

The actual words of the Judge in Consolidation Coal Company, 2 FMSHRC 

1809 (1980) (hereinafter, Consolidation Coal Company), were: 

I conclude that the mandatory standard requires only 

that belt conveyors on which coal is carried be examined 

after each coal-producing shift has begun. There is no 

requirement of immediate examination of belt conveyors after 

the start of a production shift. Indeed there is no time 

requirement at all except that the examination occur during 

the shift. 

At oral argument~ MSHA stated that it was presently following this policy, had 

informed its personnel that it was the policy that they should follow, and 

that it was a fair interpretation. 

The MSHA Inspection Manual states that the examination of belts on which 

men are not transported shall be started without delay after each coalproducing shift which has begun. With regard to assertions that its MSHA's 

footnote 6 (continued) 

"Instructions in the Coal Mine Inspection Manual, which indicate a 

different enforcement policy with regard to 30 C.F.R. § 75.303, are not 

current. In fact, MSHA's enforcement policy with regard to 30 C.F.R. 

§ 75.303 is currently under review and once completed, new enforcement 

guidelines will be published and enforced. In the interim, because of these 

recent instructions now given to MSHA personnel in the affected areas, it is 

unlikely that recurring citations of this nature will be issued to mine 

operators." 

1232 
enforcement policy is currently under review and that new enforcement guidelines will be published, counsel stated: 

We did not imply or did not mean to imply that we are 

going to change our policy and not follow Judge Merlin's 

decision. We just feel that our entire enforcement policy 

on this matter, including preshift examinations which were 

not the subject of this case, is under review. 

We are not trying to change this decision or what the 

law is by new policy. It is a matter of interpretation and 

we feel that we have no disagreement with Judge Merlin's 

interpretation. 

MSHA presented the following as background to the matter: 

I think there is no question that we feel that the operator here did conduct an adequate preshift examination of the 

coal-carrying belts which was performed 3 hours before the 

beginning of the shift. A West Virginia law requires preshift 

examinations of coal-carrying belts 3 hours before the start 

of the shift and the operator is complying with that. So, in 

view of that, we now feel that the operator is meeting the 

requirements of 30 C.F.R. § 75.303 if he examines the belts 

at some time during the shift and if that examination is 

completed. 

MSHA acknowledged that if the conveyor were preshifted within 3 hours 

of the start of the shift, the requirement to examine the belt immediately 

after the start of the shift would in effect require two examinations within 

3 hours and that such a requirement might be harsh. MSHA stated that because 

of the 40 miles of belts, there would be people walking belts all day long 

because as soon as they finished their preshift examination they would have 

to start their onshift examination. MSHA conceded that the language on its 

face does not require the operator to begin his onshift examination immediately upon the start of the shift and that it was his option to conduct the 

onshift examination along with the State-required preshift examination. 

The citations have been vacated, but, when an operator contests a citation, the Secretary cannot deprive the Commission of jurisdiction by vacating 

such citation. Climax Molybdenum Company v. Secretary of Labor, and Oil, 

Chemical and Atomic Union, Local 2-244 1 MSHC 2538 (1980) (hereinafter, 

Climax). In Climax, the Secretary concluded that he could not prove that 

violations occurred. He vacated the citations and moved that the operator's 

notices of contest be dismissed as moot. The vacation of the citations was 

not challenged but the operator sought a declaratory order interpreting the 

standard alleged by the citations to have been violated. The Commission, in 

denying the operator's request for declaratory relief, stated that the Secretary's motion to dismiss the operator's notices of contest should have been 

granted only upon terms and conditions that the judge deemed proper; however, 

t'J')') 

~4..' ... ·l.)~' 
the only appropriate relief which should have been granted by the judge in 

that case was to vacate the citations in question with prejudice. To erase 

any doubt as to whether the citations had been dismissed with prejudice the 

Commission entered an "adjudication on the merits and vacated the citations 

with prejudice.n ]_/ 

The approach taken in Climax will also be taken here. Rather then simply 

granting MSRA's motion to dismiss, the citations are vacated with prejudice. 

It is found that.Citation Nos. 898068 and 918432 issued to U.S. Steel were 

terminated on terms in accordance with the Act. MSRA conceded that section 

75.303 does not require that coal-carrying belt conveyors be inspected without 

delay after a coal-producing shift ha.s begun and that they may be examined at 

any time during the shift. MSRA's enforcement personnel have been instructed 

accordingly. The language of section 75.303 and the corresponding statutory 

provision do not specify the time at which inspections of belt conveyors on 

which coal is carried must be made, other than that such inspection must take 

place after the coal-producing shift has begun. 

At oral argument, counsel for U.S. Steel moved for leave to amend its 

notices of contest to include as relief requested a declaratory order interpreting section 75.303. 8/ Counsel for MSHA resisted the motion for a 

"Any citation or order issued under this section shall ~emain in effect 

until modified, terminated or vacated by the Secretary or his authorized 

representative, or modified, terminated or vacated by the Commission or the 

courts pursuant to section 105 or 106." 

Commission Rule l(b) states: 

"Applicability of other rules. On any procedural question not regulated 

by the Act, these Procedural Rules, or the Administrative Procedure Act 

( 5 U.S.C. §§554 and 556), the Commission or any judge shall 

guided so far as practicable by any pertinent provisions of the Federal Rules 

of Civil Procedure as appropriate. 

"Fed.R.Civ.P. 4l(a)(2) states in part: 

"(a) Voluntary dismissal: Effect Thereof. 

* * * 11 (2) By Order of Court. Except as provided in paragraph (1) of this 

subdivision of this rule, an action shall not be dismissed at the plaintiff's 

instance save upon order of the court and upon such terms and conditions as 

the court deems proper. * * * Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." (Emphasis added.) 

8/ Section 105(d) states in part: 

- ''If * * * an operator of a * * * mine notifies the Secretary that he 

intends to contest the issuance of [a] * * * citation * * * the Secretary shall 

immediately advise the Commission of such notification, and the Commission 

shall afford an opportunity for a hearing (in accordance with [5 u.s.c. §554] 

* * *), and thereafter shall issue an order, based on findings of facts, 

affirming, modifying, or vacating the Secretary's citation * * * or directing 

relief * * *·" (Emphasis added.) 
declaratory order and objected to the timeliness of the motion. MSHA argued 

that it had conceded that section 75.303 did not require an inspection of 

belt conveyors on which coal is carried without delay after the beginning of 

the shift, that the citations had been vacated, and that steps had been taken 

to insure that inspectors would no longer issue such citations pending revision of the Inspection Manual. While MSHA stated that there might be changes 

in the inspections regarding preshif t examinations when review of the 

Inspection Manual was completed, it acknowledged that the decision in 

Consolidation Coal Company was correct and would be followed. 

With the parties in accord on the provisions of the standard with 

respect to the time that inspections of belt conveyors carrying coal must be 

made, the remaining issue in this case involves to some extent the outdated 

provisions of the Inspection Manual which are now under review. The standard 

in issue is only one part of the statutory inspection scheme set forth in 

section 75.303 of the Act under the general heading "Ventilation." That section also requires certain inspections within 3 hours immediately preceding 

the beginning of any shift, at the start of each shift, at least once during 

each coal-producing shift, and at least once each week. Certain persons are 

prohibited from entering until the results of some of these examinations are 

reported to the surface. The section also prohibits the entry of persons 

under certain conditions unless some of the examinations have been made 

within 8 hours. These requirements should be considered in conjunction with 

any interpretation under which an inspection could be started at the beginning 

of one shift and the next inspection need not be completed until the end of 

the succeeding shift. Due to the possible impact of some of these provisions 

on others also contained in section 75.303, MSHA properly argues that a review 

is necessary before changes are made in inspection procedures. The\standard 

prescribes the time for inspections of belt conveyors on which coal is carried 

in the general terms "after each coal-producing shift has begun." MSHA no 

longer considers this to mean "without delay" after each coal-producing shift 

has begun and it has taken appropriate steps to insure that Contestant is not 

again wrongfully cited for failure to make such inspections without delay. 

With the ruling by the Administrative Law Judge in Consolidation Coal Company 

and the concessions by MSHA in its motion and on oral argument, it would not 

be prudent to prescribe with more exactitude by declaratory order the time 

at which inspections of coal-carrying belt conveyors should be made. The 

record does not establish the harm, if any, to Contestant caused by the issuance of the citations and it is unlikely that Contestant will suffer harm 

from the same misinterpretation of the standard in the future. Moreover, no 

reason has been advanced which would warrant risking disturbances of the 

statutory scheme of inspections by additional interpretation. The record in 

these cases does not contain all of the relevant evidence to afford full consideration of the effects of any different interpretations. It is preferable 

that further interpretation of the standard involved herein be made on a caseby-case basis and that any changes in inspection procedures by MSHA within the 

bounds of the standard should be made only after careful review. Of course, 

changes beyond the bounds of the standard should be made only by amendments 

to the standard. 
U.S. Steel asserts that it needs the decision of another administrative 

law judge interpreting section 75.303 so that it has another piece of paper 

to hand to enforcement personnel to show them that the law does not require 

that the examination be started immediately after the shift has begun. After 

holding in Consolidation Coal Company that the mandatory standard requires 

only that belt conveyors on which coal is carried be examined after each 

coal-producing shift has begun, the judge stated that there is no requirement 

of immediate examinations of belt conveyors after the start of a production 

shift and indeed there is no time requirement at all except that the examinations occur during the shift. There is little more that a judge could do to 

interpret the standard more broadly in favor of the position of the operator 

even if that were to be his decision after consideration of a full record. 

The interpretation in Consolidation Coal Company has already been adopted by 

MSHA. A repetition of this interpretation in a declaratory order without 

the benefit of a full record, as now urged by U.S. Steel, would not only be 

inappropriate, but would have no significant effect on inspection procedures. 

As in Climax, where a request for a declaratory order was denied, a ruling by 

the judge "would [be] nothing more than an advisory opinion based upon a hypothetical state of facts." Furthermore, there are insufficient facts, either 

stipulated or hypothetical, in the instant cases of the precision and scope 

necessary to provide a proper basis for a meaningful interpretation. 

U.S. Steel also urges that another administrative law judge's ruling 

in a declaratory order would give the Mine Safety and Health Administration 

another chance to decide if they want to seek discretionary review by the 

Commission. MSHA has conceded that the decision in Consolidation Coal 

Company was a fair interpretation of the standard and did not seek qiscretionary review so even if the interpretation in a declaratory order were to 

be as broad as in that decision, it is not likely that discretionary review 

would be sought by MSHA. At oral argument, MSHA stated that if it had wanted 

another decision, it certainly would not have vacated the citations, but would 

have put on testimony as to why the examination should have been conducted 

immediately after the start of the shift and would have made a full record 

by calling witnesses interested in the provision and how it is interpreted. 

MSHA asserted that it had not chosen to do so and had no intention of doing 

soo MSHA has stated that it is in agreement with U.S. Steel as to the 

requirements of section 75.303 and that it is unlikely that discretionary 

review by the Commission would be sought for vacation of the citations in 

this decision. 

MSHA and U.S. Steel are in agreement on the current policy which has 

been disseminated to the inspectors and the Inspection Manual is under 

review. It is unlikely that similar citations will be issued. The issuance of a declaratory order is not necessary to afford u.s. Steel relief in 

this matter and would not be prudent at this time. Accordingly, Contestant's 

motion for leave to amend is DENIED. 

123~ 
ORDER 

Citation Nos. 898068 and 918432 are VACATED WITH PREJUDICE. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant 

Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 

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

Harrison B. Combs, Esq., United Mine Workers of America, 900 15th 

Street, NW., Washington, DC 20005 (Certified Mail) 

1237 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 'I MAY 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 80-299-M 

Petitioner A.C. No. 12-00084-05005 

v. 

MULZER CRUSHED STONE COMPANY, 

a Partnership, 

Appearances: 

Before: 

Respondent 

DECISION 

Steven E. Walanka, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Illinois for Petitioner; 

Philip E. Balcomb, Mulzer Crushed Stone Company, Tell City, 

Indiaμa, for Respondent. 

Administrative Law Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA) under section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter,the Act), 

to assess a civil penalty against Mulzer Crushed Stone Company (hereinafter 

Mulzer) for a violation of a mandatory standard. The proposal for assessment of a civil penalty alleges a violation of 30 C.F.R. § 56.12-25 in that 

the surge tunnel feeder did not have a frame ground. 

The parties filed preliminary statements and a hearing was held in 

Evansville, Indiana on February 24, 1981. Inspector George LaLtimondiere 

testified on behalf of MSHA. Nelson R. Paris testified on behalf of Mulzer. 

Both parties submitted posthearing brief so 

ISSUES 

Whether Mulzer violated the Act or regulations as charged by MSHA and, 

if so, the amount of the civil penalty which should be assessed. 

APPLICABLE LAW 

30 C.F.R. § 56.12-25 provides as follows: Mandatory. All metal 

enclosing or encasing electrical circuits shall be grounded or provided with 

equivale~t protection. This requirement does not apply to battery-operated 

equipment. 
Section llO(i) of the Act, 30 u;s.c. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalties, 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. 

STIPULATIONS 

The parties stipulated the following: 

1. That the Administrative Law Judge had jurisdiction in matters 

related to the Mine Safety and Health Act of 1977. 

2. That the inspector who issued the citation was a duly authorized 

representative of the Secretary of Labor. 

3. That the size of the mine as to production of tons or man-hours 

per year is 179,118. 

4. That the size of the company as to production tons or man-hours 

per year is 469,971. 

~ 

5. That the proposed assessment will not harm Respondent's ability to 

continue its operations. 

6. That Citation No. 366846 has been terminated. 

7o That Respondent owned and operated a surge tunnel feeder motor on 

March 12~ 19800 

80 That Respondent operates a limestone (crushed and broken) type 

facility. 

9o That Respondent is doing business under the Act and that it is under 

the commerce provision of the Act. 

SUMMARY OF THE EVIDENCE 

MSHA contends that the flexible conduit which connected the feeder motor 

and the solid conduit was the only source of grounding for the motor, and 

since this flexible conduit was broken off, Mulzer ·violated 30 C.F.R. 

§ 56.12-25 in not providing a ground or equivalent protection. MSHA Inspector, George LaLumondiere, testified that during the course of his regular 

inspection conducted at Cape Sandy Quarry on March 11, 12, 13, 1980, he 

1239 
examined the surge tunnel motor for a source of a ground. The only one he 

observed was the flexible conduit. Although he made no tests for continuity, 

he assumed that the motor was not grounded since the flexible conduit was 

loose and not connected to the solid conduit on the belt frame. 

Mulzer contends that the flexible conduit was only one of three possible 

sources of grounding. Mulzer's chief electrician, Nelspn Paris, testified 

that the other sources are the power company's system and the six ground rods 

located behind the switch house. Mulzer maintains that the conduits provide 

a ground by covering the wires which transport power to the motor from a 

starter switch and fuse disconnect mounted on the tunnel wall. The starter 

box is grounded, thus making the conduit part of another grounding path. 

Paris explained, however, that the primary purpose of the flexible conduit 

is to protect the wires from flying material and vibration, and not to provide 

a ground. 

MSHA maintains that the motor frame could not provide a solid ground 

because the bolts, frame and equipment were rusted. The inspector testified 

that the frame was bolted to the conveyor belt frame and that the bolts were 

rusty. Although he did not remove the bolts to examine whether they were 

rusty inside, he assumed from his prior experience that they were. While 

concluding that there could be no good ground because of the rusty conditions, he admitted that it is possible to have a solid ground if only the 

surface of the bolts were rusted. The inspector stated that he made no tests 

of the equipment because he had rio instruments, and would have had to call 

another inspector to check the grounding efficiency. 

Mulzer contends that a primary ground, satisfying the safety standard, 

is provided by the firm attachment of the motor frame to the grounded conveyor structure. Although Mr. Paris had never seen four loose boltJ, he 

testified that the mere weight of the motor would be capable of carrying a 

ground even in the absence of the bolts. Six to eight weeks prior to the 

inspection:the system's grounding capabilities were checked. At that time, 

the ohm meter read zero ohms, and the system was determined to have good 

continuity" From this reading Mulzer assumed that the bolts were not rusted 

on the insideo Mro Paris stated that, after the citation was issued, the 

company did not make any electrical tests to determine whether there was 

adequate grounding. They felt there was no need since the motor was still 

secure to the frame. 

Mulzer argues that the fact that the feeder motor was running at the 

~ime of inspection, is evidence that the motor was securely attached to the 

frame, providing a good grounding path. It claims that in order to maintain 

the necessary tension on the V-belts sufficient to transmit power from the 

motor to the feeder, the bolts must be tightened firmly. Therefore, although 

the bolts were rusted on the exterior, they still provided sufficient pressure 

to establish intimate contact between the motor and the grounded frame. 

At the hearing, the inspector admitted that he was not an electrician. 

He stated that he has had specific electrical training and previously had 
handled electrical problems involving refrigeration and air conditioning. 

Mr. Paris testified that he has been an electrician for 37 years. He was 

involved in the installation of the electrical system at the quarry, supervising its open delta system. 

DISCUSSION 

Having considered all the testimony, evidence, and written arguments 

submitted in this case, I find that MSHA has failed to prove the fact of 

violation. MSHA alleged a violation of 30 C.F.R. § 56.12-25, yet it has 

not shown that the surge tunnel motor was not, in fact, grounded. 

MSHA maintains that the flexible conduit was the only source of grounding for the motor. It cited Mulzer for a violation of 30 C.F.R. § 56.12-25 

since the flexible conduit was broken off and could not provide a grounding 

path. As evidenced by the testimony of the inspector, MSHA's conclusion 

was based only upon the inspector's visual observations of the motor. He 

made no tests for continuity and relied only upon his experience in finding 

a violation. 

MSHA also contends that the frame was not a source of grounding 

because the bolts, frame and equipment were rusted. It was unable, however, 

to show that the bolts were rusted on the inside. Since the inspector 

testified that he did not remove the-bolts to examine their condition, MSHA 

has not demonstrated the ineffectiveness of the bolts in securing the motor 

to the frame. Again, the inspector made no tests of the frame's grounding 

efficiency. 

Mulzer's conclusion that the detached flexible conduit was not sufficient to sustain a violation of 56. 12-25 is supported by the evidence of 

alternative grounding sources. Mr. Paris' testimony indicates that the frame 

of the motor provided an effective ground. Mr. Paris testified that the mere 

weight of the motor, even in the absence of bolts, kept the motor secure to 

the frame for an adequate ground. This evidence demonstrates the inconsequentiality of a rusted exterior on the equipment's ability to provide a 

groundo 

In their briefs, the parties raise 

§ 56.18-2 regarding shift inspections. 

a violation of this safety standard, it 

this proceedingo 

the issue of a violation of 30 C.F.R 

Since MSHA has not cited Mulzer with 

is not a relevant consideration in 

Having found that MSHA has not established the fact of violation, it 

is not necessary to examine the remaining criteria of section llO(i) of the 

Act. Therefore, the citation alleging a violation of 30 C.F.R. § 56.12-25 

must be vacated and this proceeding dismissed. 

124J 
ORDER 

WHEREFORE, IT IS ORDERED that Citation No. 366846 alleging a violation 

of 30 C.F.R. § 56.12-25 is vacated and this civil penalty proceeding is 

DISMISSED. 

~O. A. Laurenson, Judge 

Issued: 

Distribution Certified Mail: 

Steven E. Walanka, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 S. Dearborn St., Eighth Floor, Chicago, IL 60604 

Philip E. Balcomb, Mulzer Crushed Stone Company, P.O. Box 248, 

Tell City, IN 47586 

1242 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE. LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

'I MAY 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Complaint of Discharge, 

Discrimination, or Interference 

Ex rel. THOMAS C. WHITE, 

Complainant 

Docket Nos. WEVA 81-71-D 

HOPE CD 80-71 

v. 

VALLEY CAMP COAL COMPANY, 

Respondent 

No. 15-A Mine 

DECISION 

Appearances: Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for Complainant; 

Robert S. Stubbs, Esq., Jackson, Kelly, Holt & O'Farrell, 

Charleston, West Virginia, for Respondent. 

Before: Judge Meli ck 

This case is before me upon the complaint by the Secretary of Labor on 

behalf of Thomas C. White pursuant to section 105(c)(2) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~·, the "Act," alleging 

that Mr. White was unlawfully discharged by the Valley Camp Coal Company 

(Valley Camp). An evidentiary hearing was held on February 10, 1981, in • 

Charleston~ West Virginia. 

The specific issue in this case is whether Mr. White 

charged by Valley Camp under section lOS(c)(l) of the Act 

safety-related activities at Valley Camp's No. 15-A Mine. 

reads in part as follows: 

was unlawfully disbecause of his 

Section 105(c)(l) 

No person shall discharge or in any other manner discriminate against * * * or otherwise interfere with the exercise 

of the statutory rights of any miner, [or] representative of 

miners * * * because such miner [or] representative of miners 

* * * has filed or made a complaint under or related to this 

Act, including a complaint notifying the operator or the 
operator's agent* * * of an alleged danger or safety or 

health violation in a coal or other mine * * * or because 

of the exercise by such miner [or] representative of miners 

* * * on behalf ~f himself or others of any statutory right 

afforded by this Act-. 

If the Complainant proves by a preponderance of the evidence that he 

was engaged in a protected activity and that his discharge by the operator 

was motivated in any part by the protected activity then he has established 

a prima facie case under this section of the Act. Secretary ex rel. Pasula 

v. Consolidation Coal Company, 2 FMSHRC 2786 (October 1980) •. For the reasons set forth below, I find that Mr. White has indeed established such a 

case here. 

Before his discharge on June 19, 1980, Whit.e was employed at the Valley 

Camp No. 15-A Hine as a beltman and was chairman of the union mine committee 

and the union health and safety committee. White was subsequently reinstated 

to his job with back pay as the result of an arbitration decision rendered 

August 18, 1980. White here seeks only a finding that he was unlawfully discharged for engaging in activities protected by section 105(c)(l) of the Act, 

and an order that his employment records be expunged of any reference to that 

discharge. }) 

It is undisputed that White had, over an extended period of time, engaged 

in various activities which are clearly protected under section 105(c)(l). 

More particularly, Valley Camp concedes that White had "actively and vigorously 

enforced health and safety rights" and had always been active in reporting 

safety violations to the company and to state and Federal authorities. The 

last of these protected activities occurred on June 18, 1980. On the morning 

of that date, White was directed by Jeff Schoebel, the general mine superintendent, to replace certain roof bolts to correct a deficiency.previously discovered by an MSHA inspector. White later decided that it was unsafe for him 

to work at the task without assistance. He telephoned outside the mine, reachassistant superintendent Ray Lyons. He told Lyons of his safety concerns 

and requested alternate work. Lyons complied with the request but on the next 

gave White a notice of suspension-with-intent-to-discharge. 

While conceding that White had engaged in these protected activities, 

Camp argues that its discharge of White was not motivated in any part 

·17 The Secretary of Labor also petitions in this case on its own behalf for 

an order assessing a civil penalty against Valley Camp for violations of section lOS(c) of the Act. The Secretary withdrew this request at hearing 

acknowledging that the operator had not been given its rights pursuant to 

30 C.F.R. Part 100. Valley Camp agreed however, to permit the introduction 

of evidence in the instant case regarding penalty criteria under section 

llO(i) of the Act and to waive its right to a subsequent hearing should any 

penalty be proposed and to allow the administrative law judge to render a 

decision in any subsequent penalty case arising before the Commission based 

on the record in this proceeding. 

124'1 
by these activities but rather was the direct result of its enforcement of a 

longstanding absenteeism policy. I conclude, however, that White's discharge 

was indeed motivated at least in part by his protected activities. In reaching 

this conclusion I have n~cessarily relied upon circumstantial considerations. 

One consideration is the close proximity in time between White's last protected 

activity and his discharge. He refused to perform work" because of allegedly 

unsafe conditions on June 18, 1980, and was discharged early the next day. 

Another consideration is the evidence of threats and expressions by mine management of ill-will toward White because of his safety-related activities. It 

is uncontradicted that mine superintendent John Necessary had told White in 

early 1980 following a dispute over the abatement of an alleged safety violation that he did nothing but cause the company trouble. It is also undisputed 

that around April 1980, following another argument over safety conditions in 

the mine, Necessary threatened to fire White and to bar him from future 

employment in the coal industry. Around the same time, mine foreman James 

Lucas threatened physical injury to White after White had demanded safety 

chains for a mantrip. While it is true that Ray Lyons, the official who 

actually made the final decision to discharge White, was not among those to 

whom these remarks have been attributed, there is no doubt that he was subject to the influence of a clearly pervasive management attitude toward 

White's safety activities. 

The final consideration supporting my conclusion is the assertion by 

Valley Camp of what I find to have been a flimsy pretext for its discharge 

of White, i.e., an alleged violation of a purported absentee policy. Valley 

Camp's own-evidence shows that while this so-called absentee policy had been 

in effect for as long as 10 years, until 1980 no one had ever been discharged· 

under it. Moreover, it was not a written policy and the unwritten ~olicy, 

which ostensibly had been reannounced to all employees at a December 10, 1979, 

safety meeting, was subject to widely varying interpretations even among management. 2/ According to Assistant Superintendent Lyons, the policy consisted 

of four steps. First, if an employee were absent for 2 days within a 30-day 

period without medical excuse he would receive a verbal warning. Second, after 

two similar absences (for 2 days without medical excuse) in any subsequent 

30 days, the employee would receive a written warning. After a third similar 

infraction, the employee would receive a 3- or 5-day suspension. After a 

fourth similar infraction, the employee would be discharged.· According to 

Mine Foreman Lucas, on the other hand, it was only a three-step process and 

infractions other than unexcused absences could also be considered. Finally, 

according to statements attributed by Harold Knight, one of Valley Camp's witnesses, to superintendent John Necessary, management never intended in any 

event to uniformly enforce the policy that was announced to employees on 

December 10. I conclude from this evidence that indeed Valley Camp never had 

any single uniformly enforced absentee policy but rather had many policies 

loosely interpreted by each official and which could be arbitrarily invoked 

at their convenience to mask unlawful motivation for personnel action. 

J:.} A written absentee policy was subsequently issued on September 15, 1980. 
Even assuming, arguendo, that the four-step "policy" described by Ray 

Lyons was indeed invoked against White as alleged by Valley Camp, I find that 

it was an erroneous invocation because Valley Camp considered as the first 

step a violation that predated the announcement of the policy. According to 

Valley Camp, White received the first warning from Superintendent Necessary 

on December 3, 1979, but Valley Camp did not announce tb employees that the 

policy was going to be enforced until the December 10, 1979, safety meeting. 

The newly announced policy was admittedly to be enforced only prospectively 

after that date. Within this framework of evidence I conclude that White had 

at most only three infractions under the program. Valley Camp's discharge of 

White under a four-step policy was therefore unwarranted. Under all the circumstances I conclude that the alleged invocation of such an absentee policy 

was indeed only a thinly disguised pretext for the discharge of White. I am 

accordingly persuaded that White's discharge was motivated by his protected 

safety-related activities. 

It is apparent from the foregoing discussion that Valley Camp's alternative argument must also fail. It claimed. that even assuming part of its 

motive for discharging White was unlawful, it was also motivated by White's 

unprotected violation of its absentee policy and that it would have discharged 

White in any event for his violation of that policy. Pasula, supra at page 

2800; Secretary ex rel. Robinette v. United Castle Coal Company, 2 FMSHRC ~~ 

(April 3, 1981). As the Commission said in Pasula, supra, on these issues 

the employer must bear the ultimate burden of persuasion. Th_e employer must 

show that it did in fact consider the employee deserving of discipline for 

engaging in the unprotected activity alone and that it would have disciplined 

him in any event·. Inasmuch as I have concluded that Valley Camp did not during 

relevant times have in effect any clear, nondiscriminatory absentee•policy 

and that even assuming that it had such a policy and that policy was the 

one invoked against White, that it was not properly invoked, it follows that 

Valley Camp has not met this burden of persuasion. I therefore conclude that 

Mr. White was discharged in violation of the provisions of section 105(c)(l) 

of the Act. 

ORDER 

It is ORDERED that Respondent expunge from its em loyment records any 

reference to its discharge of Thomas C. White on June 9, 1980. 

121f~ 
Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of 

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

PA 19104 (Certified Mail) 

Robert S. Stubbs, Esq., Jackson, Kelly, Holt & O'Farrell, P.O. Box 553, 

Charleston, WV 25322 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ASSONET SAND & GRAVEL CO., 

Respondent 

MAY t 1 t98t 

Civil Penalty Proceeding 

Docket No. YORK 80-123-M 

A.O. No. 19-00283-05005 

Assonet Mine & Mill 

DECISION 

Appearances: David L. Baskin, Attorney, U.S. Department of Labor, 

Boston, Massachusetts, for the petitioner. 

Before: Judge Koutras 

Statement of the Case 

This proceeding was initiated by the petitioner against the 

respondent through the filing of a proposal for assessment of civil 

penalties pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 820(a), proposing civil penalties 

for five alleged violations of certain mandatory safety standards 

promulgated pursuant to the Act. A hearing was held in Providence, 

Rhode Island, on April 1, 1981, and while the petitioner appeared 

pursuant to notice, respondent did not. 

The issues presented in this proceeding are: (1) whether respondent 

has violated the provisions of the Act and implementing regulations as 

alleged in the petition for assessment of civil penalties, and, if so, 

(2) the appropriate civil penalties that should be assessed against 

the respondent for the alleged violations based upon the criteria set 

forth in section llO(i) of the Act. Additional issues are identified 

and disposed of in the course of this decision. 

In determining the amount of civil penalty assessments, section 

llO(i) of the Act require~ consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator charged, 

(3) whether the operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the violations, and 

(6) the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of the violations. 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S.C. § 801 et~· 

2. Section llO(i) of ,the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et~· 

Discussion 

I consider the respondent's failure to enter an appearance at the 

hearing to be a waiver of any further rights to be heard in this matter. 

In the circumstances, I ruled that respondent was in default, the hearing 

proceeded as scheduled, and petitioner presented testimony and evidence 

in support of the citations which were issued in this case as well as 

its proposal for assessment of civil penalties. 

With regard to the failure by the respondent to enter an appearance 

in this case, the record reflects that the notices of hearing in these 

proceedings were mailed to the parties 'by registered mail on February 5 

and March 20, 1981, and the return postal service registered mail receipts 

reflect that both the petitioner and the respondent's counsel received 

actual notice of the hearing. Although the starting time of 9:30 a.m., 

was delayed until 10:30 a.m;, at the request of petitioner's counsel, 

respondent's counsel was notified of the one-hour delay through telephone 

calls made to his office on the afternoon of Tuesday, March 31, 1981, the 

day before the scheduled hearing, both by petitioner's counsel as well 

as my secretary. Additional calls were made on the morning of April 1, 

1981, both by petitioner's counsel as well as my secretary in an effort 

to ascertain thewhereabouts of respondent's counsel. His answering 

service confirmed that counsel had received the previous messages concerning the one-hour delay in the starting time of the hearing, but 

efforts to ascertain his whereabouts were to no avail. Further, petitioner 1 s 

counsel stated that prior attempts by him to contact respondent's counsel 

for the purpose of discussing the case in preparation for the hearing 

and exploring possible stipulations were unsuccessful. 

I was present at the hearing room from 9:00 a.m. on April 1, 1981, 

until the conclusion of the hearing at approximately 1:00 p.m., and at 

no time did respondent's counsel appear. The hearing began at 10:30 a.m., 

and concluded at approximately 1:00 p.m. In view of the foregoing 

circumstances, I can only conclude that respondent 1 s counsel never intended 

to enter an appearance, and his failure to do so has resulted in respondent's 

being held in default, I conclude that respondent has been given more 

than an adequate opportunity to be heard, and I conclude that respondent 

has waived its right to any further hearing and that the issuance of any 

show-cause order would be a fruitless gesture. I have considered this 

case de novo and my decision in this regard is made on the basis of the 

evidence and testimony of record as presented by the petitioner in support 

of its case at the hearing. 

124B 
The citations issued in this case, exhibits P-1 through P-4, and 

P-8, are as follows: 

Citation No. 222590, 5/14/80, 30 CFR 56.14-6 

A section of a guard that was provided for the tail pulley 

on the 3/8" conveyor was removed and not replaced. There 

was one man in the area. The pinch points were exposed. 

Citation No. 222591, 5/14/80, 30 CFR 56.14-6 

A guard that was provided for the tail pulley of the 

3/5" stone conveyor was constructed of light weight expanded 

metal. A plant employee bent the side of the guard up to a 

right angle to the conveyor frame which exposed the tail 

pulley pinch point. There was one man in the area. 

Citation No. 222592, 5/14/80, 30 CFR 56.14-6 

The top section of a guard that was provided for the V-belt 

drive on the scalping screen was removed and not replaced. 

The pinch points were exposed. There was one man in the 

area. 

Citation No. 222593, 5/14/80, 30 CFR 56.14-6 

A guard that was provided for the fly wheel on the scalping 

screen was removed and not replaced. There was one man in 

the area. 

Citation No. 222537, 5/20/80, 30 CFR 56.11-2 

A hand railing that was provided for the elevated walkway 

around the tail pulley of the upper swing sand conveyor 

was removed and not replaced. One man works in the area. 

The height is approximately 20 feet. 

Testimony and Evidence Adduced by the Petitioner 

MSHA inspector Earl Giovanni confirmed that he conducted an inspection 

of respondent's mining operation on May 14, 1980, and was accompanied 

by plant foreman Frank Ferriera. The mine in question is a sand and 

gravel operation, was in operation at the time of the inspection, and 

the mine employs approximately five individuals. The plant was in 

production at the time of the inspection, and he confirmed the existence 

of the conditions and practices which he cited in each of the citations 

which he issued on May 14, and confirmed that they were violations of 

the cited mandatory safety standards (Tr. 17-47); exhibits P-1, P-2, P-3, 

and P-4). He also confirmed the conditions cited in a citation which he 

issued on May 20, 1980, and testified that the conditions were in violation 

of mandatory safety standard section 56.11-2 (~r. 47). 
With regard to citation no. 222590, Mr. Giovanni testified that 

the guard which had been installed at the tail pulley location which 

was cited had been cut away with an acetylene torch to facilitate access 

to the tail pulley bearing. The opening was large enough for a person 

to place his hand through, and in doing, he would have contacted the 

pulley pinch points. He also stated that a plant laborer admitted cutting 

out the hole so that he could service or oil and greas~ the bearing 

(Tr. 18-19). Although he observed no men in the immediate area during 

the inspection, he observed some foot prints on the ground around the 

tail pulley location, and the tail pulley was adjacent to a walkway. 

He believed that anyone walking by with loose clothing would be in danger 

of contacting the exposed pinch point, and he believed the condition was 

dangerous (Tr. 21-22). 

With regard to citation no. 222591, the inspector testified that 

the guard installed for the tail pulley in question was marginal in 

that it was constructed of very light mesh wire. The guard had been 

bent up at a right angle, thereby completely exposing the entire end 

of the tail pulley. He believed that someone had bent the guard in such 

a fashion to facilitate greasing and Mr". Ferriera confirmed that this 

was true. The pulley was running at the time of the inspection, the 

cited condition was obvious, and persons had to walk by the location to 

reach a nearby walkway (Tr. 27-28). 

Mr. Giovanni testified that citation no. 222592 was issued because 

a guard which had been provided for the V-belt drive and scalping screen 

had been removed and was lying within six· feet of the screen in the walkway 

and had not been replaced. Mr. Ferriera admitted that someone forgot to 

put the guard back on the equipment, and the inspector believed it had 

been taken off to change a belt and had been off for four days (Tr: 32-33). 

Inspector Giovanni testified that citation no. 222593 was issued after 

he observed that a guard which had been provided for the flywheel on a 

scalping screen had been removed and left lying on an adjacent walkway. 

The screen was the same one previously cited in citation no. 222592, but 

the flywheel in question was on the opposite side of the screen drive 

pulley previously cited (Tr. 37). There was evidence that the guard 

weld had broken and that the guard had never been replaced. The condition 

was obvious and someone could have been injured if their hand or arm 

were caught in the unguarded flywheel (Tr. 39). The scalping screen, 

flywheel, and V-belt were all running when he observed the conditions 

(Tr. 44). 

Citation No~ 222537 was issued after the inspector observed that 

the plant operator had removed the hand railing on an elevated walkway 

around the tail pulley of a swinging sand conveyor, and the plant 

laborer admitted that he did so because it was in his way (Tr. 47-48). 

The railing citatation was the second one he issued for the same location, 

and the previous one was issued on August 21, 1979, for the very same 

condition (Tr. 48). The platform location was some 20 feet off the ground, 

and he observed a laborer working on the platform cleaning sand off the 

platform at the time of his inspection (Tr. 49). 

1251 
Findings and Conclusions 

Fact of violations 

I conclude and find that the testimony and evidence adduced by the 

petitioner establishes the fact of violation as to each of the citations 

issued in this case. Accordingly, all of the citations are AFFIRMED. 

History of prior violations 

Inspector Giovanni testified that during prior inspections which 

he conducted on August 21, 1979, he issued 19 citations, and that 

another inspector issued eight prior citations during an inspection 

conducted on May 4, 1978. Included among these are six prior citations 

for violations of section 56.14-4 6, and eight prior citations for 

violations of section 56.11-2 (Tr. 15-16). Petitioner's counsel stated 

that a computer print-out is not available, and· that petitioner has no 

way of knowing whether the violations alluded to by Mr. Giovanni are 

in fact valid for purposes of establishing a prior history of violations 

(Tr. 16). One of the prior section 56.11-2 citations was a repeat of 

the very same handrail citation issued by the inspector. Under the 

sircurnstances, I accept the inspector's testimony as credible evidence 

of respondent's prior history of violations, and have considered this in 

assessing the penalties in this case. 

Size of business and effect of penalties on respondent's ability to continue 

in business. 

The inspector testified that the plant employed five individuals, 

and he believed it is a medium-sized operation in terms of comparison 

with similar plants he had inspected (Tr. 62). I conclude and find that 

the plant in question is a small-to-medium sized operation, and absent 

any showing to the contrary, I further find that the penalties assessed 

for the citations in question will not adversely affect the respondent's 

ability to continue in business. 

Gravity 

The inspector's testimony supports a finding that all of the citations 

issued in this proceeding were serious (Tr. 27-28, 33-34, 39, 44, 49). 

The equipment which was unguarded was running, the locations were near 

or in close proximity to walkways where men obviously passed closely by, 

and the inspector observed a man working on the elevated platform where 

the handrail had been removed. 

Good faith compliance 

The inspector's testimony, as well as the abatement notices, reflect 

that all of the conditions cited were corrected and abated within the 

time prescribed by the inspector either by replacing or repairing the 

guards in question, as well. as the missing handrail, and I have considered 

this in assessing the penalties for the citations which I have affirmed 

(Tr. 26, 28, 36, 39, 50). 

1252 
Negligence 

The testimony presented by the inspector reflects that the guards 

which were installed at two locations, citations 222590 and 22259~ were 

deliberately cut away and bent back to facilitate maintenance or greasing. 

In these circumstances; I conclude and find that these two citations 

resulted from the respondent's reckless disregard of the mandatory 

safety standards cited, and that the citations amount to gross negligence. 

As for the remaining citations, I conclude that the evidence adduced 

supports a finding of ordinary negligence in that the respondent failed 

to exercise reasonable care to prevent the conditions cited. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that the following civil penalties are appropriate and reasonable 

for each of the citations which I have affirmed: 

Citation No. 

222590 

222591 

222592 

222593 

222537 

Date 

5/14/80 

5/14/80 

5/14/80 

5/14/80 

5/30/80 

Order 

30 CFR Section 

56.14-6 

56.14-6 

56.14-6 

56.14-6 

56.11-2 

Total 

Penalty Assessment 

$ 250 

250 

195 

195 

210 

$ 1100 

The respondent IS ORDERED to pay civil penalties in the amounts 

shown above, totaling $1,100 within thirty (30) days of the date of this 

decision and order, and upon receipt of payment by the petitioner, this 

matter is dismissed. 

Administrative Law Judge 

Distribution: 

Paul B. Morley, Esq., 80 Front St., Scituate, MA 02066 (Certified Mail) 

David L. Baskin, Esq., U.S. Department of Labor, Office of the Solicitor, 

JFK Federal Bldg., Government Center, Boston, MA 02203 (Certified Mail) 

Assonet Sand & Gravel Company, P.O. Box 7, Ridge Hill Road, Assonet, MA 

02702 (Certified Mail) 

l ') r: '{ J.. . ·J· 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, CO LORA DO 130204 

) 

MAY 13 1981 

SECRETARY OF LABOR, MINE SAFETY ) CIVIL PENALTY PROCEEDING 

AND HEALTH ADMINISTRATION (MSHA), ) 

) DOCKET NO. WEST 80-332-M 

Petitioner, ) A/O No. 45-02140-05004-A 

) 

v. ) DOCKET NO. WEST 80-333-M 

) A/O No. 45-02140-05005-A 

FRANK L. MILES, ) 

BEN LEILER, 

APPEARANCES: 

Respondent, ) Miles Sand & Gravel Company 

) Upper Dickey Pit 

) Silverdale, Kitsap County, 

Respondent. ) Washington 

) 

DECISION 

Edward R. Fitch, Esq. 

Office of the Solicitor 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

for the Petitioner 

Mr. Frank L. Miles, pro se 

Miles Sand & Gravel Company 

P.O. Box 130 

Auburn, Washington 98002 

Mr. Ben Leiler, pro se 

Miles Sand & Gravel Company 

P.O. Box 130 

Auburn, Washington 98002 

for the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

The above two cases, which were consolidated for hearing, involve 

alleged violations of section llQ(c) of the Federal Mine Safety and Health 

Act of 1977 •1 

1/ Whenever a corporate operator violates a mandatory health or safety 

standard .•. ' any director, officer, or agent of such corporation who 

knowingly authorized, ordered, or carried out such violation •.. shall be 

subject to the same civil penalties, fines, ... that may be imposed upon a 

person under subsections (a) and (d). 

125'1 
The president of Miles Sand and Gravel Company and the plant superintendent 

are alleged to have "knowingly authorized, ordered, or carried out" the 

alleged violation of 30 C.F.R § 56.11-1 cited in Withdrawal Order No. 

351863, issued May 1, 1979. The cited regulation requires that a safe 

means of access shall be provided and maintained to all working places. 

The withdrawal order alleged that an employee was observed walking the 

reject conveyor belt with a grease gun in his hand. It further alleged 

that the reject conveyor is 300 feet long and approximately 30 feet above 

the ground at its highest point. Both respondents filed written statements 

denying the allegations of the petitioner. 

FINDINGS OF FACT: 

1. On May 1, 1979, Miles Sand & Gravel Company was a corporation and 

its president was Frank L. Miles, respondent, and the plant superintendent 

was Ben Leiler, respondent. (Exhibits 4 and 5). 

2. The mine where the alleged violation took place is a surface sand 

and gravel mine with seven employees. (Exhibit 5). 

3. Miles Sand & Gravel Company has more than one plant location and 

is a medium sized sand and gravel operation located in the State of 

Washington. (Tr. 42). 

4. Miles Sand & Gravel Company paid a penalty assessment of $150.00 

for the violation of 30 C.F.R. § 56.11-1 alleged in Withdrawal Order 

351863, issued May 1, 1979. (Exhibit 8). 

5. The corporate operator has a history of seventeen paid violations 

and the· respondents have no previous violations (Exhibit 8, Tr. 47). 

6. The violation alleged in Withdrawal Order No. 351863 was abated 

promptly and in good faith by the corporate operator. (Tr. 145, Exhibit 

1). 

7, At the time of the inspection on May 1, 1979, the MSHA inspector 

observed and photographed an employee of the corporate operator walking up 

the reject conveyor toward the head pulley with a grease gun in his hand. 

(Tr. 25, Exhibit 7). 

8, The conveyor is approximately 300 feet long and 30 to 40 feet 

above the surface of the ground. The conveyor belt itself is approximately 

30 inches wide. (Tr. 71) . 

9. On the day of the inspection, May 1, 1979, the means of access 

provided to an employee in order to grease the head pulley of the conveyor 

belt ·was to either walk up the conveyor belt or to climb up the reject rock 

material which falls off the end of the conveyor and forms a pile on the 

ground. (Tr. 37). 
10. The accumulation of rock material from the end of the conveyor 

builds in height until it is sufficiently high enough to allow an employee 

to walk up the refuse pile and grease the head pulley at the end of the 

conveyor belt. (Tr. 37). 

11. In order to abate the withdrawal order for the alleged failure to 

provide a safe means of access to a working place, the employees of the 

corporate operator lower.ed the elevated grease fittings to a safe 

lubricating location; (Exhibit 2). 

12. On February 5, 1979, at another gravel pit owned by the corporate 

operator and located in the State of Washington, an employee was injμred, 

after greasing the head pulley on the elevated end of a conveyor, when his 

foot slipped on the conveyor belt and he fell approximately 15 feet into a 

sand pile. The conveyor was protected with a walkway and railing. (Exhibit 

6). 

ISSUES: 

1. On May 1, 1979, did the corporate operator fail to provide and 

maintain a safe means of access to the working area, thus violating 30 

C.F.R. § 56.11-1 as alleged in the withdrawal order? 

2. If so, did. the respondents knowingly authorize, order, or carry out 

such violation within the meaning of section ·llO(c) of the Act? 

DISCUSSION: 

Respondent Ben Leiler made admissions which go to the unsafeness of 

the access to the head pulley and also go to his knowledge of unsafeness. 

He stated to the inspector that it was very "taboo" to grease conveyors in 

the manner being used, but that they did not have the manpower to install 

greasing locations. (Tr. 39). At the time of the inspection, he also 

stated to the inspector that a few months prior to the inspection on May 1, 

1979 ~ an employee had been injured at their other plant when he fell 

approximately 15 feet into a sand pile from a conveyor belt while greasing 

the head pulley. That conveyor was equipped with a walkway and railing, 

but the conveyor observed by the inspector on May 1, 1979, was not so 

equipped. 

There were two options mentioned as access open to employees who were 

maintaining and greasing the head pulley and any other parts connected with 

the conveyor. One was the method observed by the MSHA inspector, with 

the employee walking up the conveyor, and the other method was to climb up 

the reject pile at the end of the conveyor after the pile was of sufficient 

height. 

Witnesses for the respondents gave the op1n1on that it was safe to 

climb the reject pile in order to service the head pulley. However, even 

if this were true, if there is no reject pile at the time, the only means 

of access would be for an employee to walk up the conveyor belt. 
Mr. Leiler agreed that it was hazardous to walk up the conveyor belt 

and that he had intended to correct the situation by lowering the grease 

fittings to ground level. This was his intention after the employee fell 

from the conveyor belt several months earlier, and was injured. The reason 

given for the failure to install the lowered fittings was a lack of time, 

since all available men were on production. It is significant that there 

are other reasons why an employee might have to climb up the reject pile 

other than to grease the head pulley. Rollers have to be changed 

periodically on the conveyor and a motor or the V-belt drives might have to 

be changed. 

Under the circumstances, there was no consis~ent and safe means of 

access to the work area provided by the corporate operator. According to 

the employee who was observed walking up the conveyor belt, this was a 

regular method of access to the area which was to be greased. Thus, the 

petitioner has shown by a preponderance of the evidence that a safe means 

of access to the working area was not maintained and provided and that 

there was a violation of 30 C.F.R. § 56.11-1. 

The next question was whether or not respondents knowingly 

authorized, ordered, and carried out such violation within the meaning of 

section llO(c) of the Act. 

The Commission has found that Congress did not intend that "knowingly" 

should be synonymous with "willfully". It has also supported a judge's 

finding that "knowingly" as used here means •iknowing or having reason to 

know". Secretary of Labor, Mine Safety and Health Administration v. Kenny 

Richardson, BARB 78-600-P, (Jan. 19, 1981). 

Respondent Ben Leiler, by his own admissions, knew that access to a 

working·place by walking up the conveyor belt was unsafe or hazardous prior 

to the date of the inspection on May 1, 1979. He told the MSHA inspector 

that he had wanted to move all grease locations down to ground level 

since the earlier experience of the employee falling off of the conveyor 

belt. However~ no changes were made until after the withdrawal order was 

issued on May l~ 1979. By the following day, the work of lowering the 

grease fittings was accomplished. Thus, no action was taken until an MSHA 

inspector happened along and observed the violation taking place. I 

conclude from his own admission that respondent Ben Leiler knew or had 

reason to know of the continuing violation on or before May 1, 1979, and, 

as superintendent for the corporate operator, that he did nothing about it. 

Accordingly, he violated section llO(c) of the Act as alleged by 

petitioner. 

The evidence does not show that respondent Frank L. Miles knew or had 

reason to know that a safe means of access was not provided and maintained 

to the working place on or before May 1, 1979, that being the date that the 

withdrawal order was issued and the cited regulation was violated. There 

1257 
was hearoSay testimony from respondent Leiler indicating that Miles may have 

been aware of the fact that employees were walking up the conveyor belt 

to gr-ease the head pulley, but this evidence is neither conclusive nor 

substant:lal. 

CONCLUSIONS: 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and the subject matter. 

2. The Miles Sand & Gravel Company is a corporation and on May 1, 

1979, it violated 30 C.F.R. § 56.11-1 as alleged in Withdrawal Order No. 

351863 in failing to provide and maintain a safe means of access to a 

working place. 

3. Respondent Ben Lieler violated section llO(c) of the Act as 

alleged in the complaint of the petitioner. 

4. Petitioner has failed to prove that respondent Frank L. Miles 

violated section llO(c) of the Act as alleged. 

ORDER 

The petition filed in DOCKET NO. WEST 80-332-M, Frank L. Miles, 

respondent is hereby dismissed. In DOCKET No. WEST 80-333-M, Respondent 

Ben Leiler is found to have violated section llO(c) of the Act and is 

ordered to pay a penalty assessment of $250.00 within 30 days of the date 

of this decision. 

C./f-7 ' -? ( ,-1(/2£ ~,;_~~ ~ "" 

/Jon D. Boltz , ~7) 

: Administrative i~w Judge 

Distribution: 

Edward Fitch, Esq., Office of the Solicitor, Unite<l States Department of 

Labor, 4015 Wilson Blvd., Arlington, Virginia 22203 

Mr. Frank L. Miles, President, Miles Sand & Gravel Company, P.O. Box 130, 

Auburn, Washington 98002 

Mr. Ben Leiler, Plant Superintendent, Miles Sand & Gravel Company, 

P. 0. Box 130, Auburn, Washington 98002 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333W. COLFAX AVENUE 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE ·SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

) 

KENNECOTT COPPER CORPORATION, AND ) 

M. M. SUNDT CONSTRUCTION COMPANY, ) 

) 

RESPONDENTS. ) 

APPEARANCES: 

Mildred R. Wheeler, Esq. 

Office of the Solicitor 

DECISION 

United States Department of Labor 

450 Golden Gate Avenue 

San Francisco, California 94102 

MAY 13 1981 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-141-M 

ASSESSMENT CONTROL NO. 

02-00150-05003 

MINE: Kennecott Ray 

for the petitioner. 

Patrick Paterson, Esq. 

1700 First National Bank Plaza 

100 West Washington Street 

Phoenix, Arizona 85003 

Marvin A. Husted, Vice President 

M. M, Sundt Construction Company 

4101 East Irvington 

Tucson, Arizona 85726 

for the respondents 

Before: Judge John J. Morris 

STATEMENT OF THE CASE 

In this case the Secretary of Labor on behalf of the Mine Safety and 

Health Administration (MSHA) seeks an order affirming certain citations 

and assessing civil penalties. The contest arises under the Federal Mine 

Safety and Health Act, 30 U.S.C. § 801 ~ seq.(1977). 

Pursuant to notice, a hearing was held in Phoenix, Arizona on April 3, 

1980. At that time MSHA and Kennecott were the only parties to this 

action. At the hearing, Kennecott indicated its desire to withdraw its 

notice of contest of citation nos. 377273, 377270, 377269, and 377268. 

They admitted the violations occurred and agreed that the penalties 

proposed were reasonable. 

125B 
MSHA moved to dismiss citation nos. 377272 and 377267. In support 

thereof, the Secretary stated that there was insufficient evidence to prove 

these alleged violations. 

The Secretary and Kennecott submitted a stipulation of facts as to the 

remaining citation nos. 377265 and 377266. The occurrence of the alleged 

violations was not disputed. Respondent contested these citations on the 

ground that the violations were the responsibility of M. M. Sundt 

Construction Company (Sundt), an independent contractor. Kennecott also 

argued that if it were held liable for these violations it should not be 

found to have been negligent because it had no control over the job site 

where the violations occurred. 

Subsequent to this hearing, MSHA adopted regulations establishing a 

method for citing independent contractors. As a result of these 

regulations, the Federal Mine Safety and Health Review Conunission in 

Secretary v. Pittsburgh .and Midway Coal, BARB 79-307-P et. al. (1980) gave 

the Secretary the opportunity to decide whether to continue pursuing the 

existing action against the owner-operator or to proceed against the 

independent contractor claimed to have violated the standards. 

In light of the regulations and the P & M decision, I issued an order 

directing the parties to state their positions with respect to these recent 

developments. Kennecott responded by restating its contention that Sundt 

was solely responsible for the violations. It requested that the citations 

be vacated. The Secretary chose to continue the proceedings against 

Kennecott unless Sundt agreed to voluntarily substitute itself as the 

respondent with respect to the two citations in question. 

On 'November 10, 1980, Kennecott submitted a motion to substitute Sundt 

for itself with respect to citation nos. 377265 and 377266. Sundt 

indicated its agreement to this proposal. Sundt stated that it would 

withdraw the notice of contest as to these citations if the penalties were 

recomputed to reflect the amount which would have been assessed if the 

citations had been issued originally to Sundt. Sundt contended that the 

penalty should be based on its company size and history of violations 

rather than on Kennecottis. 

Sundt was subsequently joined as a party in this case, but only as to 

citation nos. 377265 and 377266. On May 4, 1981, the Secretary and Sundt 

filed a motion proposing penalties based on Sundt's size, history of 

violations and prompt good faith abatement of each violation. 
ORDER 

Pursuant to 29 C.F.R. 2700.11 Kennecott's notice of contest as to 

citations nos. 377273, 377270, 377269 and 377268 is withdrawn. These 

citations are affirmed, After reviewing the criteria for the assessment of 

a penalty, I also affirm the proposed penalty for each of these citations 

set forth below. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

377273 

377270 

377269 

377268 

$195.00 

122.00 

150.00 

130.00 

Kennecott is directed to pay these penalties within 30 days of the date of 

this order. 

Pursuant to 29 C.F.R. 2700.11, MSHA's motion to dismiss citation nos. 

377272 and 377267 is granted. These citations and their proposed penalties 

are vacated. 

Furthe~ pursuant to 29 C.F.R. 2700.11, Sundt's notice of contest as to 

citation nos. 377265 and 377266 is withdrawn. These citations are 

affirmed. After reviewing the criteria for assessment of a penalt~ I also 

affirm the proposed penalty for each of these citations as set forth 

below. 

Citation No. 377265 

Citation No. 377266 

$90.00 

65.00 

Sundt is to pay these penalties within 30 days of the date of this order . 

• 

DISTRIBUTION: 

Mildred R. Wheeler, Esq., Office of the Solicitor, United States Department of Labor, 450 Golden Gate Avenue, San Francisco, California 94102 

Patrick Paterson, Esq., 1700 First National Bank Plaza, 100 West 

Washington Street, Phoenix, Arizona 85003 

Mr. Marvin A. Husted, Vice President, M.M. Sundt Construction Company, 

4101 East Irvington, Tucson, Arizona 85726 

126J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 IAY 1 ( 198l 

SECRETARY OF LABOR, Complaint of Discrimination 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF DIANNE MEULLER, 

Complainants 

v. 

AARON MINING, INC., 

Respondent 

Docket No. WEST 81-99-DM 

Aaron Crescent Valley Mine 

DEQISION APPROVING SETTLEMENT 

Appearances: Linda R. Bytof, Attorney, U.S. Department of Labor, San 

Francisco, California, for the complainants; Bruce T. Beesley, 

Esquire, Reno, Nevada, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This is a discrimination proceeding initiated by the complainants 

against the respondent pursuant to section 105(c)(l) of the Federa~ Mine 

Safety and Health Act of 1977, charging the respondent with unlawful 

discrimination against the complainant Dianne Meuller for exercising 

certain rights afforded her under the Act. The matter was initially 

scheduled for hearing in Reno, Nevada on March 17, 1981, but the matter 

was continued at the request of both parties. A further continuance 

was granted when the parties advised me of a proposed settlement disposition 

of the controversy. 

Discussion 

On May 4, 1981, MSHA filed a motion to dismiss, complainant's 

consent, and the settlement,agreement. In support of the motion to 

dismiss, MSHA states as follows: 

1. On May 4, 1981, Dianne Meuller and Respondent Aaron Mining, 

Inc. entered into a settlement agreement resolving the issues 

raised by Complainant's discrimination complaint. 

2. By the terms of the agreement, Complainant, Dianne Meuller, 

agreed to withdraw her discrimination complaint filed with the 

Mine Safety and Health Review Administration on May 23, 1980. 

1262 
3. Complainant, Dianne Meuller has authorized the Secretary 

of Labor to move for dismissal of the Complaint filed on 

her behalf, as evidenced by the attached statement of 

Complainant's consent. 

Pursuant to the agreement between Complainant, Dianne Meuller and 

Respondent, Aaron Mining, Inc., the proposed settlement is as follows: 

1. Respondent, Aaron Mining, Inc., agrees to pay Dianne Meuller 

the sum of $6,300.00 payable upon Ms. Meuller's execution 

and delivery of the agreement. 

2. Respondent further agrees to expunge from Ms. Meuller's personnel 

records any and all reference to the circumstances relating to 

the subject complaint of discrimination. 

3. Insofar as Respondent currently is not engaged in the operation 

of any mine within the State of Nevada, Respondent cannot 

reinstate Ms. Meuller to her former job as a blaster. However, 

if during the twelve (12) month period subsequent to the date 

of execution of the agreement by Respondent, Respondent commences 

to operate any mine within the State of Nevada, and directly 

employs at said mine individuals with duties similar to that 

of a blaster, Respondent further agrees to offer Ms. Meuller 

employment in said mine in any job with the same or siinilar 

duties and at the same rate of pay she was earning at the date 

of her termination from the Aaron Crescent Valley Mine. 

4. Complainant, Dianne Meuller, agrees to withdraw the subj complaint of discrimination filed with the Mine Safety and Health 

Administrat·ion on May 23, 1980 and hereby authorizes the Secretary 

of Labor to dismiss the complaint filed with the Federal Mine 

Safety and Health Review Commission on her behalf. 

5, Upon execution of the Settlement Agreement, the payment of 

$6,300.00, and the expungement of her personnel records, as 

aforesaid, Complainant agrees to and hereby releases Aaron Mining, 

Inc. from any and all liability arising out of her termination 

from Aaron Mining, Inc. on April 24, 1980, which is the subject 

of her Complaint referred to herein. 

MSHA has submitted a copy of a consent statement executed by Ms. Meuller 

on May 4, 1981, which verifies that she voluntarily withdrew her complaint 

and entered into the settlement agreement with respondent. Under the 

circumstances, I see no reason why the motion should not be granted. 

ORDER 

In view of the foregoing, the proposed settlement disposition of this 

matter is APPROVED and the Complainant's motion to dismiss is GRANTED. 

-cte~. 

J1 ~utras ~-

Administrative Law Judge 

1 ' .. J L.' 'J _.._ ._, \) ~ . 
Distribution: 

Linda R. Bytof, Esq., U.S~. Department of Labor, Office of the Solicitor, 

Box 36017, San Francisco, CA 94102 (Certified Mail) 

Bruce T. Beesley, Esq., Woodburn, Wedge, Blakey & Jeppson, 16th Floor, 

First Nat'l Bank Bldg., One East First St., Reno, NV.80505 (Certified 

Mail) 

12611 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 14 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ISLAND CREEK COAL CO., 

Respondent 

Docket No. WEVA 8U-658 

A.O. No. 46-02724-03010H 

No. 1 Surface Mine 

DECISION 

Appearances: James P. Kilcoyne, Jr., Attorney, U.S. Department 

Before: 

of Labor, Philadelphia, Pennsylvania, for the Petitioner; 

Marshall S. Peace, Esquire, Lexington, Kentucky, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding 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), proposing a civil penalty 

assessment for one alleged violation of mandatory safety standard 30 

CFR 77.1607(b), The alleged violation was served on the respondent 

on September 5, 1979, through the issuance of citation no. 0648106, 

a section 107(a) imminent danger order issued by MSHA Inspector Sherman 

L. The condition or practice described by the inspector on 

the face of the order is as follows: 

The elevated inclined roadway over which four 120 ton. 

rock trucks were hauling spoil material from the 

shovel to the valley fill at the Mill Creek No. 3 

was slipping because it was raining hard and the 

road was covered with mud. The rock trucks were 

sideways when they came down the roadway 

and had to raise their beds for more traction going up 

the roadway. Even with the beds raised the trucks 

were spinning their way up the incline. The roadway 

did not have adequate berms on its outer banks which 

was elevated more than 100 feet above the hollow. The 

rock truck drivers did not have full control of the 

trucks while coming down the roadway to the fill 
(77.1607(b)). It is reasonable to expect someone would 

get injured, possibly fatally, if the trucks continued 

to haul over this roadway in the above condition and 

it is reasonable to expect this could happen before 

the rain stops and/or the condition is corrected. 

Respondent filed an answer to the proposal .for a~sessment of civil 

penalty and denied the existence of the alleged violation. Respondent 

asserted that it followed the inspector's directions in its desire to 

cooperate with him, but denied that the conditions described constituted 

a violation of the Act or regulations. 

A hearing was convened at Charleston, West Virginia, on March ~' 1981, 

and the parties appeared and participated fully therein. The parties 

were afforded an opportunity to file post-hearing briefs, and the arguments 

presented herein have been fully considered by me in the course of this 

decision. 

Issues 

The principal issues presented in this proceeding are: (1) whether 

respondent has violated the provisions of the Act and implementing 

regulation as alleged in the proposal for assessment of civil penalty 

filed in this proceeding., and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged-violation 

based upon the criteria set forth in section llO(i) of the Act. 

In determining the amount of a civil penalty assessment, section 

110 of the Act requires consideration of the following criteria: (1) 

the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator charged, 

(3) whether the operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the violation, and 

(6) the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 u.s.c. § 801 ~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.l et~· 

Stipulations 

The parties stipulated to the following (Tr. 6-8): 

1. No. 1 Surface Mine is owned and operated by Island Creek Coal 

Company. 

126fi 

j 
2. Island Creek Coal Company and the No. 1 Surface Mine are 

subject to the jurisdiction of the Federal Mine Safety and Health 

Act of 1977. 

/ 

3. The administrative law judge has jurisdiction over this 

proceeding pursuant to Section 105 of the 1977 Act. 

4. The inspector who issued the subject citation was a duly 

authorized representative of the Secretary of Labor. 

5. A true and correct copy of the subject order was properly 

served upon the operator in accordance with Section 104(a) of the 1977 

Act. 

6. Copies of the subject order, modification and termination are 

authentic and may be admitted into evidence for the purpose of establishing 

their issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

7. The alleged violation was abated after a withdrawal order was 

issued. 

8. Island Creek Coal Company is a large operator within the meaning 

of the Act and assessment of a civil penalty in these proceedings will 

not adversely affect the operator's ability to continue in business. 

Testimony and Evidence Adduced by the Petitioner 

William Hamrick, safety engineer, International Safety Division, 

United Mine Workers of America, testified that on September 5, 1979, 

he visited Island Creek's No. 1 Surface Mine in order to inspect the 

roadway at the Mill Creek job site. He concluded that the haul road 

was slippery because it was raining continuously, and he noticed trucks 

slipping and sliding due to the mud on the embankment and on the incline. 

He determined that the truck operators did not have full control of their 

vehicles, and he observed the 120-ton Webco trucks going up the hill 

with their beds raised in order to the back wheels in traction. He 

testified that he told mine superintendent L. A. Moses that the weather 

conditions were too bad to operate on the road. 

Mr. Hamrick stated that only one area of the roadway was repaired 

prior to the arrival of th~ )1SHA inspector. This was not on the road 

incline, but in a location near the shovel. Mr. Hamrick and truck driver 

Jim Humphrey drove over to the road with Inspector Slaughter and they 

pointed out to him that there were no berms on either side of the road 

incline. Mr. Hamrick explained that the lefthand side of the uphill 

road dropped 50-60 feet to a coal pit and the right side dropped about 

100 feet. Mr. Hamrick believed that the weather conditions could cause 

the trucks to collide, and that the lack of rocks on the berms would 

not keep the trucks from going over the steep embankment. 

1267 
Mr. Hamrick stayed at the mine throughout the day, periodically 

visiting the roadway to inspect conditions. He observed trucks hauling 

dry material down the road to the valley fill. He stayed at the property 

until about 3:15 or 3:30 and he noted that it was still raining at this 

time (Tr. 13-21). 

On cross-examination, Mr. Hamrick conceded that h~ had never operated 

any of the large Webco trucks. He described the descent of the fully 

loaded trucks down the road incline as follows (Tr. 24-25): 

Well, when they approach the steep incline, 'cause 

I was standing, you know, looking up at the trucks and I 

could tell the trucks were sliding, the operator, you know, 

in his steering, and I guess in his braking, the trucks 

would slide back. You know, I'd say, approximately, sideways for 20 feet. They'd catch, go to the other side, same 

way, I'd say a distance 15 to 20 feet. 

In response to bench questioning, Mr. Hamrick stated that he talked 

with several of the truck drivers on the day in question, and while two 

of them acknowledged that they were slipping, they still felt that they 

had full control of their vehicles. Another driver felt that the road 

conditions were too dangerous, that he did not have full control of his 

vehicle, and he withdrew his truck from the roadway (Tr. 26-29). 

In response to further questions, Mr. Hamrick indicRted that he had 

had problems with the road in question on previous occasions A citation 

had been issued previously on April 27, 1979, for lack of berms on the 

roadway and for slippery road conditions. His recommendation for keeping 

the roadway in question safe included packing hard material, such as 

shale, on the road, which would hold longer and have a good grip for 

traction (Tr. 145-146). 

MSHA Inspector Sherman Slaughter, testified that he visited No. 1 

Surface Mine on September 5, 1979, after receiving a request to do so 

from Mr. Hamrick. He arrived at approximately 11:15 or 11:30 a.m., 

and met with Mr. Humphrey, Mr. Moses, Mr. Chapman, and Mr. Hamrick. 

Using a sketch of the haul road and adjacent area, exhibit P-1, 

Mr. Slaughter demonstrated the physical layout of the haul road and 

discussed his observations of the road conditions on September 5. 

He stated that it was raining and the roads were slick. Trucks were 

hauling spoil materials, a fine, grainy-like sandstone material, and 

spreading it on the road. Other loads of material were being transported 

down to the valley fill area. feet beneath the lefthand side 

of the road was a coal pit and 100 feet below the right side was the 

valley fill. He noted that there were inadequate berms on either side 

of the road for which he later issued a citation at 11:45 a.m. 
After speaking with company officials about the condition of the 

haul road, Mr. Slaughter drove to the valley fill area, and periodically, 

he would return to the haul road to check whether the conditions had 

worsened. At 4:50 p.m., he decided that it was necessary to issue an 

imminent-danger order for ,a violation of section 77.1607(b), and in 

order to keep the trucks from using the roadway because of the slipping 

conditions. 

Mr. Slaughter believes that section 77.1607(b) requires a truck 

operator to maintain full control of his equipment at all times. He 

determined that the operators in this instance were not in control because 

he saw one truck going up the hill with its bed up, and it could only 

partially go up the roadway because of the muddy, slick conditions. He 

noted that when the trucks attempted to brake, they would slide sideways. 

Since the berms were inadequate, he was concerned that the trucks could 

slide toward the valley fill which was a 100 foot drop over the side 

of the roadway. 

Mr. Slaughter explained that rocking the road had helped for awhile, 

but the continual rain had caused the road to become slick again. He 

determined that the respondent was negligent in that it should have stopped 

the hauling earlier. He noted that it was raining all day and both 

Superintendent Moses and the mine foreman were near the haul road 

throughout the day. He felt that there was a danger of a fatal injury 

if a truck went over the embankment (Tr. 29-45). 

Mr. Slaughter testified that the operator had 

about 12:30 or 1 o'clock. Because it continued 

to rain, that they continue to rock the road, and he 

conced~d not tell management to cease their production runs 

because it was not raining hard and the trucks were still getting 

traction. About 3 o'clock, conditions begain to worsen, which led him 

to issue an imminent-danger order. He felt that since the truck drivers 

did not have full control of their vehicles, they could possibly have 

lost control and gone through any berm at the side of the roadway 

(Tr. 45-65). 

Mr. Slaughter testified that since the 

road was wet, muddy, and slick, there was a detrimental effect on the 

truck driver's ab to keep his truck under control, and in his view the 

respondent should have stopped production and use of the road prior 

to the time he issued the order (Tr. 65-67). 

Mr. Slaughter admitted that if 

the operator had continued rocking the road, keeping it dry enough 

to maintain traction, he may not have issued the order. He indicated 

that the violation was eventually abated by the use of a grader, which 

skimmed off the slick material on the road's surface, and he terminated 

the order once the Lrucks were able to get traction on the road (Tr. 

40-41, 67-76). 

126B 
In response to further questions, Mr. Slaughter stated that he 

was not aware of prior complaints about the road's conditions. He had 

never issued any citations on the road in the past (Tr. 93-96, 126-129, 

138-139). 

James L. Humphrey, mobil equipment operator, and chairman of the 

Mine Safety Committee, ,testified as to the factors which led him to 

withdraw his truck from operation on September 5, 197~. He stated that 

it had been raining, causing the road to become slick and he was having 

difficulty in maintaining full control of his vehicle. He also felt 

that the top of the hill was too soft and muddy, and the lack of berms 

made it unsafe to drive on the road. Once he withdrew himself, he 

discussed the matter with mine foreman, Ed Allen, and then called 

Mr. Hamrick at approximately 10:30. Thereafter, MSHA Inspector Slaughter 

arrived, but prior to his arrival, Mr. Humphrey stated that he observed 

two or three trucks still driving on the slick haul road. He testified 

that rocking the road works for a certain period of time, but if it 

continues to rain, the sandstone material breaks up, and the road 

becomes slick again (Tr. 78-87). 

On cross-examination, Mr. Humphrey testified that two or three 

other truck operators did not withdraw themselves on the day in question. 

He admitted that his own truck had some mechanical defects, in that the 

tires were worn, but he did not complain to mine management about the 

condition of his tires (Tr. 87-90). 

In response to bench questioning, Mr. Humphrey indicated that mine 

management did not object to his withdrawing himself from the roadway 

in question, and he went back to work the next day after the road 

passed inspection (Tr. 90-93). Mr. Humphrey explained the extent.of 

previous complaints about the road which had been brought to the attention 

of management. He stated that any time it rained or if the ground froze 

and thawed, the conditions presented an imminent danger. He felt that 

it is a mine foreman's duty to conduct a preshift examination and warn 

the miners of any danger before they begin to work. He believed that 

the problem could have been solved if the respondent had begun plowing 

the road at 6:30 a.m. and put gravel on it. He felt that a hard rock, 

such as limestone, should be used (Tr. 139-145). 

Testimony and Evidence Adduced by the Respondent 

L. A. Moses, mine superintendent, testified that he had been at 

the mine and had observed the truck hauling prior to Mr. Humphrey's 

complaint. He had already ordered the shovel operator to put sandy, 

coarse material on the road. Using the sketch, (exhibit P-1), Mr. Moses 

explained what was being done to the road. On the upper inclined 

portion, dry material was dumped and spread with a dozer. The 

true.ks would turn in the shovel area, back down the grade, and dump their 

loads. This process continued for approximately 700 to 800 feet, where 

the trucks would turn around, and Mr. Moses testified that the trucks 
were not slipping and sliding badly because they were able to turn around. 

The work on the road continued all day and the truck operators were never 

instructed to stop placing material on the road surface. Mr. Moses 

stated that no trucks had ever run off the edge or into a berm and 

they had never had any injuries or accidents on the road (Tr. 103-110). 

On cross-examination, Mr. Moses admitted that he.was not at the 

haul road between 3 and 5 o'clock but was working in another mine ar~a. 

However, he indicated that he was in conununication with the second shift 

foreman by means of a radio. He stated that it was normal for a truck 

to slip and slide as it proceeded down a wet road. He did not consider 

the road to be unsafe and he never heard any of the truck operators 

claim that it was (Tr. 110-114). 

In response to bench questioning, Mr. Moses stated that the company 

policy was to either rip up the road or put dry material on it if they 

found it to be slippery. It is the responsibility of a foreman, who 

stays on the scene, to determine whether or not there are problems with 

road conditions. He admitted that on the day in question it had been 

raining and the roads were slippery. He explained that just after 

Mr. Humphrey had taken himself off the job, they decided to do something 

about the road. Prior to the time that the imminent danger order was 

issued, they had never shut the haul road down completely because of 

wheather conditions. It was the first time they had to shut down for a 

full shift (Tr. 120-124). 

Findings and Conclusions 

Fact of violation 

Citation No. 0648106, issued by Inspector Slaughter on September 5, 

1979, is an imminent danger order issued pursuant to section 107(a) 

of the Act. The order cites a violation of mandatory safety standard 

30 CFR 77. 1607 (b), which states as follows: "Mobile equipment operators 

shall have full control of the equipment while it is in motion. 11 

The fact that the inspector found that the conditions cited amounted 

to an imminent danger is not controlling as to the question of whether 

those conditions may serve to establish a violation of section 77.1607(b). 

It seems obvious to me from the conditions described by the inspector 

on the face of the order, a~ well as his testimony at the hearing, that 

he believed the trucks which he observed using the haulroad in question 

were not being kept under full control by the drivers while coming down 

the inclined portion of the road, and while attempting to negotiate the 

incline in the opposite direction. The inspector's conclusions in this 

regard were based on his observations of trucks sliding sideways as they 

came down the incline, as well as their spinning and sliding even with 

their beds lowered to provide traction on the rain-slicked roadway. 

Therefore, the critical question presented is whether the evidence and 

testimony adduced in this case supports the petitioner's contention that 

the trucks in question were not being maintained under full control by 

the operators. 

127:1 
In support of the citation issued in this case, petitioner relies on 

the testimony of the inspector who observed at least two of respondent's 

trucks on the elevated haul road in question. One of the trucks was 

slipping and sliding while attempting to negotiate up the elevated 

incline with its bed raised for traction. Another loaded truck was coming 

down the incline and was slipping sideways as it traversed the slippery 

roadway. In both instances, the roadway was wet due to a 

rather constant rainfall during the entire day in question, and even 

though respondent was attempting to keep the roadway dry by "rocking" 

the roadway, there came a point in time during the shift when the inspector 

believed that the truck drivers were unable to maintain full control of 

their trucks as required by section 77.1607(b). Petitioner points out 

that one of the drivers, James Humphrey, testified that he withdrew himself 

from driving a truck on the day in question because he could not maintain 

full control of the vehicle due to the slippery conditions of the raodway. 

Petitioner further asserted that respondent's witness did not deny that 

he observed vehicles slipping and sliding during the day in question, and 

argues that the respondent presented no evidence that on a normal operating 

day trucks slip and slide while operating on the incline in question, 

and drop their truck beds in an attempt to keep the vehicles under 

control. In summary, petitioner maintains that its evidence supports 

a finding that trucks do not normally slip and slide while operating 

on the haulroad in question, and that the slipping and sliding of the 

trucks on the day in question is a certain indication that the operators 

did not have full control·of the vehicles while were in motion. 

Respondent argues that since there were no accidents, injuries, or 

trucks sliding into berms on the haul road in question on the day the 

citation issued no inference can be made that the trucks were not under 

the full control of the drivers. Although the inspector spoke to some 

of the drivers at the beginning of the second shift, there is no evidence 

that he discussed the road conditions with them immediately before deciding 

to issue the imminent order. Since the inspector was present 

and had been periodically checking the road all day, respondent asserts 

that until the order was issued the drivers must have had full control 

of their trucks since the inspector issued no earlier violations. 

Further, respondent out that the condition which presented any 

hazard was the slick haul road caused by continuing rain, and the fact 

that the drivers were trying different techniques to traction does 

not indicate that did not have full control of the trucks. Conceding 

that an accident, collision, or a complete spin-out could establish a 

lack of full control of the trucks by the drivers, absent any competent 

testimony by any of the drivers, respondent maintains that the opinion 

testimony of the inspector should be given little weight in establishing 

a violation. 

After careful consideration of the arguments presented, I conclude 

that the petitioner has the better part of the argument. Respondent's 

assertion that an accident or near-miss has to occur before a violation 

is established is rejected. I find that the testimony of the inspector, 

coupled with the testimony of UMWA representative Hamrick, who also 

1272 
observed the slipping and sliding trucks, as well as Mr. Humphrey, the 

driver who withdrew himself and testified that he was experiencing 

difficulty in maintaining control of his vehicle due to the slick road 

conditions, establishes a violation of the cited standard by a preponderance 

of the evidence. In addition, even though respondent's witness Moses 

believed that slipping and sliding on a wet road was normal, I believe 

it is reasonable to conclude that since the respondent was attempting 

to improve the road conditions by hauling and spreading dry materials 

on the inclined portion of the roadway, it did so out of recognition 

that trucks were having difficulty negotiating the roadway. It seems to 

me that if the respondent really believed that slipping and sliding 

was normal, it would not have gone to such great measures to dump and 

spread dry materials on the roadway. Under the circumstances, I conclude 

and find that the trucks which were attempting to traverse the roadway 

in question were not under the full control of the drivers, and the citation 

is AFFIRMED. 

History of prior violations 

Respondent's history of prior violations is reflected in exhibit 

P-4, a computer ·print-out detailing 25 prior paid citations by the 

respondent for the period September 5, 1977, through September 5, 1979, 

through September 4, 1979. I take note of the fact that there are no 

prior citations of section 77.1607(b), and based on the size and scope 

of respondent's mining operation, I cannot conclude that its history 

of prior violations is such as to warrant any increase in the ~ivil penalty 

assessed by me in this matter. 

Size of business and effect of penalty on the respondent's ability to 

continue in business. 

The parties stipulated that the respondent is a large operator 

and that an assessment of a civil penalty for the violation in question 

will not adversely affect respondent's ability to remain in business. 

I adopt this stipulation as my finding on this issue. 

Good faith compliance 

The record reflects that abatement was achieved after a withdrawal 

order was issued and the parties so stipulated. Although respondent 

may have been taking steps to improve the conditions of the roadway 

during the rain, its rocking.became fruitless when it became evident 

that the rain would not stop, and only after the issuance of the order 

was abatement achieved. Abatement was achieved by stopping operations 

until the condition of the roadway improved. Under the circumstances, 

respondent had no choice but to cease operations and it did so at the 

inspector's insistence. Accordingly, I cannot conclude that respondent 

should be unduly rewarded for any abatement efforts which came about 

as a result of a withdrawal order. 
Gravity 

Petitioner argues that the violation is very serious in that the 

inspector issued an imminent danger order because he believed a driver 

could be seriously injured before the rain stopped or before the respondent 

could correct the hazardous road conditions. In support of its argument, 

petitioner points to the fact that the roadway in question was elevated 

more than 100 feet above the valley fill belo~, that the berms may have 

been inadequate to prevent a truck from going over the embankment, and 

that if a truck did go over, it was reasonable to expect a serious injury. 

Aside from its argument that no accident or injuries occurred, respondent 

advances no additional arguments concerning the gravity of the citation. 

After careful consideration of the arguments presented on this issue, 

and taking into account the fact that the road conditions were slippery 

and dangerous, a truck operating at the elevated incline some 100 feet 

above the valley below, would be placed in a hazardous and precarious 

position were it to slip and slide toward the embankment while loaded 

and travelling down the incline. The same could be said for a truck 

coming in the opposite direction attempting to negotiate the hill with 

its bed down. Under the circumstances, petitioner's arguments are well 

taken, and I conclude and find that the violation is serious. 

Negligence 

Conceding that the respondent attempted to correct the condition 

which caused the citation by rocking the roadway in question, petitioner 

nonetheless argues that the respondent failed to exercise reasonable 

care in correcting the condition which caused the violation. The condition 

which caused the violation was the failure of the truck driver's tQ maintain 

full control of their vehicles. The reason they could not fully control 

their vehicles was the fact that the steady rain was obviously washing 

away the dry materials that respondent was dumping on the roadway, and 

the road conditions eventually deteriorated to a point where the inspector 

believed that allowing operations to continue any further would result 

in serious inJuries. At that point in time, he issued his closure order 

and use of the roadway ceased. Petitioner's argument suggests that the 

respondent should have voluntarily closed the roadway down and ceased 

all operations until the rain stopped. By failing to do this, petitioner 

argues that respondent was negligent since it has the ultimate responsibility 

to enforce safe working practices and procedures. Coupled with the fact 

that respondent was previousiy informed that the elevated roadway is 

hazardous when in a wet and slippery condition, the fact that mine 

management was present and aware of the conditions of the roadway on the 

day the citation issued, and the fact that it ceased to rock the road 

prior to the issuance of the citation, petitioner argues that respondent 

exhibited in degree of negligence. 

Petitioner does not assert that respondent is guilty of gross negligence. 

Based on all of the ev~dence adduced in this case, I cannot conclude that 

the respondent exhibited a reckless or deliberate disregard for the safety 

of the drivers by failing to close the roadway down before the order 

127~ 
issued. It seems to me that if MSHA believes that a wet and slippery 

haulroad is ipso facto always hazardous and dangerous, then it should 

take steps to shut down the roadway at the mine in question whenever 

it rains. On the facts presented in this case, it seems to me that the 

respondent was attempting to correct the road conditions by rocking 

the roadway with dry materials to improve traction. Although the mine 

superintendent was absent from the roadway location at the time the order 

issued, he testified that he was in communication with a foreman by means 

of a radio, and since none of the drivers complained, he did not believe 

the roadway was dangerous. However, he conceded that he became concerned 

and decided to do something about the road at the time Mr. Humphrey 

withdrew himself. Under the circumstances, I cannot conclude that mine 

management did nothing about the roadway conditions, nor can I conclude 

that it simply chose to ignore the conditions. 

With regard to respondent's asserted prior knowledge of the conditions 

of the roadway, I take note of the fact that Mr. Hamrick's testimony 

suggests a difference of opinion as to how to correct any slippery 

conditions, and Mr. Hamrick indicated that some of the prior complaints 

dealt with lack 6f sufficient berms rather than trucks operating out 

of control. Further, Inspector Slaughter testified that he was not aware 

of any prior complaints about the road conditions, and petitioner's 

prior history of violations does not include any repeat violations of 

section 77.1607(b). Under the circumstances, I cannot conclude that 

the record supports ·a finding that respondent makes it a pract~ce to 

totally ignore slippery road conditions on the haulroad in question, and 

makes it a practice to ignore such conditions. 

Finally, I take note of the fact that the inspector who finally 

issued the closure order did so after he concluded that continued ~perations 

would probably result in an accident or in]ury. Up until that point 

in time, the inspector was periodically checking the conditions of the 

roadway, and even though he stated that the respondent ceased rocking 

the roadway at approximately 12:30 or 1:00 p.m., he did not advise the 

respondent to continue with the rocking operation since it was obvious 

that it was doing no further good to provide traction. He conceded 

that he did not at that time advise mine management to stop using the 

road because it was not raining hard and trucks were still able to maintain 

some traction, and at approximately 3:00 p.m., he believed that conditions 

had deteriorated to the point where he felt obliged to issue a closure 

order. Therefore, since th~ inspector who was on the scene took no 

action earlier than 3:00 p;m., to either issue a citation or a closure 

order, I believe it was reasonable for mine management to conclude 

that the roadway conditions were not such as to preclude the vehicle 

operators from maintaining full control of their trucks. 

In view of the foregoing, I conclude that the violation resulted 

from the respondent's failure to exercise reasonable care to cease 

operations at the time the order issued, and that this failure on its 

part amounts to ordinary negligence. 

l'!.7t· 
Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that a civil penalty in the amount of $1,500 is reasonable and 

appropriate for the citation which has been affirmed, and respondent 

IS ORDERED to pay the assessed penalty within thirty (30) days of the date 

of this decision and order. 

Distribution: 

~~ge ~,,~£: A. Koutras 

Administrative Law Judge 

James P. Kilcoyne, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA.19104 (Certified Mail) 

Marshall S. Peace, Esq., Box 11430, Lexington, KY 40575 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th Fl,OOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 80-131 

Petitioner A.O. No. 40-02577-03001 

v. 

Daysville Tipple 

UNITED MINERALS, 

Appearances: 

Before: 

Respondent 

DECISION 

Carole M. Fernandez, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for petitioner; 

N. F. Tankersley, United Minerals, Crossville, 

Tennessee, for respondent. 

Judge Koutras 

Statement of the Proceeding 

This civil penalty proceeding concerns proposals 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), charging the respondent with three a'11.eged violations of mandatory 

safety standards. Respondent filed a timely answer and a hearing was held on 

March 10, 1981, in Knoxville, Tennessee. Upon the completion of testimony 

and oral arguments, the parties were given the opportunity of submitting 

posthearing briefs, and both parties filed written arguments on May·4, 1981, 

and they have been considered in the course of this decision. 

Issues 

The principal issues in this proceeding are (1) whether respondent has 

violated the provisions of the Act and implementing regulations as alleged 

in the proposals for assessment of civil penalties filed, and, if so, (2) 

the appropriate civil penalties that should be assessed against the respondent for the alleged violations based upon the criteria set forth in section 

llO(i) of the Act. 

1277 
Furthermore, respondent has challenged the jurisdiction of the Act, 

posing the additional issue of whether'its tipple is a "coal or other mine" 

within that definition under the Act. 

Applicable Statutory and Regulatory Provisions 

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

et ~·, Pub. L. 95-164. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Section 3(h) of the 1977 Act. 

4. Commission Rules, 29 C.F.R. § 2700.l et~· 

Stipulations 

The parties stipulated to the following (Tr. 5): 

1. At the time the citations were issued, the tipple was a new facility 

which had just started production, and it had no prior history of violations. 

2. The tipple processes approximately 40,000 tons of coal -annually and 

is a small operation. 

3. Assuming the citations in question are affirmed, any civil penalties 

imposed will not adversely affect respondent's ability to remain in business. 

Jurisdictional Question 

Respondent argues that its tipple is not a coal mine subject to the 

regulations under Part 77 of Title 30, Code of Federal Regulations, and the 

mandatory standards contained therein. It ma:t-rhains that its only regulatory authority is OSHAa As support for this defense, respondent raises 

four arguments, a discussion of which follows. 

Respondent first points out that it is not required to have a mining 

permit from either the State or Federal Governments, and that it has no 

written contracts with any mining operations to load coal. Next, respondent refers to the Hine Safety and Health Act of 1977, section 3, part 2, 

and concludes that its tipple operation does not come within the scope of 

the definition for a coal mine. It maintains that the words "custom coal 

preparation facilities" refers only to activities conducted on, or processing 

plants located at, a particular coal mine. Since its tipple is not on the 

mine premises, it is not subject to the Act or its regulations. Finally, 

respondent examines the legislative history of the Act and asserts that the 

dangers which Congress sought to prevent in implementing the Act are not 

those associated with a coal tipple. Therefore, respondent maintains it 

should not! be subject to the regulations under the Act. 

1278 
Respondent's second defense refers to several cases issued by the 

Department of the Interior's Office of Hearings and Appeals. One such case, 

Western Engineering v. Office of Surface Mining, 1 IBSMA 202 (1979), held 

that Western's river terminal was not subject to the regulations under the 

Surface Mining Control and Reclamation Act of 1977 since the ambiguity of 

the definition for a surface coal mine made it unclear whether the Act was 

intended to cover Western's operations. By analogy, respondent argues that 

the definition for a coal mine under the Mine Safety and Health Act is 

equally as ambiguous and should not be applied to its tipple operation. 

As a third defense, respondent appeals to the Commission's sense of 

economic justice to support its position on this jurisdictional question. 

From respondent's perspective, the costs and benefits of regulating tipples 

do not warrant their being subject to the Mine Safety and Health Act. 

In its pleadings, respondent asserts that it is not a bituminous, anthracite or lignite coal mine, but rather, a tipple which crushes and loads coal, 

the bulk of which comes from 35 to 84 miles away, with most of it going to 

the Department of Energy at Oak Ridge, Tennessee. 

In addition to the assertions made by the respondent in its pleadings 

and brief filed in this matter, the testimony of the witnesses reflects that 

respondent owns several tipples, one of which has been regularl1 inspected 

and regulated by MSHA for 2 or 3 years, and that respondent has a number of 

customers for whom it processes coal at its tipple. This process includes 

the crushing, cleaning, and sizing of coal which is brought to the tipple. 

Respondent concedes·that while some of the coal is from intrastate ~ustomers, 

the tipple also processes coal which crosses state lines (Tr. 139, 140). 

Petitioner argues that respondent is subject to the jurisdiction of the 

Act in that respondent's tipple is a "coal or other mine" withi.n the meaning 

of section 4 of the Act, 30 u.s.c. § 803, the ~roducts of which enter commerce 

or the operations of products which affect commerce. In support of its position, petitioner distinguishes those cases cited by respondent, issued by the 

Board of Surface Mining Appeals, pointing to the different concerns of that 

agency and the Federal Mine Safety and Health Administration. Petitioner 

argues that the definition of a coal mine under the Mine Safety and Health 

Act includes Respondent's tipple. Finally, respondent refers to Marshall v. 

Stoudt's Ferry Preparation Cp~pany, 602 F.2d 589 (3rd Cir. 1979), cert. 

denied, NA 79-614 (January 7, 1980), which it maintains supports its position that a tipple is subject to the provisions of the Act. 

After a careful review and consideration of all of the jurisdictional 

arguments presented in this case, I conclude that the tipple in question is 

a mine within the meaning of that term as defined by the Act, and therefore 

is subject to MSHA's enforcement jurisdiction. Section 3(h)(l)(c) of the 

Act defines "coal or other mine" as "lands * * * on the surface or underground * * * used in, or to be used in, * * * the milling of such minerals, 

and includes custom coal preparation facilities." 

127B 
The Dictionary of Mining, Mineral and Related Terms, Bureau of Mines, 

1968 edition, page 859, defines the term 11 preparation plant" as including 

any facility where coal is "separated from its impurities, washed and sized, 

and loaded for shipment." The term "tipple" is defined at page 1145 as: 

Originally the place where the mine cars were tipped and 

emptied of their coal, and still used in that sense, although 

now more generally applied to the surface structures of a 

mine, including the preparation plant and loading tracks * * *· 

The dump; a cradle dump * * *· The tracks, trestles, screens, 

etc., at the entrance to a colliery where coal is screened and 

loaded. [Emphasis supplied.] 

In my recent decision, Harman Mining Corporation v. Secretary of Labor 

and UMWA, Docket Nos. VA 80-94-R through VA 80-97-R (January 2, 1981), I concluded that based on the testimony and evidence presented, there was no question that Harman's tipple preparation plant was in fact a "coal or other 

mine." As the facts here do not warrant a different conclusion, my rationale 

in Harman Mining is applicable. 

In my prior decision, I noted that the legislative history of the Act 

supports a broad interpretation of the Act's coverage requiring that doubts 

be resolved in favor of the Mine Act's jurisdiction. The report of the 

Senate Committee on Human Resources states: 

The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's intention 

that what is considered to be a mine and to be regulated under 

this Act be given the broadest possible interpretation, and it 

is the intent of this Committee that doubts be resolved in 

favor of inclusion of a facility within the coverage of the 

Act. 

S. Rep. Noo 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14; Legislative 

History of the Mine Safety a.nd Health Act, Committee Print at 602. 

In Marshall v. Stoudt 1 s Ferry Preparation Company, 602 F.2d 589, 592 

(1979), cert. denied, No. 79-614 (January 7, 1980), the Third Circuit held 

that "the work of preparing coal or other minerals is included within the 

Act whether or not extraction¥is also being performed by the operator." 

Therefore, I cannot agree with respondent 1 s assertions that the plain words 

of the Act or the legislative history support a finding that its tipple, 

which is not on the mine premises, is not subject to the Act or its 

regulations" 

The cases cited by respondent under the Federal Surface Mining Act are 

neither controlling or persuasive authority in deciding the instant jurisdictional issue. By merely examining the definition of surface coal mining 

operations in 30 C.F.R. § 700.5, it is obvious that its coverage is more 

narrow than that provided by the definition of "coal or other mine" under 

l.2HU 
the Federal Mine Safety and Health Act. The definition of surface coal mim.ng 

operations refers to "activities conducted on the surface of lands in connection with a coal mine." Such activities include processing or preparation of 

coal "at or near the mine site." 

The definition of "surface coal mining operations"·under the Surface 

Mining Act, by using limiting clauses, restricts the coverage of that law 

to those processing plants that are "in connection with" or "at or near the 

mine site. 11 The three cases cited by respondent concern themselves with 

defining the scope of these limiting clauses in determining the jurisdiction 

of that law. Specifically, Drummond Coal Company v. Office of Surface Mining, 

IBSMA 80-56 (August 6, 1980), established a two-part test for coming within 

the definition of a surface coal mining facility. A plant must be ·"conducted 

on the surface or in connection with a surface coal mine, 11 and secondly, it 

must be located "at or near a coal mine." To satisfy these tests, a judge 

must look to ownership of the facilities in question and the relative 

distances between the plant and the mine. No such analysis is required under 

the Federal Mine Safety and Health Act of 1977. The definition of a 11 coal or 

other mine" does not include limiting clauses which restrict coal preparation 

facilities to those in connection with or near a coal mine. In the absence of 

restrictive language, the Act encompasses all coal preparation facilities. 

Although respondent raises various economic arguments against jurisdiction over its tipple, I cannot consider these matters in light of the plain 

meaning of the statute and its legislative history. Additionally, since 

respondent processes coal which crosses state lines, it operates a mine 

whose products affect collh~erce. See Andrus v. P-Burg Coal Company, Inc., 

495 F. Supp. 82, 84 (S.D. Ind. 1980). 

Testimony and Evidence 

MSHA surface coal mine inspector, Lee Aslinger, confirmed that he visited 

the Daysville Tipple on June 2, 1980, as part ~fa regular construction site 

inspection. He stated that he had previously inspected the tipple on two 

occasions prior to the time it went into full operation, and during the second 

inspection, about 2 to 3 weeks before the tipple began to operate, he prepared 

a list of potential violations and gave it to Mr. Tankersley, the owner of 

United Minerals. Although it was just a representative sampling, he thought 

the list would be helpful to Mr. Tankersley. Three weeks later, Mr. Aslinger 

made an official inspection at which time he issued the citations in question 

(Tr. 6-ll)o On cross-examination, Mr. Aslinger admitted that he had been 

instructed by the respondent to prepare a list of everything required for compliance prior to the time the tipple went into operation and became energized 

(Tro 17). 

In response to bench questions, Mr. Aslinger clarified the nature of his 

inspections, and stated that in both February and May 1980, he inspected the 

construction site, at which time he was authorized to issue citations for violations in connection with health and safety during construction. Instead of 

issuing citations, Mr. Aslinger gave the operator a list of potential violations (Tr. 18-22). 

1281 
Don A. McDaniel, MSHA coal mine electrical inspector, testified that he 

conducted an electrical inspection at the tipple in May 1980, although the 

tipple was not yet in operation. According to Mr. McDaniel's supervisor, 

this was a courtesy inspection that had been requested by Mr. Tankersley, and 

he noted that citations are not normally issued during courtesy inspections. 

Although he did not prepare a written list, he remembered showing a mine 

employee the violations his inspection had revealed. He could not recall 

whether he had indicated the need for signs or fire extinguishers (Tr. 73-

77). 

On cross-examination, Mr. McDaniel testified that none of the mine 

employees had requested a list of the violations. Since the primary purpose 

of his courtesy inspection was to check the electrical facilities and not to 

look for potential fire hazards, he did not offer his opinion on the latter 

issue, and he sensed a lack of interest on the part of the operator since 

no one accompanied him during his inspection (Tr. 82-84). 

Respondent examined Steve Hastings, an employee at the Daysville Tipple. 

Mr. Hastings stated that Mr. Aslinger had been requested to give a complete 

list of potential violations which he discovered during his courtesy inspection, but Mr. Hastings was not aware of whether Mr. McDaniel had provided a 

list of electrical violations (Tr. 95-101). 

Citation No. 985423 

This citation states that "the entire length of the conveyor was not 

visible from the starting switch and a positive audible or visible warning 

system was not installed to warn persons that conveyors will be started." 

Inspector Aslinger confirmed that he issued the above citation on 

June 12, 1980, because the conveyor belt was not equipped with an audible 

alarm to warn others when it was being started. He explained that the belt 

operator is located in an electrical installa~~n about 5 to 6 feet below 

ground lever. Since this facility is covered entirely with tin and has 

no windows, it is impossible for the operator to know whether there is an 

employee doing work on the conveyor belt. He believed that an employee who 

is working on the equipment when the control switches are energized, might 

suffer a permanent or fatal injury. 

Although Mr. Aslinger observed no one working on the conveyor belt, he 

saw grease guns and shovels in the area and concluded that employees had 

been working on the belt at some earlier time. He also testified that 

Mr. Tankersley abated the violation by installing an audible alarm. system 

within the 8-day compliance period (Tr. 6-17). On cross-examination, 

Mr. Aslinger could not remember whether the conveyor belt had been started 

on the day the citation was issued (Tr. 17). 

In response to bench questions, Mr. Aslinger stated that he could not 

remember discussing the requirement of an audible warning device at his construction site inspections in February and May. He used a diagram to explain 

1282 
the location of the electrical control station in relation to the conveyor 

belt, and stated that at the point where the on~off switch was located, the 

operator could not see what was going on at the conveyor belt. The control 

switches activated the five different belts in the tipple, and it was possible 

for all the conveyor belts to be energized at one time. He then stated that 

although it only took two people to operate the conveyot and move the coal 

onto the belt, he had seen as many as four people around the belt at a given 

time. He testified that the operator abated the violation by installing a 

bell-type alarm which rang when the machine was started (Tr. 27-34, ALJ 

Exh. 1). 

Steve Hastings testified that the standard procedure, before starting 

the conveyor belt, was to call out each man's name and wait for a response. 

Additionally, there were guards on the belt to keep people from getting hurt 

(Tr. 97-98). Mr. Hastings stated that he had asked the inspector to explain 

the requirement of an audible alarm. He told the inspector about their 

method of calling out the names of each worker, but that the inspector was 

not satisfied-that this method would work (Tr. 110-111). 

Citation No. 985424 

This citation states that "a suitable danger sign was not posted at the 

major electrical installation at this surface facility." 

Inspector Aslinger confirmed that he issued this citation when he 

noticed that there was not a suitable danger sign posted at the major electrical installation facility. He was concerned that this presented a danger 

to both the employees and the people living in the family dwellings •located 

within 100 yards of the facility. He had seen children playing near the 

homes nearby, and he noted that there was nothing to keep them out. Since 

there was no fence enclosing the area, intruders could come in and not be 

aware of the electrical hazards. He reasoned that this presented a danger 

of electrical shock. The building was not ~o~~d, and the only evidence of 

it being an electrical establishment was the wires entering it (Tr. 38-41). 

On cross-examination, the inspector admitted that the switchboxes have signs 

stating "Danger High Voltage" (Tr. 49). 

Don McDaniel, testified that the tipple had a major electrical installation which presented a danger because it was made of tin and contained 

switchboxes on one side. Altfiough he did not remember observing a danger 

sign, he believed that one stating that the building contained energized 

power should be required (Tr. 77-78). 

Steve Hastings testified that all electrical switchboxes have a tag on 

them stating their size and also a sign indicating the possible danger. He 

explained that the electrical building is locked whenever the tipple is closed 

and that only the enployees are allowed in the facility when it is open. He 

had never seen any children playing around the tipple. Furthermore, he had 

received instructions requiring him to tell children and visitors to leave 

(Tr. 98-101). 
Citation No. 985425 

This citation states that "fire extinguishers were not provided for the 

permanent electrical ips~allation at this surface facility." 

Inspector Aslinger testified that he issued this citation because there 

were no fire extinguishers at the electrical installation. Since the 

building had wooden floors and contained combustible materials, the lack of 

visible fire extinguishers presented a danger. He noted that there was also 

grease, lubricants, and coal dust present in the facility, and observed two 

employees entering the building. He also maintained that Mr. Tankersley was 

aware of the requirement, since 2-1/2 to 3 years earlier, he had issued a citation for the same violation at another tipple owned by Mr. Tankersley. The 

present citation was abated by installing a fire extinguisher (Tr. 51-57). 

On cross-examination, Mr. Aslinger stated that he could not remember 

listing the need for a fire extinguisher during his previous personal inspections (Tr. 58-59). In response to bench questions, Mr. Aslinger testified 

that he issued this citation based upon his observations of the facility's 

needs. He noted that it took only one large fire extinguisher to abate the 

violation (Tr. 61). 

Don McDaniel testified that an inspector uses certain reference books 

to determine the various standards and requirements for fire extinguishers. 

These books include definitions of potential fire hazards, and they also 

instruct the inspector on the size and type required and the distance at 

which the fire extinguisher should be located (Tr. 78-81). On crossexamination, Mr. McDaniel indicated that the size and type of the fire 

extinguisher depended upon its distance from the electrical installa~ion 

building (Tr. 84-85). 

Steve Hastings testified that there was a fire extinguisher located on 

the end loader which was usually parked wi~hi-ti'20 feet from the electrical 

house. He stated that his instructions were to allow the building to burn 

if it caught on fire. If someone was inside, however, he would try to get 

them out of the building (Tr. 95-96). On cross-examination, Mr. Hastings· 

stated that there were three fire extinguishers within 20 feet of the electrical operation. He admitted that one was located on a service truck which 

was used during the day for running errands or picking up fuel. The other 

two were on a portable drilI and a front-end loader (Tr. 101-106). He also 

stated that the service truck usually stays in one place because it contains 

their tools. It is always parked in the same place and rarely leaves the 

site (Tr. 110). 

In response to bench questions, Mr. Hastings could not remember 

whether he told the inspector about the fire extinguisher on the service 

truck. He stated that he though that the standard required that the fire 

extinguisher be located in the building and not 20 feet away (Tr. 111-112). 

Upon recall, Mr. Aslinger testified that he observed the service truck 

parked about 80 to 100 feet from the tipple's electrical facility, but noted 

128~ 
that it moved from one part of the job site to ~nother. He observed the 

front-end loader, about 150 to 200 feet from the electrical installation, 

picking up bumper rails in the woodland. At the time he issued the citation, 

it was more than 20 feet from the electrical facility. The core drill was 

located about 250 to 300·feet from the building, and he observed no fire 

extinguisher within 20 feet of the electrical building (Tr. 116-120). 

Findings and Conclusions 

Fact of Violations 

Citation No. 985423 

30 C.F.R. § 77.1607 requires that "when the entire length of the conveyor is not visible from the starting switch, a positive audible or visible 

warning system shall be installed and operated to warn persons that the conveyor will be started." 

Petitioner's evidence establishes that the electrical control station 

was 5 to 6 feet below ground level and that the operator controlling the 

switches in the station could not see whether someone was working on the 

conveyor belt. Although respondent's witness t~stified that the practice 

at the tipple was to call out each man's name before starting the conveyor 

belt, I find that this type of warning is inadequate. The safety standard 

requires that an audible or visible warning system be installed and respondent offered no evidence that it had installed a proper system. Accordingly, 

the citation is AFFIRNED. 

Citation No. 985424 

30 C.F.R. § 77 .511 requires that "suitable danger signs shall be posted 

at all major electrical installations." 

The evidence and testimony presented establishes that there was not a 

suitable danger sign at the electrical facility. Testimony established that 

the electrical facility was made of tin and contained energized power, and 

the only warning of a possible danger were the tags on the switchboxes which 

alerted the reader to the danger of high voltage. Upon considering the 

testimony of the inspector that there was no fence enclosing the facility 

and that the tipple was near. a residential neighborhood, I find that the 

tags on the switchboxes were not a "suitable danger sign." Although respondentvs wintess stated that he had been instructed to keep all children and 

visitors-off the tipple grounds, this statement of company policy is no 

defense to the violation, and the citation is AFFIR11ED. 

Citation No. 985425 

30 C.F .R. § 77 .1109(d) states that "fire extinguishers shall be provided 

at permanent electrical installations commensurate with the potential fire 

t ~ 8 ,, ........ ,..., t 
hazard at such installation in accordance with the recommendations of the 

National Fire Protection Association." 

Testimony by the inspector revealed that the electrical building had 

wooden floors and presented a potential fire hazard since it contained grease, 

lubricants and other combustible materials. Having found this testimony to 

be credible, I also find that this type of facility requires that a fire 

extinguisher be available in both a permanent and accessible location. While 

evidence disclosed that there were three fire extinguishers which were usually 

located within 20 feet of the electrical operation, it was clear that they 

were not affixed in a permanent position. Respondent's witness indicated that 

one was. located on a· service truck, another on a portable drill, and a third 

on a front-end loader. Since each of these machines is either mobile or 

portable, I must conclude that the machines containing the fire extinguishers 

could possibly move to an inaccessible distance from the electrical installation. Respondent's argument that the service truck had to stay in one place 

because it held the workers' tools was contradicted by the witness' statement 

that this same truck was used during the day for running errands or picking 

up fuel. I find, therefore, that a preponderance of the evidence indicates 

that a fire extinguisher was not provided for the permanent electrical 

installation in question~ and this citation is AFFIRMED. 

Good Faith Compliance 

I find that abatement of the above citations was achieved in good faith 

within the time fixed and extended by the inspector. Petitioner indicates 

that the operator made a conscientious effort to achieve rapid compliance 

on two of the violations and should be given credit for its effort. I have 

considered this in assessing the civil penalties in this case. 

Gravity 

The lack of an audible warning device -for~the conveyor belt suggests a 

possibility of serious injury if someone were working on the equipment when 

the control switches were energized. But since respondent offered evidence 

of an alternative warning system in that each man's name was called before 

the system was turned on, I find the seriousness of this violation to be 

somewhat mitigated. Additionally, although the inspector claimed to.have 

seen as many as four people a~ound the belt at a given time, respondent's 

witness testified that there were guards on the belt which decreased the 

probability of harm. I conclude that this violation was nonserious. 

I find that the absence of a sign warning of the danger at the major 

electrical facility to be a nonserious violation. As noted by the inspector, 

electrical wires entering the building were visible from the exterior of the 

building. Host employees would be aware of the power contained in the 

building. Moreover, although the inspector observed children playing in 

the area outside the tipple grounds, testimony revealed that it was unlikely 

that they would be found in or around the facility. The electrical building 

was locked when the tipple was closed and employees had been instructed to 
keep out all children and visitors. Therefore, the probability of an injury 

due to electrical shock was not great. 

I find that the absence of a fire extinguisher in or near the permanent 

electrical installation was serious. I agree with petitioner's contention 

that there was a likelihood of injury to one or more persons if there were a 

sudden fire. Mitigating the seriousness of this violation is the evidence of 

three fire extinguishers which were usually located near the building. The 

probability of a fire is reduced, thereby lessening the degree of gravity. 

Negligence 

In evaluating the degree of negligence on the part of the operator, I 

have carefully considered the effect of the preoperation inspections conducted in February and May of 1980. Inspector Aslinger admitted that he had 

been instructed to give a list of everything required for compliance prior 

to the time the tipple went into operation. Mr. Hastings confirmed that this 

request had been made. Electrical inspector McDaniel's testimony also indicates that the operator attempted to comply with all safety requirements, 

and he stated that he had been requested by Mr. Tankersley to make a courtesy 

inspection in May of 1980. He could not recall whether he mentioned the need 

for either signs or fire extinguishers. While Mr. McDaniel claimed that his 

primary purpose was to check the electrical facilities, it seems reasonable 

that he should have warned Mr. Tankersley of the need for signs indicating 

a potential electrical danger or the need for a fire extinguisher where a 

fire hazard existed. 

Although an operator is presumed to know the law, I find that the operator reasonably relied on the inspector's prepared list and Mr. McDaniel's 

courtesy inspection, and that the respondent was attempting to comply with 

the law in that he requested these inspections and specifically asked for a 

list. 

Weighing against a finding of no negligence based on reasonable reliance 

is the fact that this operator had owned another tipple for some time. Inspect or Aslinger testified that Mr. Tankersley should have been aware of the fire 

extinguisher requirement since he issued a citation for the same violation at 

his other tipple about 2 to 3 years earlier. Therefore, upon balancing the 

operator's past experience with his reasonable reliance on the courtesy 

inspections~ I find a low degree of negligence on the part of the respondent, 

but conclude that they all resulted from ordinary negligence in that respondent failed to exercise reasonable care to prevent the cited conditions. 

History of Prior Violations 

The parties stipulated that this was a new operation and the operator 

had no history of prior violations, and I have considered this fact in 

assessing the civil penalties in this case. 

1287 
Size of Business and Effect of Penalties on Respondent's Ability to Remain 

in Business 

The parties stipulated that the respondent is a small operator and that 

any civil penalties imposed will not adversely affect respondent's ability to 

remain in business. I adopt this as my finding on this·issue. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions, I find that the 

following penalties proposed by the petitioner are reasonable and appropriate, 

and I adopt them as the civil penalties assessed by me as follows: 

Citation No. 

985423 

985424 

985425 

Date 

6/12/80 

6/12/80 

6/12/80 

30 C.F.R. Section 

77.1607(bb) 

77 .511 

77.1109(d) 

ORDER 

Penalty 

$30 

14 

52 

Respondent is ORDERED to pay civil penalties in the amount of $96 for 

the citations which have been affirmed in this case and payment is to be 

made to MSHA within thirty (30) days of the date of this decision and order. 

Upon receipt of payment, this matter is DISMISSED. 

Distribution: 

//~"'71/ -·"" &' ~ "!-~-- ~ ;{;eorg~A~ Koutr s 

Administrative Law Judge 

Carole H. Fernandez, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, Nashville, TN 37203 (Certified Mail) 

N. F. Tankersley, United Minerals, P.O. Box 525, Crossville, TN 38555 

(Certified Mail) 

1288 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYl.INE, 10th FLOOR 

5203 LEESBURG PIKE 

FAL:LS CHURCH, VIRGINIA 22041 HAY 15 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 80~121 

A/O No. Ol-00322-03044F 

v. 

Maxine Mine 

ALABAMA BY-PRODUCTS CORP., 

Respondent 

DECISION 

Appearances: Murray A. Battles, Esq., Qffice of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, for 

Petitioner, MSHA; 

Before: 

H. Thomas Wells, Jr., Esq., Cabaniss, Johnston, Gardner, 

Dumas and O'Neal, Birmingham, Alabama, for Respondent, 

Alabama By-Products Corporation. 

Judge Merlin 

This case is a petition for the assessment of a civil penalty filed 

by the Government against Alabama By-Products Corporation. A hearing 

was held on April 14, 1981. 

At the hearing, the parties agreed to the following stipulation~ 

(Tr. 4-5): 

(1) The operator is the owner and operator of the subject 

mine. 

(2) The operator and the mine are subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977. 

(3) I have jurisdiction over this case. 

(4) The inspector who issued the subject citation was a 

duly authorized representative of the Secretary. 

(5) A true and correct copy of the subject citation was 

served upon the operator. 

(6) The alleged violation was abated in good faith. 

(7) The imposition of a penalty will not affect the operator's 

ability to continue in business. 

128B 
(8) The operator's history of previous violations is average. 

(9) Witnesses who testify are accepted generally as experts 

in coal mine health and safety. 

At the hearing, documentary exhibits were received and witnesses 

testified on behalf of MSHA and the operator (Tr. 9-165). At the 

conclusion of the taking of evidence, the parties waived the filing 

of written briefs and agreed to make oral argument and have a decision 

rendered from the bench (Tr. 165). A decision was rendered from the 

bench setting forth findings, conclusions, and determinations with 

respect to the alleged violation (Tr. 183-187). 

BENCH DECISION 

This case is a petition for the assessment of a civil penalty 

for an alleged violation of 30 C.F.R. 75.202, which provides in 

pertinent part as follows: "Loose roof and overhanging or loose 

faces and ribs shall be taken down or supported." 

The essential facts are not in dispute. They are set forth 

in the MSHA Report of Investigation admitted into the record as 

Government Exhibit No. 2. The operator was engaged in retreat 

mining. The roof control plan and the pillar control plan were 

being complied with. The pillar being mined out was at the 

intersection of a "brushed" entry, which was 6-1/2 feet to 8 feet 

high and of a crosscut, which was low coal of about 3-1/2 feet. 

After the third cut had been started in the pillar, the ventilation man sounded an area to the right outby side of the continuous 

mining machine whereupon a piece of rock fell from that area on 

the cable of the continuous mining machine, knocking out the 

power from the machine (see the drawing in Government Exhibit 

No. 2), The operator then began removal of the fallen material. 

At the hearing today, the parties have stipulated that in 

addition to the facts set forth in the Report of Investigation, 

the continuous miner operator after the first fall tested an 

area immediately inby and adjacent thereto and that this second 

area was sound. The second area was rib rock, which had a pronounced curvature. It was part rib, part roof, and part corner. 

However, shortly afterwards, this second area of rock also fell, 

killing the section electrician, who was standing beneath it. 

It is undisputed that the section foreman told the electrician 

and the other men not to go on that side of the continuous mining 

machine and that in so doing the electrician disobeyed orders 

which he had received only ITloments before. 

MSHA's allegation of a violation is predicated upon the 

assertion that under the mandatory standard, the area of the 

second rock fall should have been taken down or supported. 
Since this area had just been tested and found sound, the Solicitor 

has not contended at the hearing today that this rib rock was 

loose, although previously his answer to one of the operator's 

written interrogatories appears to be that the roof fell because 

it was loose. The Solicitor has main~ained throughout that the 

area was overhanging and that therefore, under the mandatory 

standard, it should have been taken down or supported. 

For present purposes, I assume that the rock rib is within 

the definition of the mandatory standard. The principle issue 

is whether under the circumstances presented this area wa$ required 

to be taken down or supported in accordance with the mandatory 

standard. The section foreman's testimony that before the second 

area fell the operator tried to pry it down but was unsuccessful 

is uncontradicted and I accept it. MSHA's mining engineer testified that timbers could have been set under this rib rock. The 

operator's section foreman testified that he considered timbering 

and discussed it with the pin man. However, according to the 

section foreman, because of the curvature of the arch, timbers 

could not be set straight and therefore, would not serve as 

support. Moreover, the section foreman stated that if the area 

fell, the timbers themselves would create an additional hazard 

by throwing the rock even further with the timbers also being 

thrown. The section foreman 1 s testimony was corr.oborated by 

that of the pin man. After much consideration of the matter, 

I accept the operator's evidence regarding timbering. 

The section foreman also testified that he consulted with 

the pin man about roof bolting and that this, too, was not feasible 

because the bolter would be exposed under roof without canopy 

protection due to the curvature. I also accept this testimony. 

Finally, the possibility was discussed that the rib rock 

could have been shot down. Both the section foreman and MSHA's 

engineer agreed that this approach created the danger that a great 

deal of rock, indeed much more than was intended, might come down. 

Also, the hole for such a shot would have to be drilled by an 

individual standing on the continuous mining machine and the 

powder would have to be put in the hole by an individual either 

standing on the machine or standing in an unprotected location. 

In each of the foregoing instances, the proposed solution 

present~ hazards equal to if not greater than those presented 

by the original condition. I conclude that 75.202 requires that 

loose roof and overhanging or loose faces and ribs be taken down 

or supported, where the taking down or support would not create 

greater hazards to life and limb than already exist. Here the 

risks presented by the proposed solutions are higher than those 

presented by the situation itself. The cure cannot be worse than 

the illness. Accordingly, I cannot find that a violation exists. 
This is of course, not an easy case. I recognize that a life 

was lost. However, I cannot interpret the subject mandatory standard 

to impose more dangers to life and limb than would exist without 

it. I cannot interpret this mandatory standard to require the 

operator to do things which would jeopardize even more lives than 

the one that was lost. It may be that in view of the situation 

presented, the operator should have removed all personnel from the 

section forthwith. But this consideration does not fall within the 

stated mandatory standard which is all that is before me. 

The petition is DISMISSED. 

ORDER 

The foregoing bench decision is hereb;.f-'AFFIRMED. 

The petition to assess a civil penalty in the above-captioned 

proceeding is DISMISSED. 

Paul ~1erlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Murray A. Battles, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1929 9th Ave. South, Birmingham, AL 35256 (Certified 

Mail) 

H. Thomas Wells, Jr., Esq., Cabaniss, Johnston, Gardner, Dumas & 

O'Neal, 1900 First Ntl. Southern Natural Bldg., Birmingham, AL 

35203 (Certified Mail) 

1292 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 26 1981 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 80-336-M 

Petitioner A.C. No. 11-01599-05005 

v. 

OZARK-MAHONING COMPANY, 

Docket No. LAKE 80-337-M 

A.C. No. 11-01599-050061 

Appearances: 

Before: 

Respondent 

Barnett Mine 

DECISION 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department 

of Labor, Chicago, Illinois, for Petitioner; 

M. L. Hahn, Safety and Industrial Relations Director, and 

Victor Evans, Superintendent of Mining, Ozark-Mahoning Company, 

Rosiclare, Illinois, for Respondent. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

These proceedings were filed by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA) under section llO(i) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C.A. § 820(a), to assess civil 

. penalties against Ozark-Mahoning Company for violations of mandatory standards. Upon completion of prehearing requirements, a hearing was held in 

Evansville, Indiana on February 25, 1981. MSHA Inspector Dennis Haeuber, 

George W. Winters, and Louis English testified on behalf of MSHA. Frank 

Golden, Kenneth Clanton, and Tom Dowling testified on behalf of OzarkMahoning. Both parties filed posthearing briefs. 

ISSUES 

Whether Ozark-Mahoning violated the Act or regulations as charged by 

MSHA and, if so, the amount of the civil penalties which should be assessed. 

APPLICABLE LAW 

30 C.F.R. § 57.4-69 provides as follows: "Mandatory. Approved mine 

rescue apparatus shall be properly maintained for immediate use. The 

equipment shall be tested at least once a month and records kept of the 

tests." 
30 C.F.R. § 57.15-5 provides as follows! "Mandatory. Safety belts 

and lines shall be worn when men work where there is danger of falling; a 

second person shall tend the lifeline when bins, tanks, or other dangerous 

areas are entered." 

Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the 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. 

STIPULATIONS 

The parties stipulated the following: 

1. The Federal Mine Safety and Health Review Commission has jurisdiction over this matter. 

2. Ozark-Mahoning is a subsidiary of Pennwalt Corporation. 

3. Ozark-Mahoning operates a mine called the Barnett Mine. 

4. The Barnett Mine is located two miles west of the junction of 

Routes 146 and 34 in Rosiclare, Pope County, Illinois. 

5. There are approximately fourteen (14) to seventeen (17) men employed 

at the Barnett Mine. 

6. The annual hours worked are 35,000. 

7. The parties have agreed that George Winters, an employee of OzarkMahoning, did suffer an accident on February 7, 1980, while working at the 

Barnett Mine. 

8. An investigation of this accident was made on February 13 and 14, 

1980, by Mine Safety and Health Administration Inspectors Jack Lester and 

Dennis Haeuber. 

9. Citation No. 366117 was issued at the time of the inspection. 

10. Barnett Mine is an underground mine. 

11. Flourspar is the product mined. 
12. Approximately ten (10) McCAA's were not operable at the Barnett 

Mine at the time the citation was written. 

MOTION TO APPROVE SETTLEMENT CONCERNING CITATION NO. 365457 

At the commencement of the hearing, the parties moved for an order 

approving a settlement concerning Citation No. 365457. That citation alleged 

the violation of 30 C.F.R. § 57.6-20(e) in that the metal door on the explosive's magazine was not electrically bonded to the existing ground rods. 

MSHA initially proposed a civil penalty in the amount of $26. The parties 

requested approval of a settlement of this violation in the amount of $15 

because the magazine was located in a remote area and if detonation were to 

occur, injury would have been improbable since no employees were exposed to 

injury. Considering the above statements and the criteria contained in 

section llO(i) of the Act, the motion to approve this settlement in the 

amount of $15 is granted. 

CITATION NO. 366115 

Citation No. 366115 was issued on February 14, 1980, to Ozark-Mahoning 

for violation of 30 C.F.R. § 57.4-69. The cit•tion alleged that records 

were not available to indicate any inspection or maintenance on the ten McCaa 

self-contained breathing apparatus kept at the mine and the last recorded 

inspection of the devices was in 1972. 

The evidence established that seven miners at the Barnett Mine were 

killed in 1971 due to exposure to hydrogen sulfide gas. The undisputed evidence established that at all times relevant to this proceeding, the Barnett 

Mine was affiliated with a central mine rescue station and the mine was not 

required to maintain its own rescue station. Ozark-Mahoning conceded that 

the apparatus in question was not maintained or tested as required by the 

regulation and that there were no records of any tests. 

MSHA asserts that because Ozark-Mahoning kept the mine rescue apparatus 

at its mine~ it was required to maintain and test them and keep records of 

the tests. MSHA further contends that the lack of maintenance could have 

resulted in the use of defective equipment in an emergency situation causing 

the death of miners at the work site. 

Ozark-Mahoning contends that since it was not required to maintain a 

mine rescue station at this mine, the storage of defective equipment does 

not violate the Act or regulation. It further claims that the mere presence 

of the defective equipment did not present any hazard to the miners because 

the defects in the equipment would be immediately evident to any trained 

person who attempted to use it and, hence, the equipment would not have been 

used. 

I have considered the evidence and arguments of the parties. Although 

Ozark-Mahoning was not required to have the mine rescue equipment at the 
Barnett Mine because of its affiliation with a central mine rescue station, 

the fact that it elected to keep the 10 McCaa self-contained breathing 

apparatus at the mine imposed upon it the duty to maintain and test the 

equipment as required by 30 C.F.R. § 57.4-69. I find this situation to be 

analogous to the law of negligence where although a person has no duty to 

act, if he does act, he may be liable for any affirmative acts which make 

the situation worse. See Prosser, Law of Torts, § 54 (3d ed. 1964). In the 

instant matter, MSHA correctly asserts that the mere presence of defective 

equipment may result in additional deaths or injuries if such equipment is 

used in an emergency. In an emergency, persons untrained in the use of this 

apparatus might attempt to use it. Moreover, a miner's attempt to use the 

defective equipment may delay notification to the central mine rescue station. 

Hence, where a mine operator is not required to maintain its own mine rescue 

station but chooses to keep mine rescue apparatus at its facility, such 

apparatus must be maintained and tested according to the requirements of 

30 C.F.R. § 57.4-69. Accordingly, I find. that Ozark-Mahoning's failure to 

maintain and test the 10 McCaa self-contained breathing apparatus violated 

30 C.F.R. § 57.4-69. 

CITATION NO. 366117 

Citation No. 366117 was issued on February 14, 1980, to Ozark-Mahoning 

for violation of 30 C.F.R. § 57.15-5. The ~itation alleged that a lost time 

accident occurred when a timberman fell 23 feet down an open manway and that 

no safety belt was provided. 

The undisputed evidence shows that George Winters, a timberman, suffered 

a broken leg and other injuries on February 7, 1980, as a result of a 23 foot 

fall through an open manway. Prior to the accident, Winters and two other 

miners where attempting to land a set of timber being hoisted. OzarkMahoning' s foreman, Kenneth Clanton, was present and operating the controls 

of the slusher. After the timber, which was approximately 17 feet long and 

weighed about 300 pounds, had been hoisted, Winters walked over to a point 

2 to 3 feet away from the uncovered 36 by 40 inch manway. The timber struck 

Winters in the and he fell through the open manway. Winters sustained 

serious injuries and has not returned to work. 

MSHA asserts that Ozark-Mahoning violated 30 C.F.R. § 57.15-5 in that 

the operator permitted a miner to work at approximately 2 to 3 feet away from 

a 36 by 40 inch hole where there was a danger of falling. While the regulation in issue requires the use of safety belts and lines when men work where 

there is a danger of falling, no such safety belts or safety lines were 

provided. 

Ozark-Mahoning contends that it did not violate the regulation because 

of the following: (1) Winters did not fall and there was no real danger 

of anyone falling; (2) the use of safety belts while timbering is not normal 

industry practice; (3) Winters placed himself in an unsafe position in violation of specific orders to the contrary; (4) MSHA cited the wrong regulation in the citation. 

1~9h 
The undisputed evidence establishes that, at the time of the accident, 

a miner was standing approximately 2 to 3 feet away from an open manway 

measuring 36 by 40 inches. There was a drop of 23 feet from the manway to 

the surf ace below. Timber was being hoisted through the manway by use of a 

slusher operated by the foreman. The foreman had an unobstructed view of 

the area. The timber swung and struck Winters causing .him to fall or be 

knocked into the manway. No safety belts or safety lines were provided by 

Ozark-Mahoning. 

The regulation requires the use of safety belts or safety lines "when 

men work where there is a danger of falling." The evidence establishes that 

there is a danger of falling when a person is working 2 to 3 feet from a 

36 by 40 inch opening and the surface is 23 feet below. Ozark-Mahoning's 

foreman and assistant mine foreman concluded that it was possible for anyone 

working 2 to 3 feet from such opening to loose his balance and fall through 

the opening. 

Whether Winters fell through the open manway or was struck by the timber 

and knocked into it is irrelevant to this proceeding. The fact is that he 

was working in close proximity to the opening and there was a real danger of 

falling. Although Foreman Clanton had an unobstructed view of the, area while 

operating the slusher, he took no action to remove Winters from the place 

where there was a danger of falling. Although Foreman Clanton contended that 

he told Winters to stay out of the way of the timber, Winters could not 

recall such an instruction. At the hearing, it was evident that Winters had 

a hearing problem and Foreman Clanton admitted that Winters had had trouble 

hearing directions on prior occasions. The ~vidence on behalf of OzarkMahoning fails to establish that Winters' actions prior to this occurrence 

were either an aberration or could not be prevented. 

Ozark-Mahoning contends that the use of safety belts or lines is not 

industry practice, would not have prevented Winters' injuries, and would be 

impracticable. Suffice it to say that safety belts or lines would not be 

required in timbering if all miners were positioned so that they were not in 

danger of falling. However, where, as here, a miner is in a position where 

he is in danger of falling, such a device must be furnished. The evidence 

establishes that Ozark-Mahoning violated 30 C.F.R. § 57.15-5 as alleged by 

MSHA. While Ozark-Mahoning may also have been in violation of 30 C.F.R. 

§ 57.16-9, which provides that men shall stay clear of suspended loads~ it is 

irrelevant to this proceeding since no violation of that standard was charged 

by MSHA. 

ASSESSMENT OF CIVIL PENALTIES 

In asessing a civil penalty, the six criteria set forth in section 

llO(i) of the Act shall be considered. As pertinent here, Ozark-Mahoning's 

prior history of 14 violations in the previous 2 years is noted. The 

assessment of civil penalties herein will not affect the operator's ability 

to continue in business. 

1297 
CITATION NO. 366115 

' Ozark-Mahoning did not abate the violation cited within the time 

allowed. Subsequently, an order of withdrawal was issued to have the 

apparatus removed from the mine. 

In assessing the negligence of Ozark-Mahoning Company, it is also noted 

that on May 19, 1978, Ozark-Mahoning was cited for a violation of the 

identical regulation as established in Citation No. 366115 and paid a $72 

civil penalty. Hence, Ozark-Mahoning knew or should have known of its duty 

to maintain and test mine rescue apparatus and record those tests. I conclude that Ozark-Mahoning is chargeable with ordinary negligence. 

As noted above, Ozark-Mahoning was not required to have mine rescue 

apparatus at this mine because it was affiliated with a central mine rescue 

station. However, the fact that it had such equipment in defective condition 

could compound the hazard in the following ways: (1) The McCaas would be 

used in an emergency with possibly fatal results; and (2) false reliance upon 

the existence of the McCaas at the mine site might delay notification of the 

central mine rescue station. I conclude that the gravity of this violation 

is serious. 

Based upon all of the evidence of record and the criteria set forth in 

section llO(i) of the Act, I conclude that a civil penalty of $400 should be 

imposed for the violation found to have occurred. 

CITATION NO. 366117 

Ozark-Mahoning demonstrated good faith compliance after notification of 

the violation. 

The accident involving George Winters occured in the presence of OzarkMahoning' s foreman, Kenneth Clanton. Foreman Clanton saw Winters move to a 

position in close proximity to the open manway and took no action to remove 

Winters from the position where he was in danger of falling or to supply 

Winters with a safety belt or line. Thus, Ozark-Mahoning is chargeable with 

ordinary negligence in connection with this citation. 

While the potential injury arising out of a fall is very serious, the 

likelihood of this occurring is lessened by the fact that men do not 

ordinarily work where they are exposed to the danger of falling. The manway 

is usually covered. Here, it was open for the purpose of hoisting timber. 

Moreover, even if Winters did not hear the instruction of his foreman, he 

should have been aware of the existence of the open manway when he entered 

the area. No other miner was exposed to this hazard. Considering all of the 

above factors, I conclude that the gravity of this violation was serious. 

Based upon all the evidence of record and the criteria set forth in 

section llO(i) of the Act, I conclude that a civil penalty of $1,250 should 

be imposed for the violation found to have occurred. 
ORDER 

WHEREFORE IT IS ORDERED that Respondent Ozark-Mahoning pay civil penalties within 30 d·ays for the violations as follows: 

Citation No. 

365457 

366115 

366117 

Regulation 

30 C.F.R. § 57.6-20(e) 

30 C.F.R. § 57.4-69 

30 C.F.R. § 57.15-5 

Civil Penalty 

$ 15.00 

$ 400.00 

$1,250.00 

Distribution Certified Mail: 

-~• A. Laurens~Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 

230 South Dearborn St., Chicago, IL 60604 

M. L. Hahn and Victor Evans, Ozark-Mahoning Company, Rosiclare, 

IL 62982 

129H 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

ASARCO, INC. , 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Contest of Citations 

Docket No. SE 80-125-RM 

Citation No. 108670; 7/24/80 

Docket No. SE 80-126-RM 

Citation No. 108671; 7/24/80 

New Market Mine Unit 

DECISIONS 

Appearances: William 0. Hart, Esquire, New York, New York, for the 

Contestant; Leo J. McGinn, Attorney, U.S. Department of 

Labor, Arlington, Virginia, for the Respondent. 

Before: Judge Koutras 

Statement of the Case 

These proceedings concern two consolidated contests filed by the 

contestant pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977, challenging two section 104(a) citations served 

on the contestant by an MSHA mine inspector on July 24, 1980, citing 

the contestant for two alleged violations of the mandatory noise standards 

set forth in 30 CFR 57,5-SO(b). Contestant denied that it exceeded 

the required noise level standards in question and asserted that 

assuming that the cited noise levels exceeded the standards it nonetheless 

denies that the citations were "significant and substantial", denies 

that feasible engineering or administrative controls exist to reduce 

the employee exposure to noise, and contests the length of time fixed 

by the inspector for abatement of the citations. 

Respondent MSHA filed a timely answer to the contests and a hearing 

was convened in Knoxville, Tennessee on March 11, 1981, and the parties 

appeared and participated therein. Post-hearing briefs were filed by 

the parties and the arguments therein have been fully considered by me 

in the course of these decisions. 

Issues 

The issues presented in these proceedings include the following: 

(1) whether the conditions or practices cited by the inspector on the 

face of the citations constituted violations of the cited mandatory 
standard; (2) whether feasible engineering or administrative controls 

existed for the abatement of the asserted noise exposure levels described 

in the citations for the abatement of the citations; (3) whether the 

alleged violations were "significant and substantial" violations within 

the meaning of the Act; and (4) whether the citations were properly 

issued in accordance with the Act. 

Applicable Statutory and Regulatory Provis~ons 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

effective March 9, 1978, 30 U.S.C. 801 et ~· 

2. Mandatory standard 30 CFR 57.5-50, provides as follows: 

(a) No employee shall be 

be permitted an exposure to noise in excess of 

that specified in the table below. Noise level 

measurements shall be made using a sound level 

meter meeting specifications for type 2 meters 

contained in American National Standards 

Institute (ANSI) Standard SL 4-1971. "General 

Purpose Sound Level Meters," approved April 27, 

1971, which is hereby incorporated by reference 

and made a part hereof, or by a dosimeter with 

similar accuracy. This publication may be ob~ 

tained from the American National Standards Institute, 

Inc., 1430 Broadway, New York, New York 10018, or 

may be examined in any Metal and Nonmetal Mine 

Health and Safety District or Subdistrict Office 

of the Mine Safety and Health Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, 

hours of exposure 

8. (' ,• I> 

6. . 

4. 

3. • 

2o o o o o <> o o " <> 

1-1/2 .•.••••• 

1. . •. 

1/2. • 

1/ 4 or less .. 

Sound level 

dBA, slow 

response 

90 

92 

95 

97 

100 

102 

105 

110 

115 

No exposure shall exceed 115 dBA. Impact or 

impulsive noises shall not exceed 140 dB, peak 

sound pressure level. 
NOTE. When the daily exposure is composed 

of two or more periods of noise exposure at 

different levels, their combined effect shall be 

considered rather than the individual effect of 

each. 

If the sum 

exceeds unity, then the mixed expo.sure shall be 

considered to exceed the permissible exposure 

Cn indicates the total time of exposure at a 

specified noise level, and Tn indicates the total 

time of exposure permitted at that level. 

Interpolation between tabulated values may be 

determined by the following formula: 

log T = 6.322 - 0.0602 SL 

Where T is the time in hours and SL is the 

sould level in dBA. 

(b) When employees' exposure exceeds that 

listed in the above table, feasible administrative or engineering controls shall be utilized. 

If such controls fail to reduce exposure to 

within permissible levels, personal protection 

equipment shall be provided and used to reduce 

sound levels to within the levels of the table. 

Discussion 

Both of the citations in this proceeding were issued pursuant to 

section 104(a:) of the Act on July 24, 1980, by MSHA Inspector Thurman 

E, Worth, and the conditions or practices which Mr. Worth believed 

were in violation of mandatory standard 30 CFR 57.5-50(b), are described 

on the face of the citations as follows: 

Citation No. 108670 (Docket SE 80-125-RM) 

The full-shift exposure to mixed noise levels of the 

secondary crusher operator exceeded unity (100%) by 

2.46 times (246%) as measured with a dosimeter. This 

is equivalent to an 8-hour exposure to 96.5 dba. Personnel (sic) hearing protection was being worn. 

Recognized engineering noise controls for secondary 

crusher such as those listed in the attached document 

"Engineering Noise Controls Guidelines for Metal and 

Nonmetal Mine Inspectors," or other industry known 

controls were not being used and had not been tried by 

the mine operator. 

130~ 
Citation No. 108671 (Docket SE 80-126-RM) 

The full-shift exposure to mixed noise levels of the 

Ball Mill.operator exceeded unity (100%) by 2.01 times 

{201%) as measured with a dosimeter. This is equivalent 

to an 8-hour exposure to 95 dba. Personal hearing 

protection was being worn. Recognized engineeri~g noise 

controls for Ball Mills such as those listed in the 

attached document "Engineering Noise Controls Guidelines 

for Metal and Nonmetal Mine Inspectors," or other 

industry known controls were not being used and had not 

been tried by the mine operator. 

MSHA's Testimony and Evidence ~ Docket No. SE 125-RM 

MSHA Inspector Thurmond E. Worth, testified that he had over 16 

years experience in the mining industry before joining MSHA in 1976, 

including employment with ASARCO. He is currently employed as a health 

inspector and stated that he was familiar with the mill in question, 

and had visited in on one occasion prior to his inspection of July 24, 1980. 

He described the building where the alleged noise violations took place 

as a metal building built on a concrete floor, and he approximated the 

dimensions as 80 feet long, 40 feet wide, and some 25 to 30 feet high. 

The interior walls and ceiling are of metal construction. The structure 

houses a primary screen, a secondary screen, three cone crushers, 

and belt conveyors. Stone which is mined ,from an underground mine is 

processed in the building after being transported from a surge pile by 

conveyor belts into the crusher where it is reduced to smaller particles, 

processed through a secondary screen and there stored in bins according 

to product size. The building consists of three levels, and the source 

of the noise in the building is from the primary and secondary screens, 

as well as from the stone itself as it is transported and processed 

through the various chutes (Tr. 8-13). 

Mr. Worth confirmed that he took his noise readings with instruments 

in the normal fashion and thatthe results indicated DBA readings of 96.5. 

The instrument readings were taken in the secondary crusher operator's 

work area, and at the specific location where he performs the greater 

part of his work. He confirmed that it was essential to know where an 

operator is located during the day and what his work duties are in order 

to relate to the test results. Although other individuals may travel 

through the building, the operator is essentially alone in the building 

during the course of the work day and he is assighed there for his entire 

eight-hour work shift. 

Mr. Worth stated that based on his observations on the day he issued 

the citation, the operator's duties entailed checking the primary screen 

and crushers to insure that they are operating properly, insuring that 

the belts are functioning properly, and monitoring certain amp_guages to 
insure that certain electrical motors are not overloaded. The monitoring 

of the guages is a continual process and the operator is positioned some 

ten feet away from the primary screen when this is done. The remaining 

equipment checks are conducted periodically while the operator makes his 

equipment inspection rounds,. and while he is in transit to check the silos 

to insure that they are not full. He described the manner in which these 

inspections are conducted visually by the operator while walking around 

the various equipment locations inside the buiiding a~ well as outside 

where several conveyor belts feeding the stone from the surge pile are 

located. He estimated that it would take an operator approximately 

20 minutes to perform one complete inspection round of all of the equipment, 

and upon completion of this round the operator would return and position 

himself on a "grease barrel" from where he would continue to monitor 

certain amp guages located approximately five feet from his seated 

position on the barrel. Mr. Worth estimated that the operator would 

remain at this location for approximately 45 minutes before beginning 

another inspection tour, and under normal operating conditions and absent 

any problems, the entire process would be repeated again every hour during 

the shift. In summary, Mr. Worth estimqted that the operator would be 

walking around for approximately 20 minutes during any hour observing 

the equipment, and would remain by the barrel observing guages for the 

remaining approximate 40 minutes of any hour (Tr. 13-19). 

Mr. Worth testified that it was his opinion that feasible administrative or engineering controls could be implemented to reduce the noise 

levels and bring the building into question into compliance with the 

cited noise standard, andhe defined the term "feasible" as anything which 

is "reasonably possible" (Tr. 19). He. believed that the most obvious 

option available to mine management would be the installation of a 

soundproof booth which could be constructed from two-by-four's and plywood, 

and insulated inside with accoustical tile insulation. He indicated 

that he made these suggestions to mine management. The purpose of the 

booth would be to house the operator while he is at the location by the 

barrel monitoring the amp guages, and he could monitor the guages by 

simply looking out of a window enclosure from inside the booth. Another 

option would be to place the guages inside the booth, and he believed 

that the operator would still be able to observe the bigger part of his 

operation from inside the booth and that his visibility would be the 

same as if he were sitting on the barrel (Tr. 20-22). 

,Mr. Worth expressed his opinion that installing a booth and requiring 

the operator to stay in it while he is monitoring the amp guages would 

not in any way irhibit the performance of his job. He also expressed 

an 09inion that placing the operator in a booth for approximately 40 

minutes of each working shift hour would result in a reduction of his 

exposure to noise below 90 dba, and in support of his opinion testified 

as follows (Tr. 23-24): 

Q. Did you perform any calculations to arrive at 

that, or what would be the basis on which you would 

testify to that? 

A. The time span. 
Q. The time span? 

A. The time span inside the booth. He can be exposed to 

95 DBA for four hours. All right, that is half a shift. He 

could spend, say, six hours in the booth, then that would cut 

his DBA reading down to below 90, so he would be in compliance. 

Q. Now, is it your opinion that a soundboo~h, then, would 

work in this circumstance? 

A. Yes, sir. 

Q. Both from a health standpoint, and from a standpoint 

of his being able to achieve his job? 

A. Yes, sir. 

Q. Let me ask you this 

JUDGE KOUTRAS: Mr. McGinn, he hasn't finished. 

THE WITNESS: I've had experience with a cement 

plant that had almost identical equipment, and their 

operator was over exposed, and they put in a soundproof booth. His exposure read 96 DBA. They put him 

in a booth, and now his DBA is less than 90. 

BY MR. MCGINN: 

Q. Was this approximately the same type situation 

that we have here? 

A. Approximately, yes. 

And at pages 25.-26: 

Q. So, it 1 s your opinion, then, that the use of 

soundbooths in this instance would reduce the DBA under 

the standard, is that right? 

A. Yes, sir. 

Q. Okay, now, you recommended the soundbooths, right? 

A. Yes, sir. 

Q. Is that -- was that based upon -- what was that 

opinion based upon? 

A. Past experience. 
With respect to the feasibility of installing the type of soundproof booth that he reconunended, Mr. Worth's testimony is support of 

his conclusion that the installation of the type of soundproof booth 

recommended by him is feasible is as follows (Tr. 24-25): 

Q. Now, as to the matter of soundbooths being feasible, 

you have experience in inspecting other plants of the same 

type or similar type, is that correct? 

A. Yes. 

Q. For instance, what types of other plants do you 

inspect which would be essentially the same activity 

and same physical setup? 

A. I have a cement plant. They don't have the floatation 

operation that ASARCO does, but essentially everything else 

is the same. 

Q. Now, and you're aware of other plants of the 

industry -- do you have any knowledge of other plants throughout the industry which are faced with approximately the same 

situation, as far as noise goes? Are you aware of any other --

is this industry wide concern? 

A. Not of floatation plants and this type thing, but 

our quarries have crushers, and screen houses, and they put 

their men in booths and have no problem with it whatsoever. 

Q. Now, would it be your opinion that this soundbooth 

that we've been talking about, is a highly unusual or a fairly 

normal practice throughout the industry in combating excessive 

noise? 

A. It's a normal practice. 

Q. Have you seen soundbooths installed in other plants? 

A. Yes. 

Q. Could you name a few for us? 

A. American Limestone has booths for their crusher operators. 

General•Portland Cement has booths for their ball mills and rod 

mill operators. Vulcan Materials have booths for their crusher 

people. Nellie and Haden have booths for their crusher people. 

Nalley and Gibson, they have crusher booths for their operators. 

Adams Stone, Jenkins, Kentucky, they have booths for their 

operators. • 

130fi 
Q. Are all these operations within this district 

or sub-district? 

A. Yes, sir. 

Q. Do you know -- are these readily available, these 

soundbooths, which you described? 

A. You can buy them, or the easiest way would be to 

build one. They're not that expensive to build. 

Q. Are they commercially available, is what I really 

mean, for the industry? Are there companies which produce 

accoustical soundbooths of this type? 

A. Yes, sir, they are. 

Mr. Worth testified that the costs for sound proof booths range 

from $300 to $4,000, depending on size and that it can be constructed 

as previously described by him. As for alternative means of reducing 

the noise levels, he stated "There's all kinds of insulating routes 

they can go in (sic) they want to", but he opted to recommend a booth 

because he believed it would be the easiest and cheapest method of achieving 

compliance (Tr. 26). 

In response to my questions as to the procedures he used for testing 

the individual operator's noise exposure, Mr. Worth explained as follows 

(Tr. 29-33): 

Q. How did you arrive at the equivalent -- you stated 

in your citation that this is an equivalent to an eight-hour 

exposure. That leads me to believe that someone could be 

tested for under eight hours and with a computation, you come 

up with an eight-hour equivalent. 

A. Yes, sir. 

Q. What is that? 

A. We take a dosemeter reading and it reads out into 

a percentage and it's averaged out over eight hours. It 

records nothing less than 90 DBA. So at the end of eight hours, 

we have a chart that breaks the percentage down into an average 

of exposure for the eight-hour period. 

Q. All right, let me ask you this now: you said you hung 

the dosemeter on the operator. What specifically -- did you 

attach it to his body physically? 

A. Yes, sir, I put it in a pocket and the microphone 

on his shoulder. 

1307 
Q. And you left? 

A. Well, I was there on the property all day. I made 

periodic checks and sound level readings and this type thing. 

Q. All right, so this thing is attached to this individual 

and then, theoretically, he's supposed to wear it. for his entire 

shift? 

A. Right. 

Q. Which is an eight-hour shift? 

A. Yes, sir. 

Q. So I take it while he was doing what he has to do there 

as a crusher operator, monitoring, sitting on the barrel and 

wandering around the plant and doing his job, this piece of equipment is attached to his body? 

A. Yes, sir. 

Q. And you're doing whatever inspection work you had to 

do in the mine --

A. Yes, sir. 

Q. -- and you would come back periodically? 

A. Yes, sir. 

Q. Would you take readings? What would you do when you'd 

come back? 

Ao I'd check to see if he was having any problems wearing 

his equipment and take sound level readings. 

Q. What if this fellow takes it off and stashes it somewhere while you're gone and puts it back on again, how do you 

know that? 

A. Well, I wouldn't have any way of knowing it unless I 

him on a -- on a check as I come through. 

Q. Is there any way that -- are there any procedures for 

monitoring this device while you're off doing your other inspection 

duties? 

A. No, sir. 

t 'JO'· _.._ •) (\ 
Q. What would be the effect if this fellow took this 

device off and stashed it somewhere while you were gone, what 

would -- how would that affect it? What I'm trying to arrive at--

at what point in time during an eight-hour shift do you check the 

dosemeter for a noise reading and how do you arrive at 96.5 DBA 

out there? How many times do you look at this device over an 

eight-hour period? 

A. We only check it, read it out, at the end of a shift 

but we visually -- visibly check it to see that he still has it 

on and this type thing. 

Q. Okay. You also indicated that the noise sources were 

from the falling stone, screen and the crusher; is that correct? 

A. Yes, sir. 

Q. Are there any other sources of noise in this particular 

building where this individual is stationed? 

A. No, sir. 

Q. How do you determine the different noise levels from the 

stone and the crusher or from the screen or does it make any 

difference? What type of noise are you monitoring in that 

building? Are you monitoring the falling stone, the conveyor 

belts, the crushers or are you just monitoring all noises or a 

combination? 

A. We're monitoring all noise that he's exposed to. 

Q. All noise? 

A. Yes, sir. 

* * * * 

In response to further questions from MSHA's counsel, Mr. Worth 

stated that he had never before tested the crusher operator in question, 

and he indicated that he explained the purpose of the dosemeter to him. 

Mr. Worth could not recall whether the operator advised him that he had 

previously been tested and asked him no questions. The operator did 

not explain his duties to Mr. Worth, and Mr. Worth reiterated that his 

opinion as to what those duties are is "based on experience and his job 

classification" (Tr. 35). Mr. Worth indicated that the duties of a 

secondary crusher operator in a mill such as the one in question would 

be essentially the same for each day. In response to questions as to 

how often he would return during a normal sampling cycle on a shift, 

Mr. Worth stated (Tr'. 36-38): 

l~OH 
Q. Now, after you once put the measuring equipment on a man, 

do you return at different times furing the shift; is that correct? 

A. Yes, sir. 

Q. Approximately how often do you return during a normal 

sampling procedure? 

A. Usually we try to get back once an hour if possible. 

Q. Do you recall in this instance how often you got back? 

A. No, sir, I don't. 

Q. What do you do when you come back, for noise now? 

What did you do in this instance when you came back? 

A. I checked him to see that the microphone was still in 

the right place and he still had it on his person. 

Q. When you come back, do you also take sound level 

measurements? 

A. Yes, sir, I do. 

Q. What's the purpose of that? 

A. That's to check and be sure that I have the right 

exposure of percentages on my dosemeter whenever I read it out. 

It's to keep check on the dosemeter. 

arm's 

Q. How do you take your sound level readings? 

A. I just have a sound level meter and hold it out ·at 

and take a reading off of it every -- up to 

120 DBA 1 s. 

Q. Now, can you state specifically about how many times 

you came back to check on the, equipment during this shift? 

A. Not specifically, no, sir, I can 1 t. 

Q. Do you recall the different areas in which you met him 

to take your and to check your equipment? 

A. Yes, sir, I met him at -- in his work area which is 

where he sit and monitored the amp guages and then I saw him 

to the silos as I was coming over to the building to check on him 

during the day. I saw him out on the outside on a walkway 

going to the surge tunnel and his checks of his equipment during 

the day. 
Q. At the end of the sampling time, you remove the equipment 

from him; is that correct? 

A. Yes. 

Q. Did you have any conversation with him at that time? 

A. No, sir. I told him that I appreciated him wearing 

it for me. Thanked him. 

Q. Did he indicate there was anything abnormal in his work 

activities that day? 

A. No, sir, he didn't. 

Q. Again, the question really is about your estimation about 

the time involved in these various tasks. Again, you testified 

earlier that you estimated it.to be about 20 minutes per hour of 

him walking around and about 40 minutes of an hour sitting in one 

area stationary, checking and monitoring the electrical --

A. Yes, sir. 

Q. Do you still stand by that? 

A. I do. 

Q. Again, what is your basis for that time frame? 

A. Well, observing the job that he has to do. Barring trouble, 

he just physically walks around and checks the conveyor belts and 

then sits and monitors the amp guages. 

Q. So in your opinion, knowing his job classification, is the 

monitoring or the walking around inspection the more primary, 

more essential time of his tasks? 

A. Monitoring his amp guages to keep from burning up a 

50 hoursepower motor. 

Q. So would there be greater danger in his being away 

from the monitoring position than at other times or --

A. Oh, sure, sure, because you never know when a crusher 

is going to stop up or a motor is going to short out or what. 

Q. What does he do if such a situation should occur? 

A. He shuts the equipment down. 
Q. What is the purpose of shutting it down immediately? 

A. So it won't do further damage to the motor or crusher 

or the other equipment that's involved. 

On cross-examination, Mr. Worth conceded that he was not with the 

crusher operator during the entire eight hour shift for which he was 

tested, and the reason that he was not was that he had to make other 

inspection rounds through the mills. He stated that he was at the location in question "off and on, periodically, all day", and he determined 

that an inspection round by the crusher operator took approximately 20 

minutes through actual observation and he explained this by stating 

"I could observe him from my rounds going through the plant". He 

testified as follows in support of his conclusion concerning this 

issue (Tr. 27-28): 

Q. Is this from discussing it with the employee or 

your actual observation? 

A. Actual observation. 

Q. How long were you there at a given time? Were you there 

for an hour at any time? 

A. Oh, it would vary. I might be there 30 minutes. 

be there an hour, may be there two hours. 

Q. But you didn't conduct a time study or anything? 

in other words, it was just kind of hit and miss so far as 

the employee was doing? 

I may 

I mean, 

what 

A. I had a dosemeter on him which is run for eight hours. 

Q. Right, but as far as what the employee was doing as far 

as making rounds or sitting around, you're really speculating; 

are you not? 

A. Well, observing him and his work habits. That's what I 

observed. 

Q. But you werenit there for eight hours? 

A. No, but 

Q. I'm just saying you've kind of made a categorical statement 

that you think he made rounds for 25 minutes every hour and I was 

wondering how you concluded that if you were there and off at 

various times. 

A. Well, knowing the job, I estimated the time and -- and 

I feel it's a reasonable time. 
Q. You estimated it based on knowing the job. How do you 

know the job? 

A. I visibly observed what his job was as he went through 

his procedure. 

Q. But you were there and then off elsewhere at various 

times? 

A. Yes. 

Q~ So it was very much an estimate? 

A. Yes, sir. 

Mr. Worth testified further that he was aware of the fact that 

one of the mines mentioned by him as having sound booths installed, namely 

American Limestone, is a subsidiary of ASARCO (Tr. 29). He confirmed 

•that while he triesto go back to check on an operator once every hour 

during a testing cycle, he did not know whether he did that in this case 

and did not know whether he was present for an hour at any given time 

or precisely how long he would have been present since he did not time 

himself. His conclusions concerning the time spent by the crusher 

operator on various tasks are based on wh~t he believed to be his job 

tasks and through his personal observations, which he conceded were never 

even for an hour (Tr. 39). He further explained his position as follows 

(Tr. 39-41): 

Q. Well, I'm just wondering how you can come up with a 

conclusion that the man sits still for 40 minutes and walks 

for 20 minutes if you weren't there for even an hour at any 

given time or you don't even know if you were. How does one 

conclude that? 

A. Based on his job that he had to do. 

Q. And how do you know what his job is? 

A. Because I observed him doing it. 

Q. But never even for an hour at any given time as far 

as you know? 

A. No. 

Q. And it's your testimony that as far as you understand, 

his job of monitoring the guages is the most important aspect of 

his job? ' 

A. In my opinion, it would be. 

Q. And your opinion is based on what? 

1 ') 1' ..,\.. •) ,-< 
A. Experience. 

Q. Experience in a mill like this? 

A. No, ·I have no experience -- experience in mills. I 

have experience in inspecting in every operation that we have, 

their primary job is to monitor amp guages so they won't burn up 

overload their motors and burn them up. · 

Q. Do you know sitting where he does, do you know if he can 

see the ore bins? 

A. No, he can't see where they're pouring on. 

Q. Can he see the feeders under the surge pile? 

A. No, sir. 

Q. Can he see the conveyor belts on the east and the west 

side? 

A. He can see part of it, but he can't see all of it, no. 

Q. C. n he see the ore transfer chute on the east side 

of the buEding? 

A. I don't know. 

Docket No. SE 80-126-RM 

I_nspector Worth confirmed that he issued citation no. 108671, 

described the building where the Ball Mill operator was working, and 

described the procedures and equipment utilized in the processing of 

materials in the building. He stated that there is one operator on duty 

in the building, that he put the noise measuring device on him at 

7:11 a.m., and left to conduct additional inspections. He returned 

periodically during the day but could not recall how often. However, he 

indicated that he usually tries to get back once every hour. Mr. Worth 

stated that he took sound level readings, and on his return observed the 

operator at different places in the building such as the walking between 

the ball mills, taking samples at the location where the mills feed 

out the ground material, and standing next to a control panel. He stated 

that he was "not that familiar" with the duties and functions of the 

ball mill operator, but arrived at his conclusions concerning those 

duties by observing him taking samples and monitoring the amp guages from 

a seat or box which he sits on. However, Mr. Worth could not recall 

whether he ever observed the operator seated, and he was of the opinion 

that the operator can position himself in such a way as to facilitate 

the monitoring of the amp guages as well as keeping an eye on the feeder 
belt. As for the taking of the samples, Mr. Worth could not state how 

often this was done, but estimated that one sample an hour would be 

taken by the operator, and that this would take about five minutes, 

and he indicated that the operator would have no reason to go outside 

of the building (Tr. 43-50). 

Inspector Worth testified that he believed it was feasible to reduce 

the noise levels and that he recommended the installation of a soundbooth. Based on his understanding of the duties of the operator through 

his observations, he believed that the operator could perform his duties 

of checking and monitoring of the guages and the belts from inside a 

soundbooth, and that this would reduce his noise exposure to well below 

90 dba's. He also indicated that he recommended the use of a soundbooth 

to mine management, and was told that their employees could not work 

in booths. Mr. Worth also indicated that other mine operators have used 

soundbooths, that they were readily available and moderately inexpensive, 

and that they have been recommended to him during his training or in 

reading literature on the subject (Tr. 50-52). 

On cross-examination, Mr. Worth conceded that he was "not that familiar" 

with the duties of a ball mill operator, that he could not recall whether 

the operator was ever seated during his observations, and that his previous 

testimony that the operator took materials samples once every hour was 

an assumption on his part. He also conceded that he did not speak with 

the operator himself to determine what his duties were, and he (Worth) 

could not recall whether he was ever present observing the operator for 

as much as an hour at any one time, nor could he recall how often 

he returned from his other inspection rounds to actually observe the ball 

mill operator makes his rounds (Tr. 52-54). 

Inspector Worth concluded his direct testimony as follows (Tr. 54): 

Q. With all that lack of knowledge, you nevertheless 

concluded how often he could sit at that given seat and stay 

in a given place rather than move around and perform his job? 

A. No, I didnvt stay with him. 

Q. You really don 1 t know? 

A. No, sir, I don 1 t know. 

MR. HART: I have no further questions. 

JUDGE KOUTRAS: Do you have anything further, Mr. McGinn? 

MR. MCGINN: No. 

In response to questions from the bench, Inspector Worth testified 

that the operators in question were wearing Dupont dosemeters during his 
testing, and that the secondary crusher was wearing an EAR brand earplug, 

while the ball mill operator was wearing an ACU-FIT earplug. However, 

he stated that he had no way of knowing how effective these devices 

were in terms of reducing any existing noise levels (Tr. 55). He stated 

that the contestant has never tried any other industry known noise 

controls other than earplugs, that he did not discuss the use of booths 

with the two individual employee operators who were cited, and that 

they made no comments concerning the effectiveness of .the earplugs other 

than it was company policy that they be worn. He could not recall 

any complaints by the employees with respect to the use of the earplugs, 

and while he alluded to the fact that a mine operator was required to 

test its own employees for exposure to noise, he did not know how often 

this was done and stated "we really don't enforce it that heavy" (Tr. 56). 

He reiterated that the contestant's position was that its employees could 

not work in control booths (Tr. 57-58). 

Inspector Worth testified that there was no way to sample an employee 

wearing plugs to determine whether he was in compliance with the noise 

exposure levels while wearing the plugs. As long as a mine operator 

has done all that he could in terms. of administrative or engineering 

controls, he would not issue citations for noncompliance as long as the 

earplugs are worn (Tr. 61). 

James Gardy, MSHA Health Specialist, testified as to his background 

and experience in mining, and stated that his present duties are those 

of a health inspector in underground mines and the crushed stone industry. 

He stated that he was familiar with contestant's mining operation and 

that he has inspected similar mills and crushers. With regard to his 

familiarity with the job classifications of a secondary crusher operator 

and ball mill operator, .he stated that he was "vaguely familiar with 

those classifications" but "couldn't go into detail as to exactly what 

they do" (Tr. 66). Based on his experience and knowledge of operations 

similar to those of the contestant, Mr. Gardy was of the opinion that 

soundbooths are a feasible way for reducing the noise level dba's (Tr. 67). 

Booths may be constructed from inexpensive building materials and they 

are also available for purchase commercially throughout the industry. He 

believed that reductions in noise levels could be achieved below 90 

dba's if a person remained in a booth for just two hours out of an eight 

hour shift. The longer one remained in the booth, more significant 

reduction in noise levels would result, He later stated that "I'd 

have to run calculations, but I would say they would probably reduce it 

to 90·or below" (Tr. 69), 

Mr. Gardy testified that he has observed noise booths installed 

in a plant si~ilar to that of the contestant's and named several of those 

plants in Kentucky and Tennessee. However, he qualified his testimony 

in this regard as follows (Tr. 69): 

Now, I'm speaking about primary crusher operators 

where a guy is stationary. He doesn't have to move around 

too much. 
Q. So is it your testimony then that use of the sound 

control booth is your basic, primary -- in other words, is 

that what you would look at before you would look at anything 

else? 

A. Well, if the man was stationary. If he didn't move 

around a lot. If his one job is in this one area the biggest 

part of the day, that is usually the answer. 

Mr. Gardy was of the opinion that feasible controls are available 

to reduce noise levels, and as examples he referred to building barricades 

or enclosing the machinery. He also stated that it would depend on the 

particular situation and also stated "I'm not familiar with the one 

Mr. Worth testified about" (Tr. 70). He also believed that the use of 

earplugs is a temporary measure and that proper hearing conservation 

programs are the best methods at solving noise problems. Based on the 

testimony presented concerning the citations in question, he was of the 

opinion that the type of controls available would likely bring about 

compliance in these cases (Tr. 72). 

On cross-examination, Mr. Gardy testified that he was not aware 

of any mills such as those operated by the contestant that have sound booths 

installed, and he indicated as follows (Tr. 72): 

Q. You cited a number of companies that have installed 

similar to this and as I picked it up, most of them were 

stone type operations. Do you know of a single operation 

for lack of a better name, I'm talking about a metal type mill 

that has one of these things installed? 

A. No. 

Q. You don't know? 

A. I can't specify a single company thatvs got a mill 

like yours because I'm not familiar with your mill. I don't 

know exactly what you have out there, but I am familiar with 

crushers and conveyor belts and screens. 

And, at pages 74-75: 

Q, (By Mr. Hart) So basically, but you do not know 

of a metal type mill that's installed one of these; you're 

talking about a quarry type situation, is that correct? 

A. Quarries and the underground mines I've inspected out 

West, yes, all over. 

Q. You've never seen the mill we're discussing? 

1317 
A. No, sir, I haven't. 

Q. You testified just vaguely that there are other types 

of engineering controls such as barricades, enclosures, etcertera? 

A. Yes. 

Q. How could you testify to the feasibility of that in 

a mill you've never seen? I mean, you really don't know what 

A. Well, 

cu:i:tains, lead 

the employee. 

completely. 

I've seen other, other mills where they put 

shield curtains between the noise source and 

I've seen where they've enclosed the machinery 

Q. Aren't all mills different? 

A. To what extent? 

Q. I mean, can you just sit there and come up with 

general engineering types things and say it would solve the 

problem 

A. For noise, yes, sir. 

Q. and say it would apply? 

A. Yes, sir. 

Q. You can say that? 

A. yes, sir. 

Qo For noiseo Do you have an engineering degree? 

Ao No, sir, I don 1 to 

Q. You're not an industrial engineer? 

A. I'm not an expert, noo 

Q. You were talking about whether we had an audiometric 

program of sorts. Are you aware that we have an industrial 

hygiene department of 40 industrial hygienists in the company? 

Ao Here at the Knoxville operation? 

Q. In Salt Lake, but it operates for all --
A. No, sir, I didn't. 

Q. You don't know whether we have an audiogram department? 

A. No, sir, I do not. 

Mr. Gardy believed that with the use of a soundbooth, placing an 

individual in it for two hours during a shift would lower the dba exposure 

to 90 or below. However, he conceded that he had made no calculations 

to support this conclusion (Tr. 76). 

Contestant's Testimony and Evidence 

Samuel D. Lawrence, Assistant Mill Superintendent, testified that he 

is a graduate engineer with a degree in mineral process engineering from 

the Montana School of Mines, and that he has worked in various mills 

throughout the United States. His responsibilities at the mill in question 

include maintenance and metallurgical controls and he is faimilar with 

the job functions of the two mill operators who were cited by MSHA in 

these proceedings. In his opinion, they cannot perform their job in a 

soundbooth (Tr. 83-85). He described the duties of the secondary crusher 

operator, and they include the checking of meters, chute blockage or 

damage, damaged screens, extraneous materials in the product being 

processed, etc. In his view, if the operator were sitting in a soundbooth, by the time any damage or problem was detected, the system would 

have to be shut down for repairs. Mr. Lawrence believed that the operator 

has to be mobile in order to perform his functions because his job is 

one that requires him to be mo~ing the majority of his time to visually 

and physically inspect all of the machine components, namely, three 

crushers and two screens. In addition, the operator is also responsible 

for cleaning up any spillage each shift. The monitoring of the guages 

is critical during the start-up phase of the operation, but once the 

system is stablilized, a visual glance is all that is required, and the 

remaining time spent by the operator is the physical and visual checking 

of belts, motors, machinery, and oil levels. He also indicated that 

from the location of the seat where the operator may sit, he cannot 

observe the entire system, and is unable to check conveyor belts, worn 

idlers, or pulleys, nor can he check for required maintenance which may 

occur and which could be taken care of while the system is operational. 

The primary function of the crusher operator is to insure that the mill 

is functioning properly and that no major damage will occur. If it 

does, the mill will have to shut down and production is thereby interrupted. 

He believes the operator has to be constantly mobile in order to perform 

his job properly and effectively (Tr. 85-88). 

With to the duties of the ball mill operator, Hr. Lawrence 

testified that once the critical start-up is achieved, his primary 

function is to periodically, on an hourly basis, go through the mill 

and take samples of the materials being processed. He explained the 

sampling process and stated it cannot be done effectively with the 

operator enclosed in a booth. He also indicated that the operator must 

1319 
visually inspect the cyclone, take care of any minor problems which may 

be detected before they result in major items, and that he must also 

check motor bearings and grease them manually. These duties require 

constant mobility by the operator. He also stated that cyclone underflows 

and overflows cannot be visually observed from inside a booth, and they 

require visual monitoring, including the taking of cyclone samples at 

four or five locations. The sampling time for each sample takes about 

five minutes for each location, and possibly ten minutes to make a grind 

determination (Tr. 88-91). 

Mr. Lawrence testified that the contestant has attempted to control 

noise at one of its other mills, and that the mill is similar to the one 

in question in these proceedings. He stated that contestant has expended 

$135,000 at the Young Mill, and that this has resulted in reducing the 

noise levels one or two decibels. He conceded that it was possible that 

compliance could be achieved with the use of sound booths, but maintained 

that the operators could not perform their job tasks from such booth 

(Tr. 92). Mr. Lawrence stated further that the use of booths in at 

least one other plant was for the purpose of protecting the operator 

from the weather rather than for reduction of the noise exposure (Tr. 94). 

On cross-examination, Mr. Lawrence stated that it was his view 

that the operators in question were required to be in motion the majority 

of their work time in order to perform their job tasks properly. He also 

indicated that he has spent a complete hour shift with these individuals, 

and in his opinion they could not remain in the booth for as long as 

an hour each shift and still do their jobs properly. He reiterated the duties 

that he believed were required of the two operators in question, and 

indicated that he has explored the possibility of using rubber liners 

to reduce the noise levels, but found that they were very expensive and 

were short lived. (Tr. 95-102). In response to bench questions, Mr. Lawrence 

testified that since the time he has been employed at the mill 

no previous citations for exc,eeding the noise levels had ever been issued 

. 108). 

Ivan Campbell, testified that he is an electrical engineer and 

has a from the University of Colorado. His experience includes 

the installation and maintenance of both mechanical and electrical 

equipment, and that he is responsible for contestant's Tennessee mines. 

He stated that he was familiar with the citations which were issued in 

these cases and is familiar with the job duties of the cited operators. 

In his view the operators could not satisfactorily perform their jobs 

if were enclosed in booths for any ten to fifteen minutes each hour 

of their shifts. He explained the duties required of the operators in 

ion, and emphasized the fact that are required to be mobile 

and to walk around checking out the entire system. He detailed each 

of' the duties required by the in question, and expressed 

the opinion that they were required to be continually in motion or moving 

around to properly perform their job tasks (Tr. 111-117). Mr. Campbell 

alluded to the expenditure of $135,000 by the contestant in an effort 

by the contestant to reduce the noise levels, short of installing booths, 

but stated that he was not directly involved in the program (Tr. 117). 
Harold F. Thompson testified that he is a graduate geologist from 

the University of Colorado and that he has been involved in safety matters 

for the past 30 years. His job with the contestant concerns safety 

matters for the entire Tennessee Mines Division. He stated that he was 

familiar with the soundbooths utilized by American Limestone Company, 

one of the examples cited by the inspector, and he characterized the 

booths as "operator shacks" to protect the employees from the weather. 

He also stated that they were constructed from wood, operated with the 

doors open, and were not soundproof (Tr. 125). He also stated that the 

contestant has a hearing program which includes the use of earplugs 

as well as the use of audiometric technicians who examine employees for 

hearing problems. In addition, he referred to the fact that employees are 

given a choice of wearing three protective ear devices, and that annual 

noise surveys are made by the company, including the use of noise meters 

at various locations for the purpose of reducing noise exposure, all of 

which is paid for by the company. 

Mr. Thompson was of the opinion that it would require an employee 

to spend four hours in a soundbooth in order to reduce his noise exposure 

from 95.dba's to 90 dba's. He also indicated that since the existing 

attempts to reduce the noise levels at the Young Mill have not resulted 

in any significant changes they were not used at the New Market Mill 

(Tr. 128). 

On cross-examination, Mr. Thompson conceded that he was aware of 

the fact that the noise exposure for the operators in question were as 

stated in the citations, namely 96.5 and 95 dba's, and that is the reason 

they were required to wear personal ear protection devices (Tr. 128). 

He believed that compliance was being achieved through the use of these 

devices, and he did not believe that additional considerations are needed 

because it was his view that additional measures are not feasible (Tr. 130). 

He indicated that feasibility measures have been an on-going project 

for the past five years in attempts to find solutions at the mill in question. 

In his view, additional expenditures are not feasible because operators 

cannot function from a soundbooth (Tr. 131). He also alluded to the 

fact that the problems have been discussed among company management as well 

as with Inspector Worth, and that in his view feasible controls of noise 

are not available, except through the use of earplugs (Tr. 131-133). 

Mr. Thompson alluded to several specific methods considered for 

reducing noise, including enclosing the crusher from the rest of the 

building, use of rubber screens, moving the filter vacuum pump outside 

another building, insulating the walls of the building, relocating the 

flotation filter pump blower outside the building, and installing 

insulation barriers around the crushers (Tr. 134). 

Findings and Conclusions 

The contestant in these proceedings has been charged with two 

violations of the noise exposure requirements of mandatory standard 
30 CFR 57.5-50(b), for exceeding the noise exposure levels for two of 

its employees, namely, a secondary crusher operator and a ball mill 

operator. In addition to the charges that the dBA exposures exceeded 

those levels required to be maintained by the cited standard, the 

citations also charge that the contestant was not using, and had not tried 

to use, recognized engineering noise controls such as those listed in 

certain guidelines contained in an April 8, 1977, p~blication used 

by MSHA inspectors when evaluating noise violations in the metal and 

nonmetal mining industry, or other industry known controls. Under the 

circumstances, I believe it is clear that MSHA has the burden of proving 

the fact that the noise exposure levels cited by the inspector were as 

stated in the citations, as well as the burden of proving the fact that 

feasible engineering controls are available for application by the 

contestant at the mill sites in question so as to bring the two cited 

employee operators into compliance with the required noise standard. 

The so-called "recognized engineering noise controls" alluded to 

by the inspector on the face of the citations which he issued are 

incorporated in an MSHA document published April 8, 1977, entitled 

Engineering Noise Control Guidelines for Metal and Nonmetal Mine Inspectors, 

(exhibit ALJ-1), and pertinent introductory portions of that publication 

state as follows: 

These guidelines have been prepared for use by 

Mining Enforcement and Safety Administration (MESA) 

inspectors when evaluating violations in the 

metal and nonmetal mining industry. The engineering 

controls listed have been taken from actual cases and 

hence have been shown to be feasible and effective. 

It is important to note, however, that these controls 

must be considered on a case~by-case basis; not all 

may be feasible for a specific machine type. This 

consideration will require individual judgement by 

the MESA inspector. 

The mine operator must apply such noise controls as 

are considered feasible, in the judgement of the 

inspector, until noise levels are brought to within 

permissible limits. The controls listed can be 

applied in any order the mine operator chooses and 

alternative control methods may be acceptable, The 

inspector must judge whether or not a conscientious 

effort was made by the mine operator in applying 

engineering noise control methods. If in assessing 

a noise violation, a MESA inspector determines that 

additional assistance is necessary, the Noise Group 

at either Pittsburgh or Denver Technical Support 

Center should be contacted to evaluate the problem. 

1322 
If permissible limits of noise have not been obtained after all feasible control methods (including 

administrative controls) have been instituted, then 

adequate ear protection must continue to be used until 

new control techniques become feasible. 

(Emphasis supplied.) 

The guidelines list surface crushers, screens, and chutes at page 14, 

and the following methods of noise control are listed: 

1. Operator Booths 

a. Commercial. Operator booths can be purchased 

as prefab units from various manufacturers. 

Refer to attached "Buyer's Guide" from Sound 

as Vibration Magazine. 

b. Upgrading Existing Booths. Upgrading consists 

of adding acoustical material to interior roof 

and walls, sealing openings, repairing and 

sealing doors and windows, and isolation mounting. 

Refer to attached "Buyer's Guide" from Sound 

and Vibration Magazine. 

c. Fabricated. Operator booths can be constructed 

using common building materials, and should be 

acoustically treated as per "Upgrading." 

2. Rubber Screen Deckings. Materials are available from 

various manufacturers. 

3. Covered Screens. Dust control covers for screens may 

be upgraded to act as acoustical enclosures. 

4. Enclosing Crushers and Screens. Crushers and screens 

may be partially or totally enclosed. 

5. Chute Liners. Chutes can be lined at impact points 

with resilient material. These materials and information concerning their wear characteristics are available 

from various manufacturers or by contacting PTSC or DTSC. 

Estimated Costs and Noise Reductions 

1. Operator Booths. Properly designed and installed 

booths should result in noise levels at the operator's 

position of less than 90 dBA; costs for booths will 

range between $500 and $3,000. 

2. Rubber Screen Deckings and Chute Liners. Information as 

to cost, life expectancy, effects on production, etc. 

should be obtained from the manufacturer and should be 

evaluated on a case-by-case basis. 
The noise controls for ball mills are listed in the guidelines 

at page 19, and they are as follows: 

1. Operator Booths 

a. Commercial. Operator booths can be purchased 

as prefab units from various manufacturers. 

Refer to attached "Buyer's Guide" from Sound 

and Vibration Magazine. 

b. Upgrading Existing Booths. Upgrading consists 

of adding acoustical material to interior roof 

and walls, sealing openings, repairing and sealing 

doors and windows, and isolation mounting. Refer 

to attached "Buyer's Guide" from Sound and 

Vibration Magazine. 

c. Fabricated. Operator booths can be constructed 

using common building materials and should be 

acoustically treated as per "Upgrading." 

2. Rubber Liners. Rubber liners are commercially available 

from several manufacturers. Information as to life 

expectancy, effects on production, etc., should be obtained from the manufacturer and should be evaulated 

on a case-by-case basis. 

3. Enclosing Mills 

a. Full Enclosures. Full mill enclosures can be 

fabricated or purchased as prefab units. 

b. Partial Enclosures. Partial enclosures for the 

feed and discharge ends of mills can be fabricated 

using common building materials. 

Estimated Costs and Noise Reductions 

1. Operator Booths. Properly designed and installed 

booths should result in noise levels at the operator's 

position of less than 90 dBA; costs for booths will 

range between $500 and $3,000. 

2. Rubber Liners. Information as to cost can be obtained 

from the manufacturer. Noise reductions may range 

between 3 and 7 dBA. 

Included as a "Buyer's Guide", the guidelines contain a list of 

manufacturers ·and suppliers of sound barrier systems, including acoustical 

booths, and a selected bibliography of several noise control publications 

and references. 
The record adduced in these proceedings establishes the fact 

that the two cited mill operators were wearing personal ear protection 

devices. Further, it seems clear that Contestant does not dispute the 

fact that the noise levels measured by the inspector in these proceedings 

were above those permitted by the cited noise standard. Its defense 

is based on subsection (b) of section 56.5-50, which states: 

(b) When employees' exposure exceeds that listed 

in the above table, feasible administration or 

engineering controls shall be utilized. If such 

controls fail to reduce exposure to within 

permissible levels, personal protection equipment 

shall be provided and used to reduce sound levels 

to within the levels of the table. 

Contestant takes the position that it is not feasible to place 

the two mill operators in question in an acoustical sound booth because 

the nature of their job tasks is such as to require them to constantly 

move about the two buildings in which they are located so as to enable 

them to monitor, inspect, and service all of the machinery and equipment for which they are responsible. Contestant asserts that placing 

an operator in a soundbooth would not only restrict his mobility, but 

would impair his visibility and would inhibit his ready access to the 

equipment in the event of emergencies, and would unduly restrict his 

ability to visually observe the entire area over which he has responsibility. 

Further, contestant maintains that the mobility of the operators is 

most essential to a safe and productive operation, and that isolating 

the mill operators in a sound booth as suggested by MSHA would not only 

jeopardize the efficient operation of its milling process, but would 

result in a potential breakdown of its equipment and would result in the 

shutting down of its operation for major repairs. In short, contestant's 

position does not rest solely on the costs which may be incurred in 

constructing or pu~chasing soundbooths, but is based on its belief 

that the nat·ure of the work required to be done by the mill operators 

in question simply does not lend itself to placing them in sound booths. 

MSHA takes the position that soundbooths are in fact feasible noise 

controls at the two mill sites in question and that the contestant 

has not only failed to install them, but has not even made any attempts 

to try them out. MSHA also takes the position that by following the 

suggestions of its inspectors, the installation of soundbooths will 

reduce the level of noise to which each operator is exposed and will 

insure continued compliance with the requirements of the cited noise 

regulation. 

In its post-hearing brief, MSHA asserts that it has carried its 

burden of establishing the fact that the noise exposure as measured by 

its inspector for the secondary crusher operator and the ball mill 

operator exceeded the permissible levels pursuant to the cited section 

57.5-5-(b). In addition, MSHA argues that it has established that 
feasible engineering or administrative controls are available to abate 

the violations, and relies on the following in support of this conclusion: 

1. Inspector Worth's testimony regarding the construction 

and layout of the two mill buildings in question, including 

the types, locations, and functions of the machinery 

involved, and the primary sources of noise affecting the 

two employees in question. 

2. Inspector Worth's opinion and recommendations that the 

installation of readily available acountical soundbooths 

would reduce the noise exposure to the two employees cited. 

MSHA asserts that the inspector's mining experience, coupled 

with his observations of the two men in question at their 

work locations support his conclusions that the installation 

of soundbooths are available feasible administrative or 

engineering controls readily available to the contestant 

at minimal cost. 

3. Inspector Worth furnished the contestant with a copy of a 

29 page booklet entitled'~ngineering Noise Control-Guidelines 

for Metal and Nonmetal Mine Inspectors", which assertedly 

describes a variety of proven methods based on actual cases, 

for effective and feasible noise controls, including price lists 

and available acoustical materials and equipment. 

4. Inspector Worth's opinion, based on his knowledge of similar 

job classifications, and on his observations of the two 

employees in question over the eight hour sampling shift,, that 

a significant portion of the employees' workday could be spent 

in a soundproof booth without impairing the accomplishment 

of their routine duties, particularly since they could visually 

monitor and observe the various machinery guages from inside 

the booths. 

S. MSHA Health Specialist Gardy 1 s testimony that soundbooths 

were readily available and were widely used throughout the 

industry as a successful and economical method of reducing noise 

levels in milling and crushing operations similar to those 

conducted by the contestant. 

In addition to the testimony presented by its inspectors, MSHA 

argues that contestant 1 s testimony concerning the job requirements of 

the two employees in question lacks credibility and "boggles the imagination". 

MSHA also contends that the contestant has not only never attempted any 

basic steps to abate the conditions cited, but has never even considered 

any controls at the New Market Mine Unit, and has opted to rely on personal 

ear protection as sufficient protection against noise. Finally, MSHA 

points out that contestant's position concerning the use of soundbooths 
is not founded on economic considerations, and that since contestant is 

a very large corporation, MSHA believes that any of the basic controls 

available would require relatively insignificant expenditures. 

Contestant's New Market Mill Unit is a metal mine which mines 

and processes zinc ore (Tr. 73-74). Contestant does not contest the 

result of the inspector's noise level readings as stated on the face 

of the citations issued in these proceedings, nor does it contest the 

accuracy or veracity of those noise meter readings as testified to by 

the inspector (Tr. 81). As a matter of fact, in its post-hearing 

brief, contestant concedes that the results of its concurrent noise 

samples were substantially the same as those taken by the inspector. 

Further, contestant's arguments, as articulated by counsel in his brief, 

rests on its assertion that MSHA not only failed to establish that sound 

booths were feasible at the locations in question, but also failed to 

establish that other feasible engineering controls do in fact exist. 

Even though MESA's guidelines provide for several methods of reducing 

noise exposure, the inspectors in these proceedings take the position that 

the installation of soundbooths at the two mill sites in question here 

will effectively solve any noise problems and will in fact facilitate 

compliance. Under the circumstances, the critical question presented 

is whether MSHA can suppo.rt its position in this regard by a preponderance 

of the credible evidence that it has offered to prove its case. 

A discussion and analysis of the evidence presented by both parties follows 

below. 

With regard to MSHA's reliance on the noise guidelines cited by 

the inspector in the citations, and in particular the assertion that they 

are based on actual cases and thus are proven feasible and effective 

controls, MSHA conveniently omits the fact that the guidelines specifically 

state that the recommended controls discussed in.that publication must 

be considered on a <:'.ase-by-case b"asis·, that not all of the recommendations 

may be feasible for a specific machine type, and that this consideration 

will require individual judgment by the inspector. Since there are 

many kinds of metals and nonmetals, it stands to reason that there are 

many kinds or mills. Further, since I assume there are different methods 

available to process the material being mined at any one mill site, this 

diversity supports a conclusion that no two mills may be identical in 

terms of the equipment, processes, and noise exposure. If this conclusion 

is wrong, then I believe it is incumbent on MSHA to establish through 

credible evidence that all mills are alike, and that the installation 

of a workable soundbooth at some other mining operation supports its 

position that it will work at the mill sites in question in these 

proceedings. 

It also occurs to me that the source of any particular noise in a 

building which houses different kinds of equipment would be different, 

and a noise supression device which is workable in one area from where 

the noise source is located may not work in another area. It seems 
clear to me that a dosimeter reading over 90 may not necessarily 

mean that the individual worker is being overexposed to noise. From 

my understanding of the requirements of the noise standard, the question 

of whether an individual is overexposed to noise levels which may have 

an adverse effect on his hearing mechanism is dependent upon the noise 

exposure time. Therefore, the time that any individual worker spends at 

any particular job task which exposes him to prolonged periods of excessive 

noise becomes most critical to the question as to whether he is in or 

out of compliance with the dBA requirements of the ~tandard. MSHA's 

position seems to be·that since all mill operators perform the same job 

tasks, isolating them in a sound booth for four hours during an eighthour work shift will automatically bring them within compliance. The 

problem that I find with this rather simplistic approach is that MSHA's 

conclusions are based on speculative conclusions and opinions which 

are unsupported by any credible evidence. 

Although MSHA's health specialist Gardy testified that he was 

familiar with contestant's mining operations and had inspected similar 

mills and crushers, he admitted that he had never even seen the New 

Market Mill in question. With regard to his testimony that similar 

operators had successfully installed soundbooths, he conceded that the 

"similar" operators he had experience with were stone quarries and underground mines and that he knows of not one single metal mill which has 

such booths installed. His inability to cite any metal mills like those 

of the contestant to support his conclusion that soundbooths are feasible 

is based on his candid admission on cross-examination that he was not 

familiar with contestant ts mill and that he "did not know exactly what 

you have out there" (Tr. 720). Further, while Mr. Gardy was of the opinion 

that general engineering devices are available for all noise control, 

he conceded that he was not an engineer, nor an expert. As a matter of 

fact, he was not even aware of the fact that contestant had an audiometric 

program, including an industrial hygiene department employing some 40 

industrial hygienists. Finally, with respect to his conclusion that 

ing an individual in a soundbooth for two hours during a shift would 

lower his exposure to noise below the 90 dBA level, Mr. Gardy conceded 

that he had made no calculations to support that conclusion (Tr. 76). 

As a matter of fact, on direct examination, he conceded that his con~lusions 

that soundbooths would reduce the noise exposure in these cases was 

based on Inspector's Worth's testimony at the hearing, and even at that, 

he stated that soundbooth's would likely bring about compliance (Tr. 72). 

After careful consideration of Mr. Gardy's testimony, I have 

concluded that it is of little value in support of MSHA's case. 

Mr. is to unfamiliar with the mine site in question, has never 

been there, did not know what was going on there, knows of no soundbooths ever being installed in a mill similar to the one in question, he 

is not an expert, he never made any calculations to support his theory 

that the use of soundbooths at the mill in question would achieve 

compliance, and was unaware of contestant's noise control program. 

In short, MSHA have have been better off in not calling him as a witness. 
With regard to MSHA's assertion that the contestant has made no 

attempts to control the noise exposure levels at the New Market Mine, 

contestant's assistant mill superintendent'Lawrence testified that the 

company has expended $i35,000 at the Young Mill, an operation similar 

to the New Market Mine Unit, and that the noise levels have reduced one 

or two decibels. He also alluded to the fact that consideration was given 

to the use of rubber liners but that they were very expensive and did 

not last long. These efforts were confirmed by Mr. Thompson, and he 

testified that the contestant has an on-going hearing program staffed 

by audiometric technicians who conduct hearing tests, annual noise 

surveys, and employee examinations for the purpose of detecting hearing 

problems. He also indicated that all employees are allowed to choose 

from among three personal ear protection devices, and stated that several 

methods for reducing noise have been considered, including the use of 

rubber screens, insulating the walls of the buildings, enclosing the 

crusher from the rest of the building, relocation of equipment, and 

installing barriers around the crushers. Some of. these control measures 

are included in MSHA's guidelines. 

Contrary to MSHA's assertion that contestant has made no efforts 

to reduce its noise exposure levels, I conclude that the testimony of 

respondent's witnesses supports a finding that contestant has in fact 

attempted to reduce its noise levels. As a matter of fact, the record 

indicates that the expenditure of $135,000 has resulted in a reduction 

of the noise exposure at a similar plant. However, contestant's reluctance 

to use soundbooths obviously stems from its belief that the two employees 

must be constantly mobile and cannot safetly and efficiently perform their 

job tasks while isolated in a soundpooth for the periods of time indicated 

by the inspectors. In response to the inspector's contentions that 

soundbooths are in use at other similar plants, contestant's witnesses 

indicated that these booths are not acoustical soundbooths, but simply 

enclosures to protect employees from the weather. 

In Hilo Coast Processing Companz v. Secretary of Labor, DENV 79-50-M·, 

July 13, 1979, Commission Judge Moore vacated several citations after 

finding that MSHA had failed to prove that certain engineering controls 

recommended by inspector were technically and economically feasible. 

Judge Hoare found that for the most part, MSHA's proof was based on 

the unsupported personal judgments of the inspector who issued the 

citations, and that the operator was left in the untenable position of 

"guessing" as to what was required by the inspector for compliance. 

In MSHA v. Callanan Industries, Inc., YORK 79-99-M, decided 

January 12, 1981, Judge Melick vacated a noise citation after finding that 

MSHA had failed to establish through any credible evidence that its 

proposed noise controls were either economically or technologically 

feasible. 

After careful review and consideration of all of the testimony 

and evidence adduced in these proceedings, I am not persuaded that MSHA 

has established through any credible evidence that it is technologically 
feasible to implement the recommendations of its inspectors at the mills 

in question. MSHA's case is one based on broad speculative and theoretical 

conclusions which have no sound factual or evidentiary support. In 

short, it is based essentially on the subjective opinion of one inspector. 

When viewed in light of the testimony and evidence presented by the 

contestant, I ~imply can find no support ·for MSHA's position. 

As indicated earlier, I have given little or no weight to the testimony 

of Inspector Gardy. With regard to the testimony of Inspector Worth, I 

believe that he made a rather cursory study of the noise levels to which 

the employees in question were exposed, and his testimony reflects that 

he had no in-depth perception as to precisely what the duties of a 

crusher or ball mill operator are, and it seems obvious to me that he had 

no idea how long he spent monitoring the tasks required of those individuals. 

As a matter of fact, he conceded that he was not familiar with the duties 

of a ball mill operator, and the record reflects that he did not speak 

with the individuals, and apparently made no real attempt to ascertain 

precisely what they were expected to do during their working shifts. 

Further, as noted earlier, MSHA failed to call the two operators as 

witnesses, and simply relied on the so-called "expertise" of its inspectors 

to prove its case. As correctly argued by the co~1testant in its post-hearing 

brief, MSHA's proof in this regard leaves much to the imagination. 

With regard to the question concerning the mobility of the crusher 

operator and ball mill operator, I find that the contestant has established 

through credible evidence by its witnesses that it is neither feasible 

nor practical to isolate the two individuals in a soundbooth for the 

duration of time suggested by the inspector. I further find that the 

contestant has established that these two individuals must be mobile 

so that they are fully able to observe, test, and otherwise insure the 

safe and efficient operation of the equipment and machinery for which 

they are responsible. Based on the evidence presented by the contestant, 

subjecting these individuals to a soundbooth environment would seriously 

detract from their.ability to effectively and safely perform their 

job tasks during their working shifts. 

In view of the foregoing findings and conclusions, I conclude and 

find that MSHA has failed to establish that the contestant is in violation 

of the cited standards, and IT IS ORDERED that the citations issued to 

the contestant in these proceedings be VACATED. 

Distribution: 

y/ ti, (~Koutrs Administrative Law Judge 

Leo J. McGinn, Esq., U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

VA 22203 (Certified Mail) 

William 0. Hart, Esq., Asarco, Inc., 120 Broadway, New York, NY 10005 

(Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 60204 MAY 2 7 1981 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA)·, on ) 

behalf of MICHAEL J. DUNMIRE, and ) 

APPLICATION FOR REVIEW OF 

DISCRIMINATION 

JAMES R. ESTLE, ) 

Complainants, ) 

) 

v. ) 

) 

NORTHERN COAL COMPANY, ) 

) 

Respondent. ) 

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

APPEARANCES: 

DOCKET NO. WEST 80-313-D 

WEST 80-367-D 

(Consolidated) 

MINE: Rienau No. 2 

Frederick W. Moncrief, Esq., Office of the Solicitor, 

United States Department of Labor, 

Arlington, Virginia, 

For the Complainants 

Charles W. Newcom, Esq., 

Sherman and Howard, 

Denver, Colorado 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

STATEMENT OF THE CASE 

The Secretary of Labor of the United States, the individual charged 

with the statutory duty of enforcing the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq.(the Act), brings this action on behalf 

of complainants Michael J, Dunmire-and James R. Estle. Complainants allege 

they were illegally discharged from their employment by Northern Coal 

Company (Northern) in violation of § 105(c)(l) of the Act. 

The statutory provision allegedly violated provides as follows: 

§ l05(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. 

After notice to the parties a hearing on the merits was held in Littleton, 

Colorado, on July 24 - 25, 1980. The parties filed extensive post trial 

briefs. 

ISSUES 

The issues are whether complainants were discharged as a result of 

engaging in a protected activity. Further, if the finding is affirmative, what 

relief, if any, should be granted. 

APPLICABLE CASE LAW 

The Commission has ruled that to establish a prima facie case for a 

violation of § 105(c)(l) of the Act a complainant must show by a preponderance 

of the evidence that ( 1) he engaged in a protected activity and ( 2) that the 

adverse action was motivated in any part by the protected activity. The 

employer may affirmatively defend, however, by proving by a preponderance of 

all the evidence that, although part of his motive was unlawful, (1) he was 

also motivated by the minervs unprotected activities, and (2) that he would 

have taken adverse action against the miner in any event for the unprotected 

activities alone. Secretary of Labor on behalf of David Pasula v. 

Consolidation Coal Company, Pitt 78-458, 2 BNA MSHC 1001. 

FINDINGS OF FACT 

Portions of the evidence are conflicting. I find the following facts to 

be credible. 

The swing shift working crew at Northernvs Rienau Mine consisted of shift 

foreman Mike Morgan, Michael Dunmire, James Estle, two buggy drivers, and an 

extra man (Tr. 79, 83). On February 27, the crew worked on slope entry No. 1. 

Estle operated the continuous miner which mines the coal. Dunmire ~erved as 

the miner's helper. His duties included setting timbers and shovelling the 

ribs (Tr. 120). 

1332 
Prior to February 27, 1980, Dunmire had complained to Northern supervisors 

Morgan, Daniels and Pobirk that he didn't want to be under the unsupported top 

shovelling the coal under the loose ribs while the continuous miner was 

operating (69-70). In the entire slopes area the top roof was bad and falling 

out (Tr. 65, 66, 82). Roof falls had occurred two to four times during the 

shifts while Estle was running the continuous miner (Tr. 66, 67). The entire 

slo~pes area had been in this same condition for two to three months (Tr. 134). 

On February 27, the roof and ribs were 11 b lowing," that is, coal was flying out 

and the ribs were sloughing. There was "blowing out" behind the continuous 

miner (Tr. 83-84). 

On February 27, the dust generated by the operation of the continuous 

miner reduced visibility to almost nothing. This condition caused Estle some 

concern about someone being injured. Estle complained about having to mine 

under the unsupported roof (Tr. 73). Estle told Morgan they should stop the 

mining operation, crossbar the roof, and find additional air. No one refused 

to work during the swing shift on February 27, 1980. (Tr. 83-87). 

On February 28, Estle was told that the Mike Morgan crew was being broken 

up. Estle also learned that the plant superintendent approved the decision 

because foreman Morgan was spending too much time running the continuous miner. 

He was also told, as an additional reason for breaking up the crew, that Morgan 

was not keeping up with h supervisory duties including the roof control and 

rock dust plan (Tr 219-221, 238, 256). 

Immediately before start the swing shift on February 28, 1980, Estle 

talked to Rod Shaw, the continuous miner operator, from the previous shift. 

When asked about the top, Shaw said it was as bad as last night and "blowing 

out 11 1 (Tr. 93-94). Estle walked to the Stamler, where it was the custom to 

discuss mining conditions, and advised the crew the top was bad (Tr. 95). 

Dunmire then said he'd run the tailpiece or the Stamler during the shift. 

Morgan, the foreman, stated that since he lacked experienced men Dunmire would 

have to serve as a miner's helper. Morgan also replied that if he (Dunmire) 

didn 8 t want to do it he knew what he could do. At this juncture Estle 

interjected the remark that Dunmire could "get h bucket and go home" (Tr •. 

96, 141, 142). Estle's statement, given by him in a joking manner, was 

immediately ratified by Morgan. Dunmire left. Estle told the crew they should 

all go out with Dunmire. At this point foreman Morgan credits himself or crew 

member Petree as stating to Estle that if he went out, "you'll be cutting your 

own throat.or No one left (Tr. 97, 261). 

1/ The testimony of witness Gene Moore corrobrates Shaw's testimony and it 

appears in the discussion, infra. The writer finds Moore's testimony credible 

but it is not included at this point because Moore did not advise the 

Dunmire/Estle crew, of the conditions. 
Estle waited a minute or so and then told Morgan that he was sick and that 

he was leaving. Est le did not raise any safety issues with Morgan before 

leaving the worksite. Morgan knew Estle had a back problem (Tr. 98, 107, 123, 

124, 139). Estle repeated his explanation about being sick to plant 

superintendent Pobirk before he left the mine· (Tr; 102). Estle stated he would 

have gone home 11regardle~s 11 since he didn't feel good (Tr. 99). That afternoon 

Estle drove to Rifle, Colorado and he sought medical attention the following day 

(Tr. 99, 106). 

After the incident at the Stamler, Dunmire and Estle were told by Northern 

supervisor Pobirk that since they had walked off the job they had quit 

(Tr. 164, 228). Dunmire argued with Pobirk. He told him he wanted to work 

but he didn't think the top was safe. Dunmire said he wanted the miner shut 

down while he set the timbers, established ventilation, and shovelled the ribs. 

Pobirk told Dunmire that he was terminated (Tr. 164-165). 

Est le contended he did not quit, but left for medical reasons. According 

to him, a worker was permitted to go home if he was sick (Tr. 137). When Estle 

attempted to present his medical excuse to mine management they told him that 

they considered him to have quit (Tr. 103). 

Estle returned to the Northern mine about three weeks later. Estle told 

Northern personnel that he would drop his discrimination charge if he was 

rehired with back pay and a lost week of vacation (Tr. 104), He was told he 

could not be rehired because then if anyone else wanted to walk out they could 

do it and get away with it (Tr. 104). 

There is a wealth of evidence dealing with the operation of the continuous 

miner, with the crew's production of coal (generally excellent), with safety 

complaints involving electrical equipment, and with the mining process itself. 

Such evidence is not generally dispositive of the issues presented by the 

parties. 

CONTENTIONS REGARDING 

MICHAEL J. DUNMIRE 

Northern initially asserts that Dunmire quit or that Northern could take 

his action as a quit. I disagree. The credible evidence establishes that 

Dunmire refused to work as a miner's helper under a bad roof. He was forthwith 

discharged, Morgan does not dispute complainant's version of the facts at the 

Stamler. Immediat after the Starnler incident Pobirk told Dunmire that he 

considered him to have quit because he walked off the job. Dunmire argued with 

him and told him that he still wanted to work but didn't think the top was 

safe. He also wanted the miner shut down while he set the timbers, established 

ventilation, and shovelled the ribs. Pobirk then said Dunmire was terminated 

(Tr. 164-165). 

Northern's further arguments focus on the alleged failure of Dunmire and 

Estle to articulate that an unsafe work condition existed; further, that 

Dunmire and Estle failed to examine the work area; finally, that the work area 

was not, in fact, unsafe. 
I find from the uncontroverted facts that Dunmire had previously 

complained to company supervisors Morgan, Daniels, and Pobirk that he did not 

want to shovel coal under the unsupported roof while the continuous miner was 

operating (Tr. 69-70). No su~h complaints were made by Dunmire on February 28 

to Morgan. However, one must consider these prior complaints as evidence that 

Morgan and Pobrick knew Dunmire was concerned about the unsafe condition of the 

roof. The montage upon which is based the finding that Dunmire exhibited to 

Morgan that he was leaving for safety reasons and was consequently fired is: 

the crew is together at the Stamler; Estle advises them of the bad top; Dunmire 

at this juncture refuses to work as a miner's helper; he is forthwith 

terminated by the crew foreman, Morgan, and the termination is confirmed by the 

mine superintendent Pobirk. 

Northern correctly states the law that before a miner can trigger the 

discrimination provisions of the Act there must be some claim that the 

conditions the employee is working in, or about to work in, are unsafe. Taylor 

Adkins et al v. Deskins Branch Coal Company, PIKE 76-66, 2 BNA MSHC 1023, 

I agree with Northern that Dunmire himself on February 28 made no safety 

related complaints to Morgan (Tr. 176). However, it is apparent from the above 

stated circumstances that Morgan, the foreman, knew Dunmire' s refusal to work 

was based on what he considered to be the unsafe roof Cf Mine Workers Local 

1110 v. Consolidation Coal Company, MORG 76 X 138 IBMA No. 77-43, 2 BNA MSHC 

1022. Additionally, Dunmire expressed his concern about the unsafe roof 

conditions to Pobirk in his office after the incident at the Starnler. Pobirk 

responded by saying Dunmire was terminated (Tr. 164, 165, 281, 282). 

In supp9rt of its view, Northern relies on Secretary of Labor and Charles 

W. Miller v. Old Ben Coal Company, Docket No. LAKE 79-282-D, 1 BNA MSHC 2333 

Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 772 (D.C. Cir., 

1974), and Secretary of Labor ex rel. Billy Gene Kilgore v. Pilot Coal Company, 

VA 79-144-D, 1 BNA MSHC 2363. 

The above cases do not support Northern's arguments. In Charles W. 

Miller the dialogues between the miner and management were, at best, mere 

disagreements, As such they could not form the basis for a discrimination 

charge. In Phillips the miner did in fact complain to the foreman and the mine 

safety conunittee. Billy Gene Kilgore did not involve a safety hazard. The 

miner's refusal to drive the hauler truck was based on his fear of injury due 

to his lack of experience. No protected activity existed. In none of the 

cited cases there a factual situation compatible with the facts here. It is 

apparent from the circumstances here that Dunmire refused to work under the 

unsupported roof and for this refusal he was discharged. 

Northern further directs its argument 

to examine the area alleged to be unsafe. 

that neither Dunmire nor Estle entered the 

the swing shift on February 28, 1980. 

to the failure of Dunmire and Estle 

At the outset I agree with Northern 

mine immediately prior to starting 
It is not necessary to make such an examination. The evidence is 

persuasive that Dunmire refused to work as a miner's helper because he thought 

the roof condition was unsafe. Dunmire 1 s belief that the roof was unsafe is 

based on the following events: On February 27 the miners were in the no. 1 

entry in the slopes. In the entire slopes area the top roof was bad and 

falling out (Tr. 65, 82, 66). Roof falls occurred two to four times during the 

prior swing shif~ while Estle was running the continuous miner (Tr. 61). The 

roof and ribs were 11 blowing11 , that is, coal was flying out and the ribs were 

sloughing. There was "blowing out" in behind the continuous miner (Tr. 83-84). 

The entire slopes area had been in the same condition for two to three months 

(Tr. 134). Inunediately before starting the swing shift on February 28 Estle 

talked to Shaw, the continuous miner operator from the prior shift. Shaw 

stated to Estle that "the top was bad" (Tr. 95). Estle related this statement 

to the entire crew including the foreman (Tr. 95). At this point Dunmire 

refused to work. The credible evidence establishes the bases of a reasonable 

belief on Dunmire's part that the roof was unsafe. 

No.rthern states 

was, in fact, safe. 

Morgan, and Diaz. I 

proposition. 

that its evidence supports the view that the work area 

Particularly, Nor~hern relies on its witnesses Daniels, 

do not find that Northern's evidence supports this 

Daniels described the top as "fair" with the admonition that no coal mine 

has good top (Tr. 223). Morgan agreed the roof was "flaking" (Tr. 267). As 

Morgan sees it, the difference between flaking and falling is one of quantity. 

He describes a piece of coal as flaking if the size is one eighth of an inch 

up to a foot. A roof fall is four or five· feet high and fifteen to twenty feet 

long. Diaz indicated the roof was flaking but not "too bad". He stated that 

this was normal for coal top. (Tr. 297). As indicated above, Northern's 

evidence concerning the condition of the roof does not directly conflict with 

the complainants' evidence~ 

Based on the foregoing facts and for the reasons stated, I conclude that 

Michael J. Dunmire 1 s complaint of discrimination should be affirmed. 

JAMES R. ESTLE 

The facts concerning Estle have been established by the credible evidence 

as previously stated .. 

DISCUSSION 

Northern 1 s post. trial arguments were directed in tandem at the Dunmire and 

Estle cases. The issues concerning the failure of the miners to examine the 

work area and whether the slope area was safe or unsafe have been resolved in 

the discussion of the Dunmire case. The same rulings are applicable in the 

Est le case. 
Northern's additional arguments are that Estle failed to articulate a 

safety complaint, that h~ quit, and that he promoted an unauthorized strike. 

Additional arguments are directed to credibility issues. 

The evidence shows that on February 28, at the Stamler, Estle advised the 

whole crew, including foreman Morgan, that they were "putting up with the same 

thing as last ·night and I talked to Rod and he said the top was bad" (Tr. 95). 

Th-is constituted the articulation of a safety complaint on behalf of the entire 

crew. Estle encouraged the crew to walk out in support of Dunmire because he 

thought Dunmire was being fired for refusing to work in unsafe conditions (Tr. 

97, 98). Estle was exercising on behalf of Dunmire and the crew a statutory 

right to complain about unsafe conditions and the right to refuse to work under 

such unsafe conditions, Fasula, supra. The Act protects a miner exercising 

•.• "On behalf of himself or others ••• any statutory right .•• 11 30 U.S.C. 815 

(c)(l). 

Northern's reply brief contends that Estle admitted he did not claim there 

were unsafe working conditions innnediately prior to leaving the mine. (Tr. 

107, Line 8-20). The portion of the transcript cited by Northern must be 

considered in its context; namely, Estle admits he did not state an unsafe 

condition was his personal reason for leaving. As indicated above he had 

already complained that the roof was bad. Estle's reason for not raising the 

safety issue again with Morgan is best expressed by his testimony. 2 

Justification for Estle telling Morgan he was leaving because of his back 

problem rather than restating the safety complaint is also found in the events 

that occurred just prior to his leaving. As Dunmire left the section Estle 

told the rest of the crew "we ought to go with him" (Tr. 261), Morgan3/ then 

said "well, if you go out, you'll be cutting your throat" (Tr. 261). -

Northern contends Estle quit, or it could consider his actions as an 

intent ion to quit. I dis agree. He was entitled to fall back on a heal th 

reason for leaving since a worker could go home if he became sick (Tr. 137). 

Estle received medical attention the following day (Tr. 99, 106). When he 

returned to the mine to present his medical excuse he was told by management 

that they considered him to have quit because he had walked out of the mine. 

Estle denied he had quit (Tr. 102, 103). 

2/ Q. If you thought there was something unsafe, why didn't you raise that 

with Mr. Morgan? 

A. I think the main reason is after you argue so long about things like that, 

you finally just say, 11What the hell, 11 you just do the best you can and take as 

few chances as you can and try to make your pay and get money to live on and I 

was tired of arguing about it. 

3/ Morgan attributes the statement to himself and then to Roy Petree. I 

attribute the statement to Morgan as he initially testified (Tr. 261). 
Northern further asserts that if Estle was discharged any such action 

was justified since the uncontroverted evidence shows Estle promoted an 

unauthorized strike. In support of its position, Northern cites Secretary of 

Labor ex rel Alfred A. Santistevan v. C F & I Steel Corporation, WEST 80-85-D, 

1 BNA MSHC 252~. Northern 1 s argument lacks merit. The facts must generate the 

conclusion that Estle was fired because he promoted a strike. The bur<;len of 

proving such an issue rests with respondent, and there was no evidence to 

support such a conclusion, cf David Pasula v. Consolidation Coal Company, 

supra. 

Northern argues that complainant~ testimony is not credible because they 

raised the safety issue the second time they saw management and after they had 

showered. I disagree. When Dunmire left the Stamler, supervisors Pobirk and 

Daniels were standing nearby on the surface. Dunmire asked each man if they 

wanted to talk to him. Both replied "No". Dunmire continued on his way, 

frustrated and mad. He thought it best to take a shower and cool off (Tr. 

164). In short, I do not find that Dunmire and Est le made up their stories 

between the events at the Stamler and the conversations in Pobirk's office. 

Northern urges that the evidence of an unsafe roof condition is 

unreliable. Northern says that roof conditions change rapidly and MSHA would 

claim foul if a defense were made that roof conditions on day one also existed 

ori day two. A portion of this issue was resolved in the discussion of the 

reasonable bases for Dunmire's and Estle's belief .that the roof was unsafe. In 

addition to the evidence previously discussed, I find the testimony of witness 

Gene Moore, a continuous miner operator, to be most persuasive concerning the 

condition of the mine on February 28th. I have credited Moore's testimony 

;ver that of the Northern supervisors because he was operating the continuous 

miner in the shift innnediately preceding Estle's shift, and in the same area 

Estle was to mine. Moore was, as the expression goes, "in the trenches." His 

testimony establishes that the crew was finishing the break through in No. 1 

entry and starting into No. 2 entry. Rod Shaw operated the continuous miner 

the first half of the shift. The roof and rib conditions in No. 2 entry were 

not very good. During the shift the miners lost about three quarters of the 

roof (Tr. 181-188). When Moore left that day the ribs in No. 2 entry were 

sloughing and blowing a bit (Tr. 189). Going out at the end of the shift.Moore 

heard Rod Shaw tell Estle that they should watch the top as it was very bad 

(Tr. 181-190). Contrary to Northern's view and based on the foregoing 

testimony, I conclude the roof was unsafe on February 28th. Based on the 

foregoing facts and for the reasons stated I conclude that James R. Estle 0 s 

complaint of discrimination should be affirmed. 

TEMPORARY REINSTATEMENT ORDER 

of MICHAEL DUNMIRE 

The thrust of Northern's argument is that it was error to deny its request 

that a full hearing on the merits of the Dunmire case be held at the time of 
the hearing on the temporary reinstatement order. The procedural ru1es4/ of 

the Commission provide for a hearing on the temporary reinstatement order 

within five days after the operator requests such a hearing. The purpose of 

the hearing is to determine whether the Secretary's finding that the miner's 

complaint of discrimination was not frivolously brought was arbitrarily and 

capriciously made. 

In the present case, Chief Judge James A. Broderick entered a 

reinstatement order as to Michael J. Dunmire on May 22, 1980. No reinstatement 

order was applied for on behalf of James Estle. On May 30, 1980, Northern 

requested a hearing on the order of temporary reinstatement, The parties 

agreed to have the hearing held on June 6, 1980. The order directed that the 

hearing be limited in scope by the terms of Commission Rule 44(a). On June 5, 

1980, Northern moved for the consolidation of a hearing on the merits with the 

hearing on the temporary reinstatement order, or in the alternative, for the 

expedition of the hearing on the merits. 

The hearing on the temporary reinstatement order took place as scheduled. 

At the hearing Northern renewed its motion to consolidate (Tr. 8-9, June 6, 

1980). 

The undersigned denied Northern's motion for an immediate hearing on the 

merits on the grounds that the issues had not yet been framed inasmuch as a 

Complaint had not been filed. The motion for an expedited hearing was granted 

and the hearing on the merits was set for July 24, 1980. 

DISCUSSION 

Commission Rule 29 C.F.R. § 2700.44(a) defines the scope of the hearing on 

the temporary reinstatement order. Accordingly, the Commission rule takes 

precedence over Rule 65(a)(2) of the Federai Rules of Civil Procedure relied on 

by Northern to support its position that the hearing on the merits should have 

been consolidated with the hearing.on the reinstatement order. Cf. Commission 

Rule 29 C.F.R. § 2700.l, 

4/ § 2700.44 Temporary reinstatement proceedings. 

Ta) Contents of application procedure: hearing. An application for 

reinstatement shall state the Secretary's finding that the complaint of 

d crimination, discharge or interference was not frivolously brought and the 

basis for his find The application shall be immediately examined, and, 

unless it is determined from the face of the application that the Secretary's 

finding was arbitrarily or capriciously made, an order of temporary 

reinstatement shall be immediately issued. The order shall be effective upon 

issuance. If the person against whom relief is sought requests a hearing on 

the order, a Judge shall, within 5 days after the request is led, hold a 

hearing to determine whether the Secretary's finding was arbitrarily or 

capriciously made. The Judge may then dissolve, modify or continue the order. 

(b) Dissolution of order. If, following an order of reinstatement, the 

Secretary determines that the provisions of section 105(c)(l) have not been 

violated, the Judge shall be so notified and shall enter an order dissolving 

the order of reinstatement. If the Secretary fails to file a complaint within 

90 days, the Judge may issue an order to show cause why the order of 

reinstatement should not be dissolved. An order dissolving the order of 

reinstatement shall not bar the filing of an act ion by the miner in his own 

behalf under section 105(c)(3) of the Act and § 2700.40 of these rules. 

1:13B 
Northern argues that the temporary reinstatement of a miner without an 

opportunity for the mine operator to counter the allegation of discrimination 

violates due process principles. Northern states that it should not be 

compelled to employ someone who was rightfully discharged. I agree that it is 

possible that the enforcement of the Act may result in the temporary 

reinstatement of a miner who at the conclusion of all proceedings under the Act 

will be found to have been" properly terminated. However, Congress believed 

that the operator was in a better position than the miner to sustain any 

financial loss caused by the delays necessary for the investigation and 

adjudication of the complaint. The legislative history is clear on this 

issue: 

Upon determining that the complaint appears to have merit, the 

Secretary shall seek an order of the Commission temporarily 

reinstating the complaining miner pending final outcome of the 

investigation and complaint. The committee feels that this 

temporary reinstatement is an essential protection for complaining 

miners who may not be in the financial position to suffer even a 

short period of unemployment or reduced income pending the 

resolution of the discrimination complaint. U.S. Senate Report, 

Report No. 95-181, 95th Cong., 1st. Sess. at 36-37 (1977). 

It would be incongruous with the intent of Congress to require the 

Secretary to complete the investigation and prepare for a trial on the merits 

before applying for the temporary reinstatement of the miner. Accordingly, the 

scope of the hearing on the application for reinstatement limited to the 

issue of whether the Secretary acted arbitrarily and capriciously in finding 

that the complaint was not frivolously brought. At this hearing, the operator 

has the opportunity to examine the facts upon which the Secretary's finding was 

based ·and the procedures he employed to arrive at his determination .. The judge 

must decide whether the Secretary's determination was based on a consideration 

of the relevant factors, namely; that the miner allegedly engaged in protected 

activity and as a consequence thereof was discharged or otherwise discriminated 

against by the mine operator. The judge must decide whether there has been a 

c ear error of judgment. However, the judge cannot substitute its judgment for 

that of the Secretary. The judge must also determine if the Secretary followed 

the necessary procedural requirements. Citizens to Preserve Overton Pa.rk v. 

Volpe 401 U.S. 402 (1971). 

Commission Rule 29 C.F.R. § 2700.44 complies with Congressional intent and 

is not violative of due process. This was the ruling in a similar case decided 

by the district court in Zeigler Coal Co., v. Marshall 502 F. Supp. 1326 

( S. D. , I 11. , 1980) . The court there fol lowed the precept that "Congress has 

broad latitude to readjust the ec?nomic burdens of the private sector in 0 futherance of a public purpose. Only if Congress legistates to achieve its 

purpose in an arbitrary and irrational way is due process violated," citing 

Nachman Corp. v. Pension Benefit Guarantee Corp., 592 F.2d 947 (7th Cir. 

1979), citing Usery v. Turner Elkhorn Mining Cb., 429 U.S. 1, 15 (1976). In 

'Ziegler the court specifically ruled that the ·governmental interest in 

encouraging miners to report unsafe conditions was a legitimate goal and the 

means chosen to accomplish it were rational. 
Southern Ohio Coal Company v. F. Ray Marshall, 464 Fed. Supp. 450 

S.D. Ohio, 1978, cited by Northern, does not support a different 

conclusion. In Southern Ohio the mine operator was not afforded any 

opportunity for a hearing. Under Commission Rule 29. C.F.R. § 2700.44(a) 

an operator may receive a hearing within five days of filing its request. 

This provision provides due process under the circumstances here where the 

Congress, under certain conditions authorized "immediate reinstatement of 

the miner pending a final order on the complaint." 30 U.S.C. 815(c)(2). 

Northern, at the hearing on the temporary reinstatement order, did 

not seek any evidence of the factual bases relied on by the Secretary to 

apply for the reinstatement of Dunmire. Contrary to the statement in 

Northern's brief, I ruled that such evidence was relevant (Tr. 21~22). 

Northern has not successfully overcome Commission Rule 29 C.F.R. § 

2700.44(a). The temporary reinstatement of Dunmire was proper. 

REINSTATEMENT 

After the hearing the parties agreed that Michael J. Dunmire 

voluntarily left the employ of Northern Coal Company on August 22, 1980. 

(Statement filed September 29, 1980). The parties further agreed that 

if Michael J. Dunmire prevailed in his claim of discriminatory discharge 

then reinstatement would not be an appropriate remedy. 

Inasmuch as James R. Estle's complaint of discrimination is affirmed 

he should be reinstated. 

CIVIL PENALTIES 

In each case the Secretary seeks a civil penalty of $8 ,000 against 

Northern for the violation of Section 105(c) of the Act. Northern asserts 

that the proposed penalty is unwarranted. I do not agree with Northern 

that the Secr.etary did not present any evidence in support of his proposed 

penalty. The credible evidence has been reviewed and the complaints of 

discrimination have been affirmed. The Act provides that any violation of 

the discrimination section shall "be subject to the provisions of section 

1085/ and llO(a). 116 / The statute authorizes the imposition of a 

penalty in an amount not to exceed $10,000. 30 U.S.C. § 820(a). In 

assessing civil monetary penalties the Connnission is to be guided by 

section llO(i) 7/ of the Act. However, in construing a similar 

statute8/ settTng forth factors to be considered in assessing penalties 

the United States Court of Appeals for the 8th Circuit stated that 11 [ t ]he 

5/ 

6/ 

71 

Bl 

30 

30 

30 

30 

u.s.c. 

u.s.c. 

u.s.c. 

u.s.c. 

818 

820(a) 

llO(i) 

666(j) which provides: 

(j) The Commission shall have authority to assess all civil penalties 

provided in this section, giving due consideration to the appropriateness 

of the penalty with respect to the size of the business of the employer 

.being charged, the gravity of the violation, the good faith of the 

employer, and the history of previous violations. 

134.1 
assessment of penalties is not a findLng but an exercise of a 

discretionary grant .or power." Brennan v. OSHRC and Interstate Glass 

Company 487 F. 2d 438. (8th Cir., 

Considering the pertinent statutes and in view of the fact~ I dee~ a 

penalty of $3,000.00 to be an appropriate civil penalty in each case. 

MONETARY AWARDS 

After the conclusion of the hearing and the filing of briefs the 

undersigned entered an order directing the parties to stipulate to the 

potential back pay of complainants; in the event the parties could not 

agree, an evidentiary hearing would have been held. The stipulation was 

filed, together with supplemental briefs. Several secondary issues were 

presented in connection with the monetary awards. These are (1) whether 

complainants are entitled to the inclusion of vacation pay in the back pay 

award; (2) whether complainants are ent led to reimbursement for their 

expenses in connection with their attendance at the hearing; and (3) 

whether Est le' s appropriate back pay period is from the day he was 

discharged to the day he resumed full employment status with another 

employer on April 14, 1980 or should back pay continue to accrue after 

April 13, 1980, less any interim earnings. 

The initial issue concerns vacation pay·; Dunmire and Estle had 

accrued a right to take one week's vacation. Northern takes the position 

that the workers have no such entitlement since the amount agreed to for 

regular earnings, shift differential, and overtime was full pay for each 

and every day they could have worked during the back pay period. Northern 

states that its policy regarding vacation pay requires that employees take 

time off. They cannot elect to receive vacation pay in lieu of such time 

off. 

The thrust of Northern's argument is directed at "double dipping", 

that , an employee cannot, at the same time, draw vacation pay and 

regular pay. Although company policy requires an employee to take time off 

and prohibits an election to receive vacation pay in lieu of time off, 

such vacation pay, as a part of the employment contract, accrues and has a 

monetary value. The award of vacation pay should accordingly be granted as 

a portion of back pay. 

The second issue concerns reimbursement of expenses in connection with 

attending the hearings. Under Section 10S(c)(2), in a discrimination 

proceeding brought by the Secretary, the Connnission may direct "other 

appropriate relief," including an order incorporating affirmative action to 

abate and "back pay and interest." A 105(c)(2) case brought by the 

Secretary does not directly authorize costs and expenses. 

On the other hand, in a proceedings brought by a miner 

behalf under Section 105(c)(3), in addition to back pay and 

Commission shall award a sum for "all costs and expenses." 

1342 

on his own 

interest, the 

The apparent 
conflict, as outlined above, is resolved by a review of the legistative 

history: 

It is the Committee's intention that the Secretary 

propose, and that the Commission require, all relief 

that is necessary to make the complaining party whole 

and to remove the deleterious effects of the discriminatory conduct including, but not limited to reinstatement with full seniority rights, back-pay with 

with interest, and recompense for any special damages 

sustained as a result. of the discrimination. The 

specified relief is only illustrative. Thus, for example, 

where. appropriate, the Commission should issue broad cease 

and desist orders and include requirements for the posting 

of notices by the operator. 

S.Rep. No. 95-181, 95th Cong. 1st Sess. 37, reprinted in (1977) U.S. 

Code Cong. & Ad News 3400, 3437. 

Application of the statutory •tandard has resulted in the 

reimbursement of lost equity in a truck (Secretary on behalf of E. Bruce 

Noland v. Luck Quarries, Inc., 2 FMSHRC 954), an employment agency fee 

(Secretary on behalf of William Johnson v. Borden, Inc., SE 80-46- DM April 

13, 1981), transcript, court costs, and attorneys fees (Frederick G. 

Bradley v. Belva Coal Company, supra. Here, the expenses incurred in 

participation in the hearings are special damages necessarily resulting 

from complainants' prosecution of their claims. The statute intended these 

expenses to be borne by the individual whose conduct occasioned them. 

Northern also. argues that no expenses should be awarded Dunmire for 

the hearing on the temporary reinstatement order because the Secretary 

asserted that no testimony could be taken regarding the merits of the case. 

This point has been thoroughly discussed (supra, pages 8 - 11). In 

addition, there is no doubt that the presence of Dunmire was necessary in 

the prosecution of his claim. 

The third sue concerns the calculation of Estle 1 s back pay. Estle 

resumed full employment with another employer on April 14, 1980. The issue 

is whether the appropriate back pay period should be from February 28, 1980 

through April 13, 1980 or should back pay continue to accrue after April 

13, 1980 less any interim earnings. 

The ba~k pay provisions of § 105(c) of the Act are patterned after the 

provisions of Title VII of the Civil Rights Act. These provisions are 

modeled after the National Labor Relations Act, 29 U.S.C. § 160(c) Cf 

Albemarle Paper Co v. Moody 422 U.S. 405 (1975). NLRB precedent indi"Cites 

that as a general rule back pay is the difference between what the employee 

would have earned but for the wrongful discharge less his actual interim 

earnings. OCAW v. NLRB, 547 F. 2d 598 (D.C. Cir., 1976). Basically this 

would be gross pay less net interim earnings. The employer is also 

responsible for complying with applicable state and federal laws on the 

, 
withholding of taxes, etc. Cf Social Secur y Board v. Nieratko,327 U.S. 

358 ( 1946), Bradley v. Belva Coal Company WEVA 80-708-D. (April 1981). 

Based on the case ,law stated above the back pay should continue to 

accrue less any interim earnings. OCAW v. NLRB, supra. However, Northern 

argues that Estle's award of back pay is limited by his pleadings which 

sought back pay only through the time when he "resumed full employment 

status with another employer." 

According to the stipulation the back pay through his reemployment 

date on April 13, 1980 is $2,485.78 (plus vacation pay). On the other 

hand, according to the stipulation, Estle's back pay through March 6, 1981 

less interim earnings, would be $5,442.41. 

Northern indicates there is no case authority dealing with this 

issue. Its argument is that under the doctrine of equitable estoppel the 

Secretary should be precluded from seeking a larger award of back pay 

because Norther relied on the initial claim in the pleadings during the 

settlement negotiations. Northern says it would be inappropriate and 

inequitable to change the rules one year later. Northern also contends the 

doctrine of mitigation of damages is ap.plicable. In support of its 

position Northern cites State Farm Mutual Automobile Ins. Co. v. Petsch, 

261 F. 2d 331, (10th Cir, 1958); Phelps Dodge v. N.L.R.B., 313 U.S. 177, 61 

S. Ct. 845 (1941), and U.S. v. Lee Way Freight, Inc. 625 F. 2d 918, (10 

Cir. 1979). I do not find these cases controlling. 

Concerning the issue of equitable estoppel, it is well settled that 

the United States government is no~ in a position identical to that of a 

private litigant when it is involved in the enforcement of laws enacted by. 

Congress. U.S. v. Hibi 414 U.S. 5 (1973). State Fann is inapplicable since 

it was a suit brought by an insured against the insurer. The Supreme Court 

has held that as a general rule neglect of duty on the part of officers of 

the government is no defense to a suit by it to enforce a public right or 

protect a publ interest. Hibi citing Utah Power & Light Co. v. U.S. 243 

U.S. 389. As explained above;-"°Estle has a statutory right to the accrual 

of back pay after April 13, 1980 less any interim earnings. The government 

cannot be estopped from enforcing this right. 

Further, the relief awarded in a judgment is not limited to that 

demanded in the pleadings. Federal Rule of Civil Procedure 54(c). 

Northernis additional argument concerns the legal requirement that all 

persons must mitigate their damages. Northern's argument focuses on the 

proposition that Estle did not seek temporary reinstatement. Therefore, 

the argument goes, given the limited request for relief, Estle failed to 

mitigate his damages in that he chose to retain a lower paying job rather 

than to seek a return to Northern pending resolution of his complaint. 

I disagree. The facts do not support such a "choice" by Estle nor is 

the Act subject to the construction Northern now urges. Estle returned to 

Northern and was advised he could not be rehired. He then mitigated his 

damages by obtaining other employment. The order herein .based on the 
stipulation, assesses back pay through March 6, 1981. However, back p~y 

will continue to accrue until Estle is reinstated or until he waives such 

right. 

Based on the stipulation and for the foregoing reasons I conclude the 

following monetary awards should be made: 

MICHAEL J. DUNMIRE 

Back pay 

Vacation pay 

Expenses in attending hearing: 

June 6, 1980 

July 24-25, 1980 

$6 '208 .10 

454.00 

162.04 

236. 58 

$7,060.72 

JAMES R. ESTLE 

Back pay through March 6, 1981 

Vacation pay 

Hearing expenses 

$5,442.41 

492.00 

253.78 

$6,188.19 

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

the fol lowing: 

Ca~e No. WEST 80-313-D 

Michael J. Dunmire 

ORDER 

1. Complainant Michael J. Dunmire was unlawfully discriminated 

against and discharged by respondent for engaging in an activity protected 

under Section 105(c) of the Act, and said complainant's charge of 

discrimination is sustained. 

2. Respondent is ordered to pay Michael J. Dunmire the sum of 

$7,060.72 consisting of the following: 

Back pay 

Vacation pay 

Incidental expenses for 

attending hearing: 

June 6, 1980 

July 24-25, 1980 

1:i1h 

$6,208.10 

454.00 

162.04 

236.58 

$7,060.72 
Further, respondent is to pay interest on said back pay, including 

vacation pay, from February 28, 1980 at the rate of 12 1/2% per annum.2/ 

3. The employment record of Michael J. Dunmire is to be completely 

expunged of all conunents and references to the circumstances involved in 

his discharge. 

4. A civil penalty in the amount of $3,000.00 is assessed against 

respondent for violating Section 105(c) of the Act. 

Case No. WEST 80-367-D 

J.ames R. Estle 

1. Complainant James R. Estle was unlawfully discriminated against 

and discharged by respondent for engaging in an activity protected under 

Section 105(c) of the Acr,and said complainant's charge of discrimination 

is sustained. 

2. Respondent is ordered to reinstate James R. Estle to the position 

from which he was discharged, at the present rate of pay of said position, 

and with the same or equivalent duties as assigned prior to his discharge, 

without the loss of seniority or other benefits. 

3. Respondent is ordered to pay James R. Estle the sum of $6,188.19 

consisting of the following: 

Back pay through March 6, 1981 

Vacation pay 

Hearing expenses 

$5,442.41 

492.00 

253.78 

$6,188.19 

Further, respondent is ordered to pay interest on said back pay and 

vacation pay from February 28, 1980 , at the rate of 12 1/2% per annum. 

4. The employment record of James R. Est le is to be completely 

expunged of all comments and references to the circumstances involved in 

his discharge. 

5. A civil penalty in the amount of $3,000.00 1s assessed against 

respondent for violating Section lOS{c) of the Act. 

9/ Interest rate used by Internal Revenue Service for underpayments and 

overpayments of tax, Rev Ruling 79-366. Cf Florida Steel Corporation, 231 

N.L.R.B. No. 117, 1977-78, CCH, N.L.R.B. Para 18,484; Bradley v. Belva 

Coal Company, supra. 
Distribution: 

Frederick W. Moncrief, Esq., Office of the Solicitor, United States 

Department of Labor, 4015 Wilson Blvd., Arlington, Virginia 22203 

Charles Newcom, Esq., Dawson, Nagel, Sherman & Howard, 2900 First of Denver 

Plaza, 633 17th Street, Denver, Colorado 80202 

1347 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF Al1MINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 HAY 2 9 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EDDIE COAL COMPANY, INC., 

Respondent 

DECISION 

Docket Nos. 

KENT 79-264 

KENT 79-265 

KENT 79-370 

KENT 80-131 

No. 14 Hine 

Assessment Control Nos. 

15-01554-03005 

15-01554-03006 

15-01554-03008 v 15~01554-03010 

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

U.S. Department of Labor, for Petitioner; 

Before: 

Herman W. Lester, Esq., Combs and Lester, PSC, 

Pikeville, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued April 18, 1980, as supplemented 

on April 28, 1980, a hearing in the above-entitled proceeding was held on 

June 3, 1980, in Pikeville, Kentucky. The four Proposals for Assessment of 

Civil Penalty involved in this proceeding allege a total of 59 violations 

of the mandatory health and safety standards. Toward the end of the first 

day of hearing, evidence had been received and bench decisions had been 

rendered as to of the 59 alleged violations. Following a recess, 

counsel for the ies stated that they had reached a settlement agreement 

with respect to the remaining 51 alleged violations. Thereafter, counsel· 

for the Secretary of Labor filed on December 9, 1980, a motion for approval 

of settlement with respect to the 51 violations as to which no bench decision 

had been rendered. 

The first portion of this decision will be a final issuance of the 

bench decisions rendered at the hearing with respect to the eight contested 

violations. The remaining portion of the decision will discuss the motion 

for approval of settlement. Under the parties' settlement agreement, respondent has agreed to pay reduced penalties totaling $2,850 in lieu of the 

penalties totaling $7,025 proposed by the Assessment Office. 

The bench decisions reproduced below pertain entirely to the Proposal 

for Assessment of.Civil Penalty filed in Docket No. KENT 79-264. The bench 

decisions appear throughout the transcript following the completion of evidence with respect to the eight contested violations. ·The transcript pages 

on which the bench decisions begin are shown following the headings for each 

contested violation. The introductory paragraphs which appear below under 

the heading "Contested Violations" are applicable to all of the bench 

decisions (Tr. 21). 
Docket No. KENT 79-264 

Contested Violations 

This consolidated proceeding involves four Proposals for Assessment of Civil Penalty filed by the Secretary of Labor. The Proposals 

in Docket Nos. KENT 79-264 and KENT 79-265 were both filed on 

September 13, 1979, and seek assessment of civil penalties for 20 and 

19,violations, respectively, of the mandatory health and safety standards by Eddie Coal Company. The Proposals in Docket Nos. KENT 79-370 

and KENT 80-131 were filed on October 17, 1979, and February 11, 1980, 

respectively, and seek assessment of civil penalties for 3 and 17 

alleged violations, respectively. 

The issues in a civil penalty case are whether violations occurred 

and, if so, what civil penalties should be assessed, based on ~he six 

criteria set forth in section llO(i) of the Federal Mine Saf and 

Health Act of 1977. Some of the criteria may be considered in a general 

manner so that the consideration of those criteria become applicable 

for an entire proceeding, such as this one, which involves a large 

number of alleged violations. 

At least two of the criteria may be considered on a general basis in 

this case. As to those tuo criteria, there has been a stipulation by the 

parties. As to the criterion of the size of the operator's business, 

the parties have stipulated that respondent in this case is a small 

operator which produces at the present time about 134 tons of coal per 

day. It was first stated that payment of penalties would not cause the 

operator to discontinue in business (Tr. 5). [After the settlement 

conference, however, the parties stipulated that payment of penalties 

would have an adverse effect on respondent's ability to continue in 

business and a period of 90 days within which respondent would be 

required to pay the settlement penalties was requested (Tr. 185).] 

Citation No. 712092 dated 2/13/79~ Section 75.517 (Tr. 23) 

Findings. Section 75.517 requires, among other things, that power 

wires and cables shall be insulated adequately and be fully protected. 

The violation alleged in Citation No. 712092 occurred because the 

operator had failed to use additional insulation where a cable passed 

through a permanent stopping before it connected to a water pump located 

in the main intake airway. The violation was nonserious and the operator was nonnegligent. It was stipulated that the operator made a good 

faith effort to achieve rapid compliance. 

Conclusions. Although the former Board of Hine Operations Appeals 

has held that an uperator is conclusively presumed to know what the 

mandatory health and safety standards are, the violation in this instance involves something that an operator would not necessarily have 

known that he was required to do, because the wire in this instance 

was in good condition and did not have any worn places on it. The wire 
did have insulation on it so that the operator could have concluded 

that this particular wire was insulated adequately and was fully 

at the point where it passed through a permanent stopping. 

However, the inspector says that it is his policy to cite this type 

of violation any time there's a possibility that stress and wear on 

a wire might expose bare wires and bring about a possible shock or 

electrocution. 

The purpose of the Act and the regulations is to make a mine 

just as safe as possible for the miners. Therefore, the inspector's 

motive was good and it undoubtedly is a worthwhile practice to have 

every protective step taken to assure that no one will be 

shocked or electrocuted. However, in assessing a penalty for this 

particular violation, I think that a very nominal penalty should be 

assessed in view of the circumstandes that I just recited. Consea of $1 will be assessed for this violation. 

Citation No. 7 dated 2 9 Section 75.303 

Section 75.303 provides, among other things, that belt 

conveyors on which coal is carried shall be examined after each coalshif t has begun and that "su.ch mine examiner shall place his 

initials and date and time at all places he examines." I find that 

no violation of section 75.303 was proven in this instance because 

the inspector cited a violation of that section based on his conclusion 

that no preshif t examination had been made. The violation 

which occurred, if any, was that the section foreman had failed to 

make an examination of the belt conveyor during the shift which was 

worked at the time the inspector cited the violation. 

Conclusions. I have run into this particular alleged violation 

on and each time the inspectors either cited a violation based on the fact that the section foreman had failed to make 

an onshift examination by omitting the checking of the conveyor belt 

or the cited the operator for failure to make a 

examination based on the fact that the inspector was unable to find 

the initials and date and time showing that the preshift examination 

had been made. 

In this instance, the inspector says that the section foreman 

indicated that he had so much work to do in the mine that he had been 

unable to make an examination of the belt at the time the inspector 

was to the section foreman. The difficulty with citing the 

violation the way the inspector has done it is that he has based it 

on a conclusion that the section foreman must place his initials and 

the time and the date at the places examined when he makes an onshif t 

examination of the conveyor belt. The way the sentence is worded in 

section 75.303, the examination of the belt conveyor is something 

that has to be done after the shift begins, but the mine examiner is 

to his initials and the date and the time at all places 

he examines and that initialing requirement connects back to the mine 

examiner who was involved in making a preshiftexamination. 
It is my conclusion that the sentence about examining belt conveyors after the shift has begun is out of context with the requirements set forth in section 75.303 for the obligations and duties of 

the preshift examiner. I think that Citation No. 712094 so mixes 

the obligation of the preshift examiner with those of the section 

foreman, who was making the onshift examination, that it's an improper 

conclusion to assume from the fact that t"\le inspector was unable to 

find these initials and the date along this conveyor belt that the 

onshift examination of' the belt conveyor had not been made or wouldn't 

have been made on this particular day. As counsel for the operator 

has observed, the section foreman was with the inspector during part 

of the shift and, therefore, his inspection of the belt at that time 

may not have been done because he was with the inspector. 

The inspector does not claim that the entries in the preshif t 

examination book had not been made. Since there is no allegation that 

the examinations were not being made and were not being recorded, I 

cannot find that a violation occurred merely because the inspector 

was unable to find more dates along the conveyor belt than he did on 

February 13, 1979. 

Citation No. 712095 dated 2/13/79, Section 75.1725 (Tr. 73) 

Findings. Section 75.1725 provides that mobile and stationary 

machinery and equipment shall be maintained in a safe operating condition and machinery or equipment in unsafe condition shall be removed 

from service innnediately. A violation of section 75.1725 occurred 

because the inspector observed on a 3,000-foot conveyor belt 36 bottom 

rollers which were stuck. The violation was moderately serious in the 

circumstances because none of the rollers were touching coal on the 

mine floor and the majority of them were in areas where there was 

moisture. The operator had failed to observe the stuck rollers during 

the preshift or onshift exanination and they're easy to see and should 

have been located. Consequently, there was a rather high degree of 

negligence. The operator demonstrated a good faith effort to achieve 

rapid compliance. 

Conclusions. Inasmuch as the violation was moderately serious", 

that there was a high degree of negligence, and that a small operator 

is involved, a penalty of $50.00 is appropriate. There is no history 

of previous violations to be considered, according to Exhibit No. 45. 

Citation No. 712098 dated 2/13/79, Section 75.523 (Tr. 99) 

Findings·. Section 7 5. 523 provides that electric face equipment 

shall be provided with devices that will permit equipment to be deenergized quickly in the event of an emergency. A violation of Section 

75.523 occurred because the operator of the Joy loading machine had 

moved the panic bar on the machine to an upward position so that it 

would not quickly deenergize the equipment in the event of an emergency. 

The violation was serious in that it would be possible for an equipment 

operator to be caught and crushed against a rib because of his inability 

to reach the panic bar in an emergency situation. Some·equipment 
operators have a practice of placing the panic bar in an upward 

position to prevent accidental deenergization of the equipment. Unfortunately, when the panic bar is placed in an upward position, it 

is then not close enough to the operator to facilitate inunediate 

usage of the panic bar in an emergency. The equipment operators' 

practice of placing the panic bar in an upward position has made it 

difficult for respondent to prevent the type of violation cited in 

this instance. The evidence indicates that respondent demonstrated 

a good faith effort to achieve rapid compliance. 

Conclusions. As Mr. Taylor pointed out in his summary, the provisions of section 75.523-2 indicate that movement of no more than 

2 inches should have to be made in order to actuate the deenergization device. There is no real argument in this instance as to whether 

the violation occurred. The question is whether a large penalty should 

be assessed because of the fact that the violation resulted from something that the equipment operator himself brought about. The Commission has recently held that mine operators are liable for violations 

regardless of fault, and the Commission has been very strict in re-

· quiring that a penalty be assessed in anv situation where a violation 

has occurred because the philosophy behind the use of civil penalties 

is that penalties do deter the mine operators from allowing repeat 

violations. 

In a situation such as this, I can sympathize with Hr. Lester's 

argument that it's difficult to replace miners and that a mine operator 

can't discharge one every time he violates a safety regulation. The 

only thing he can do is to insist upon stricter supervision by the 

section foreman over people who do not take safety as seriously as 

they should. But I think that the precedents \vould require me to 

assess a fairly large penalty in this instance in order that repeat 

violations of this nature are discouraged in every possible way. So, 

primarily, on the basis of the seriousness of the violation and recogthat the operator is not guilty of a high degree of negligence 

in this case, a penalty of $50.00 will be assessed. 

I notice under the criterion of history of previous violations 

that Exhibit 45 shows that the operator has two previous violations 

of section 75.523. It has been my practice to increase ~enalties 

when there is shown to be a history of previous violations. Therefore, considering the fact that a small operator is involved, the 

penalty will be increased by $10.00 under the criterion of history of 

previous violations to a total penalty of $60.00. 

Citation No. 712099 dated 2/13/79, Section 75.400 (Tr. 133) 

Findings. Section 75.400 provides that coal dust, including float 

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

combustible materials shall not be permitted to accumulate in active 

workings. A violation of section 75.400 occurred because the inspector 

found isolated pockets of loose coal ranging in depth from 1 to 3 inches 
in entries 1 through 7. The accumulations were near the ribs and 

were in an area which was 150 feet from the working face. The 

area was rock dusted except for the accumulations and, consequently, 

the violation was only moderately serious. Respondent had a program 

providing for cleaning in the area and apparently the accumulations 

resulted from shooting from the solid so as to cause coal to fall 

from the ribs. The evidence indicates that the operator showed a 

good faith effort to achieve rapid compliance. 

Conclusions. The Commission in Old Ben Coal Company, 1 FNSHRC 

1954, (1979), held that the mere existence of accumulations of combustible materials is a violation. The Coim~ission said the purpose 

of the Act is to prevent fire and explosions as a result of accumulations of combustible materials. 

In this instance, however, we have some very small accumulations 

and, although there is evidence that there are some permanent splices 

tha,t exis.ted in this working area, the fact remains that these particular accumulations were close to the rib and that the working area 

was wet except for the area close to the rib where the accumulations 

existed. Consequently, I feel that there was little chance of fire 

or an explosion from these particular accumulations, particularly 

since no methane has been detected in this mine. Therefore, I think 

that a small penalty should be assessed in this instance of $25.00. 

Exhibit 45 shows that respondent has previously violated section 

75.400 on two occasions, so the penalty will be increased by $10.00 

under the criterion of history of previous violations to a total 

of $35.00. 

Citation No. 712100 dated 2/13/79, Section 75.601 (Tr. 151) 

Findings. Section 75.601 requires, among other things, that 

disconnecting devices used to disconnect power from trai~ing cables 

shall be plainly marked and identified, so that disconnection of 

such devices can be easily determined through visual observation. 

A violation of section 75.601 occurred because the inspector found 

that, although the disconnecting devices for the trailing cables for 

the roof-bolting machine, the loading machine, and the shuttle car 

had been plainly narked at some time, the disconnecting devices were 

not plainly marked on the day that he wrote Citation No. 7121000 

The violation was serious because, if a person had been asked 

to disconnect a given cable so that the electrician, for example, 

could work on.the cable at a splice or for another reason, the failure 

of the person to disconnect the correct cable could result in a 

possible shock or electrocution. 

There was ordinary negligence in this instance because the operator had at one time marked these cables and it is a question of fact 

as to how well marked they were at this time. There's always the 
possibility for the electrician to feel that his markings were still 

legible but might not have been.legible to some other employee who 

might have been asked to disconnect these devices. The evidence shows 

that there was a good faith effort made to achieve rapid compliance. 

Conclusions. Inasmuch as a small operator is involved, that 

the ion was serious, and that there was ordinary negligence, 

a penalty of $55.00 would be assessed, but Exhibit 45 indicates that 

the operator has a history of one previous violation of section 75.601. 

Therefore, the penalty will be increased by $5.00 to $60.00 under the 

criterion of history of previous violations. 

Citation No. 712703 dated 2/13/79, Section 75.200 (Tr. 174) 

Section 75.200 requires that each operator submit a 

plan applicable to his mine. Respondent's roof-control 

plan required that a pry bar be provided for each roof-bolting 

machine in the mine. A. violation of section 75.200 occurred because 

the pry bar was unavailable on the machine at the time the inspector 

asked about it. The violation was moderately serious and the operator 

was guilty of ordinary negligence. There was a good faith effort 

made to achieve rapid compliance. 

Conclusions. The inspector's testimony indicates that he believes 

the violation was serious because he said, without the pry bar being 

available to the operator of the roof-bolting machine, it might have 

been possible for the operator to leave loose material on the roof or 

in an overhanging rib which would otherwise be taken down, if the 

pry bar were available. The inspector also referred to the existence 

of kettle bottoms in this part of the mine. 

Respondent's witness stated that 75 to 80 percent of the roof in 

the No. 14 Mine is sandstone and that the need for prying down materials such as slate is not a common requirement in this mine. Addi-

• respondent's witness indicated that people, other than the 

of the roof-bolting machine, do take the pry bars for other 

purposes, even though respondent provides one for each.roof-bolting 

machine. 

In such circurastances, a penalty of $25.00 would be assessed, 

but Exhibit 45 shows that Respondent has three prior violations of 

section 75.200. Since a small operator is involved, the penalty 

will be inc1· ,:..cl by $15.00 to $40.00 under the criterion of history 

of :Jlations. 

Non.contested Violations 

Docket No. KENT 79-264 

Evidence with respect to Citation No. 712702, alleging a violation of 

section 75.523, was introduced on transcript pages 154 through 165, but 

I granted a request by respondent's counsel that no bench decision be 
rendered with respect to that alleged violation until respondent's counsel 

could call a witness to testify with respect to the violation (Tr. 164). 

After the parties entered into a settlement agreement, I granted their 

request that they be permitted to include the violation of section 75.523 

among the violations which became a part of the settlement agreement 

(Tr. 186). On page 4 of the motion for approval of settlement, I am requested to rely upon the proof submitted at the hearing in approving the 

parties' settlement agreement with respect to Citation No. 712702. That 

citation alleged that respondent violated section 75.523 by having an inoperative panic bar on its battery-powered tractor. The Proposed Assessment 

sheet in the official file shows that the Assessment Office considered the 

violation to have resulted from ordinary negligence, to have been serious, 

and proposed a penalty of $106 which respondent has agreed to pay in full. 

The evidence introduced at the hearing would support the find made by 

the Assessment Office. Therefore, the parties' settlement agreement should 

be approved with respect to Citation No. 712702. The evidence which respondent would have introduced if a settlement had not been reached might have 

caused me to make different findings from those made above, but since the 

parties agreed to settle the issues raised by Citation No. 712702, my review 

is limited to determining whether the settlement agreement is reasonable, 

rather than whether a violation occurred and whether respondent's evidence, 

if it had been introduced, would require different findings from those which 

were originally made by the Assessment Office. 

Evidence was presented on transcript pages 176 to 184 with respect 

to Citation No. 712704, alleging a violation of section 75.517, but that 

alleged violation also became a part of the settlement agreement (Tr. 185). 

The motion for approval of settlement, at page 4, asks that I approve the 

parties' settlement agreement on the basis of the evidence received at pages 

176 to 184. Citation No. 712704 alleged that respondent had violated 

section 75.517 by failing to reinsulate four small cracks in the trailing 

cable to the coal drill. The Assessment Office considered the violation 

to have resulted from ordinary negligence, to have been serious, and proa penalty of $90 which respondent has agreed to pay in full. The 

testimony at the hearing shows that the potential hazard was greater than 

it was considered to be by the Assessment Office because the inspector stated 

that the coal drill was sitting in water and that its trailing cable was 

lying in water when he first observed the coal drill (Tr. 180). Of course, 

the inspector did not make his examination of the drill and its cable until 

the drill and its cable had been removed from the water, but he said that 

the cracks in the cable exposed any person who did touch the cable to 

possible electrocution. Inasmuch as the parties agreed to make this alleged 

violation a part of their settlement agreement before respondent crossexamined the inspector or presented any evidence with respect to the alleged 

violation of section 75.517, it would be improper for me to find, on the 

basis of the inspector's testimony alone, that the Assessment Office erred 

in failing to assign more penalty points than it did to this alleged violation 

under 30 C.F.R. § 100.3. It is sufficient, for settlement purposes, that 
the findings of the Assessment Office be supported by the evidence in the 

record. I find that the settlement agreement under which respondent has 

agreed to pay the full penalty of $90 proposed by the Assessment Office 

should be approved since the evidence supports the Assessment Office's 

findings. 

No evidence was presented at the hearing with to any of the 

other 49 violations alleged in this proceeding. Therefore, from this point 

to the conclusion of this decision, the only considerations are those which 

are normally considered in a settlement proceeding, that is, whether the 

motion for approval of settlement gives adequate reasons for approving the 

amount of the penalties which respondent has agreed to pay. 

Citation No. 712705 alleged that respondent had violated section 

75.1722(b) by failing to provide a guard at the conveyor belt's tail pulley. 

The Assessment Office found the violation to have resulted from a high degree 

of ordinary negligence, to have been serious, to have been abated in a normal 

manner, and proposed a penalty of $140. Respondent has agreed to pay a reduced penalty of $60. The motion for approval of settlement states that 

a reduced penalty is warranted because it was unlikely that a person could 

be injured by the tail pulley here involved and that the operator was entitled to a reduction in assignment of penalty points under the criterion of 

good faith abatement because the conveyor belt was stopped immediately after 

the citation was written and a guard was installed. I find that adequate 

reasons have been given for approving the reduced penalty. 

Citation No. 712706 alleged that a violation of section 75.313 had 

occurred because the methane monitor on the loading machine was inoperative. 

The Assessment Office found the violation to have resulted from ordinary 

negligence, to have been moderately serious, to have been abated in a normal 

manner, and proposed a penalty of $52. Respondent has agreed to pay a 

reduced penalty of $17. The motion for approval of settlement claims that 

the reduction is primarily justified by the fact that respondent's mine has 

no history of ever having released any methane and the fact that respondent 

stopped production to achieve compliance, thereby becoming entitled to 

maximum consideration for an outstanding effort to achieve rapid 

compliance. 

Citation that a violation of section 75.604 had 

occurred because the cable to the loading machine had permanent 

s which were not effectively sealed to exclude moisture. The Assessment Office considered the violation to have resulted from ordinary negligence, to have been serious, to have been abated in a normal manner, and 

proposed a pen~lty of $90. Respondent has agreed to pay a reduced penalty 

of $30. The motion for approval of settlement states that the reduced 

penalty is warranted by the fact that, if a hearing had been held, the 

evidence would have shown that the cable was adequately insulated. It is 

also stated that respondent is entitled to a reduction of the penalty proposed by the Assessment Office because respondent stopped production until 

further work could be done to insulate the trailing cable. 

135h 
Citation No. 712708 alleged that a violation of section 75.604 had 

occurred because the trailing cable to the coal drill had four permanent 

splices which were not effectively insulated to exclude moisture. The 

Assessment Office found the violation to have resulted from ordinary negligence, to have been moderately serious, to have been abated in a normal 

period of time, and proposed a penalty of $90. Respondent has agreed to 

pay a reduced penalty of $30 which the motion for approval of settlement 

justifies for the same reasons referred to above with respect to Citation 

No. 712707. 

Citation No. 712709 alleged that a violation of section 75.200 had 

occurred because respondent had failed to provide straps in several entries 

where kettle bottoms were present in the roof. The Assessment Office considered the violation to have resulted from ordinary negligence, to have 

been serious, to have been abated in a normal manner, and proposed a 

penalty of $106. Respondent has agreed to pay a reduced penalty of $30. 

The reduced penalty is said to be warranted by the fact that respondent 

stopped production to install the necessary additional roof support. The 

Assessment Office failed to give any consideration for rapid abatement. 

Citation iJo. 712710 alleged that a violation of section 75.503 had 

occurred because a burst conduit to the batteries on a tractor prevented 

the tractor from being in permissible condition. The Assessment Office 

considered the violation to have resulted from ordinary negligence, to 

have been moderately serious, to have been abated in a normal manner, and 

proposed a penalty of $66. Respondent has agreed to pay a reduced penalty 

of $20 which is said to be warranted primarily by the fact that respondent 

took extraordinary steps to gain compliance,.whereas the Assessment Office 

gave insufficient consideration to respondent's effort to achieve rapid 

compliance. 

Citation No. 712711 alleged that a violation of section 75.202 had 

occurred because several overhangin3 brows had not been taken down or 

supported. The Assessment Office considered the violation to have resulted 

from ordinary negligence, to have been serious, to have been abated in a 

normal manner, and proposed a penalty of $106. Respondent has agreed to 

pay a reduced penalty of $30. The reduced penalty is said to be warranted 

by the fact that respondent was having a difficult problem in connection 

with brows left by shooting coal from the solid, that is, without use of a 

cutting machine. Respondent was attempting to eliminate the problem at 

the time the inspection was made and respondent stopped production to 

achieve rapid compliance. 

Citation No. 712714 alleged that a violation of section 75.202 had 

occurred because several timbers along the roadway had been dislodged and 

had not been replaced. The Assessment Office considered the violation to 

have resulted from ordinary negligence, to have been serious, to have been 

abated in a normal manner, and proposed a penalty of $106. Respondent has 

agreed to pay a reduced penalty of $30. The reduced penalty is said to be 

warranted primarily because of management's taking .extraordinary steps to 

achieve rapid compliance. 
Citation No. 712715 alleged that a violation of section 75.5 had 

occurred because respondent had failed to record the weekly examination 

of electrical equipment since no entries had been made in the book for 

11 days preceding the inspection. The Assessment Office considered the 

violation to have resulted from ordinary negligence, to have been nonserious, to have been abated in a normal manner, and proposed a penalty 

of $52. Respondent has agreed to pay a penalty of $17 which is said to 

be warranted by the nonserious nature of the violation and the fact that 

the Assessment Off ice failed to give respondent as much consideration for 

rapid abatement as the facts would warrant if a hearing had been held to 

develop all extenuating cicumstances. 

Citation No. 712716 alleged that a violation of section 75.316 had 

occurred because respondent had not submitted an updated version of its 

ventilation, methane, and dust control plan. The Assessment Office found 

the violation to have resulted from ordinary negligence, to have been nonserious, to have been abated in a normal manner, and proposed a penalty 

of $38. Respondent has agreed to pay a reduced penalty of $12 which is 

said to be warranted the fact that respondent submitted an updated plan 

on the day following the writing of the citation and thereby became entitled to maximum consideration for having achieved rapid compliance. 

Most of the reductions in penalties under the settlement agreement 

for the violations in Docket No. KENT 79-264 have been justified 

in the motion for of settlement on the basis that the Assessment 

Office gave no consideration for respondent's having taken extraordinary 

steps to achieve I would normally consider a settlement 

agreement to be somewhat contrived by relying upon that aspect of the criteria to such a extent if it were not for the fact that the testimony 

at the hearing supports such reliance (Tr. 159; 182-183). Therefore, for 

the reasons given above, I find·that the settlement agreement as to the 

violations in Docket No. KENT 79-264 should be approved. 

Docket No. KENT 79-265 

Citation No. 712717 that a violation of section 75.1202 had 

occurred because respondent had failed to keep its mine map up to date by 

making temporary notations thereon. The Assessment Office considered the 

violation to have resulted from ordinary negligence, to have been nonserious, 

to have been abated in a normal manner, and proposed a penalty of $38. Respondent has agreed to pay a reduced penalty of $5. The motion for approval 

of settlement states that the reduced penalty is warranted primarily because 

respondent stopped production to achieve rapid compliance, whereas the Assessment Off ice allowed for normal abatement in assigning penalty points 

under 30 C.F.R. § ·100.3. 

Although the motion for approval of settlement does not discuss it, 

there is built into the Assessment Office's method of assigning penalty 

points under section 100.3 a practice which can be difficult to appraise in 

some cases. The ice I am talking about is the Assessment Office's 

1~5k 
method of assigning penalty points under the criterion of history of previous 

violations. It should be noted that all violations alleged in Docket No. 

KENT 79-265 have assigned to them eight penalty points under the criterion 

of history of previous violations based (1) on the fact that an average of 

from 11 to 20 violations were cited at respondent's mine each year during 

the 24 months preceding the occurrence of the.violations alleged in this 

proceeding, and (2) on the fact that from nine-tenths of a violation to one 

violation was written at respondent's mine each time an inspector spent 

1 day making an examination at respondent's mine. Assignement of eight 

penalty points under the criterion of history of previous violations causes 

each penalty in Docket No. KENT 79-265 to be assessed a minimum amount of 

$16, apart from any amount to be assessed under the other five criteria. 

The difficulty in adjusting for the Assessment Office's method of computing penalties under the criterion of history of previous violations is 

illustrated with respect to Citation No. 712712 here under consideration. 

The violation consists of the operator's failure to make temporary notations 

on a mine map. The parties' settlement agreement has recognized the nonserious nature of the violation and has agreed on a nominal penalty of $5, 

but it is difficult to justify such a small penalty under the Assessment 

Ofrice's penalty formula described in section 100.3 because, under the 

single criterion of respondent's history of previous violation, the Assessment Office has proposed a·penalty of $16 attributable solely to respondent's 

history of previous violations. There was introduced in evidence at the 

hearing as Exhibit No. 45 a computer printout which shows that respondent 

has not previously violated section 75.1202. Therefore, in my opinion, 

respondent, in this instance, should be assessed no penalty under the criterion of history of previous violations. If one bears in mind, in this 

instance, the rieed to eliminate the basic penalty of $16 built into the 

Assessment Office's formula under the criterion of history of previous 

violations, and then if one invokes the Assessment Office's formula for 

evaluating· the criterion of good-faith abatement, by recognizing that 

respondent should be given full credit for its rapid achievement of compliance, as claimed by the motion for approval of s '-lement, the parties' 

settlement agreement, under which respondent has ·eed to pay a penalty 

of $5~ can be approved. 

Citation No. 712718 alleged that respondent ~d violated section 75.316 

by failing to provide a water spray at the dumping point. The Assessment 

Office considered the violation to have resulted from ordinarv negligence, 

to have been moderately serious, to have been abated in a normal manner, 

and proposed a penalty of $52, whereas respondent has agreed to pay a penalty 

of $17 which is to be warrented primarily by the fact that respondent 

stopped production to achieve compliance and is therefore entitled to maximum consideration for rapid abatement. 

"it:ltion No. 712724 alleged that respondent had violated section 75.516-1 

by using unapproved insulators to instalJ · Power conductor. The Assessment 

Office found the violation to have resulted from a relatively high degree of 

ordinary negligence, to have been serious, to have involved a lack of goodfaith effort to achieve compliance, and proposed a penalty of $275, whereas 
respondent has agreed to pay a reduced penalty of $100. The motion states 

that the reduced penalty should be justified primarily on the fact that the 

violation was corrected immediately. The evidence does not permit me to 

approve the reduced penalty on the basis alleged on page nine of the motion 

for approval of settlement because Exhibit No. 3 in Docket No. KENT 79-265 

shows that the inspector issued Withdrawal Order No. 712741 when respondent 

failed to take prompt action to abate the alleged violation. Respondent 

did not abate the violation until July 27, 1979. The order of termination 

stated that the improperly suspended cable was replaced with a new cable 

which could carry a much higher voltage than the cable originally cited 

for improper suspension. 

I believe that a reduced penalty of $100 should be approved. The 

amount of $16 assigned by the Assessment Office under the criterion of 

history of previous violations can be eliminated because Exhibit No. 45 

in this proceeding shows that respondent has not previously violated section 

75.516-1 or any subsection of that section. The finding that respondent 

failed to make a good-faith effort to achieve compliance can also be eliminated along with the penalty of $20 associated with application of the 

criterion of respondent's effort to achieve rapid compliance. Additionally, 

the gravity of the violation was not as great as it was considered to be by 

the Assessment Off ice. Both of the aforementioned reductions are supported 

by the fact that the inspector's order was modified to permit respondent to 

continue to use the improperly suspended cable for 3 months before a new 

cable was installed. If the violation had been as serious as it was considered to be by the Assessment Office, the inspector could not have extended 

the time for compliance for a 3-month period. In such circumstances, I 

find that respondent's agreement to pay a penalty of $100 should be approved. 

Citation No. 712729 alleged that respondent had violated section 77.1301 

by allowing dry grass and paper boxes to accumulate around the magazine used 

for storage of explosives and detonators. On page nine of the motion for 

approval of settlement, a request is made that the Proposal for Assessment 

of C Penalty be dismissed in Docket No. KENT 79-265 to the extent that 

it seeks assessment of a penalty for a violation of section 75.1301 on the 

that, if a further hearing had been held, the evidence would have 

shown that the combustible materials had accumulated a considerable distance 

from the explosives magazine and did not create a condition prohibited by 

section 75.1301. I find that good cause has been shown for granting the 

motion to dismiss, as hereinafter ordered. 

Citation No. 712725 alleged that a violation of section 75.503 had 

occurred because the insulation was frayed on both sides of a cable reel on 

a shuttle car. The Assessment Office considered the violation to have resulted from ordinary negligence, to have been moderately serious, to have 

been abated in a normal manner, and proposed a penalty of $66, whereas 

respondent has agreed to pay a penalty of The motion states in effect 

that a reduced penalty is warranted because the violation was not as serious 

as it was considered to be by the Assessment Office and that respondent 

should be given maximum consideration for good-faith abatement because 

production was stopped until the condition could be corrected. 
Citation No. 712726 alleged th1. : a violation of section 75. 703 had 

occurred because respondent had not provided a frame ground for a shuttle 

car. The Assessment Office considered the violation to have resulted 

from ordinary negligence, to have been serious, to have been abated in a 

normal manner, and proposed a penalty of $90, whereas respondent has 

agreed to pay a penalty of $75. The motion seeks to justify the reduced 

penalty on the ground that respondent is entitled to maximum consideration 

for rapid abatement. Additionally, the Assessment Office assigned eight 

penalty points under the criterion of history of previous violations, whereas 

Exhibit No. 45 shows that respondent has not previously violated section 

75.703. 

Citation No. 712727 alleges that a violation of section 75.1303 had 

occurred because respondent was using a shooting cable containing a temporary splice which had not been insulated at all. The Assessment Office 

considered the violation to have resulted from ordinary negligence, to 

have been serious, to have been abated in a normal manner, and proposed a 

penalty of $106, whereas respondent has agreed to pay a reduced penalty of 

$30. The motion states that the reduction is warranted because of respondent's rapid abatement. Additionally, Exhibit No. 45 shows that respondent 

has not previously violated section 75.1303. 

Citation No. 712728 alleged that a violation of section 75.1704 had 

occurred because water had accumulated in the No. 3 entry to a depth of 

from 8 to 10 inches. The No. 3 entry is a haulage roadway and a return 

air escapeway. The Assessment Office considered the violation to have 

resulted from ordinary negligence, to have been serious, to have been 

abated in a normal manner, and proposed a penalty of $106, whereas respondent has to pay a reduced penalty of $35. The motion states that 

the reduced penalty is warranted by management's having taken extraordinary 

steps to achieve compliance. Also respondent is entitled to a reduction in 

the penalty because Exhibit No. 45 shows that respondent has not previously 

been cited for a violation of section 75.1704. 

Citation No. 712625 alleged that a violation of section 75.400 had 

occurred because respondent allowed some cardboard boxes to accumulate 

around the explosives magazine located 150 feet from the working face. 

On page 10 of the motion for approval of settlement it is requested that 

the Proposal for Assessment of Civil Penalty in Docket No. KENT 79-265 be 

dismissed to the extent that it seeks assessment of a penalty for an alleged 

violation of section 75.400 on the ground that the inspector who wrote the 

violation subsequently vacated the citation as having been issued in error. 

I find that the motion for dismissal should be granted as hereinafter ordered. 

Citation No. 712626 alleged that a violation of section 75.1306 had 

occurred because respondent had allowed the wagon used to haul explosives 

to be parked in the shuttle car roadway while loaded with powder and detonators and with the shuttle car's trailing cable resting against the explosives wagon. The Assessment Office considered the violation to have resulted 
from ordinary negligence, to have been serious, to have been abated in a 

normal manner, and proposed a penalty of $106, whereas respondent has 

to pay a reduced penalty of $30. The motion states in effect that 

the reduced penalty is justified by the fact that the violation was not as 

serious as it was considered to be by the Assessment Office and by the fact 

that respondent is entitled to maximum consideration for rapid abatement. 

Additionally, respondent has not previously violated section 75.1303. 

Citation No. 712627 alleged that respondent had violated section 75.512 

by failing to maintain a bell on a scoop in an operable condition. On 

page 11 of the motion for approval of settlement it is requested that the 

Proposal for Assessment of Civil Penalty be dismissed to the extent that it 

seeks assessment of a civil penalty for an alleged violation. of section 

75.512 because the inspector who wrote the citation later vacated it as 

having been issued in error. I find that the motion to dismiss should be 

granted as hereinafter ordered. 

Citation No. 712628 alleged that respondent had violated section 

75.1704-2(d) because a map to show designated escapeways from the working 

section to the main escape system had not been provided. The Assessment 

Office considered the violation to have resulted from ordinary negligence, 

to have been nonserious, to have been abated in a normal manner, and proposed a penalty of $40, whereas respondent has agreed to pay a penalty of $13. 

The motion states that a reduced penalty is warranted because respondent is 

entitled to maximum consideration for good-faith abatement. Also, Exhibit 

No. 45 shows that respondent has not previously violated section 75.1704. 

Citation No. 712629 alleged that r-espondent had violated section 75.1704 

by failing to mark the second escapeway properly. The Assessment Office 

considered the violation to have resulted from ordinary negligence, to have 

been nonserious, to have been abated in a normal manner, and proposed a 

penalty of $40, whereas respondent has to pay a penalty of $13. The 

motion gives the same reasons for allowing a reduced penalty with respect 

to Citation No. 712629 as were above with respect to Citation No. 

712628, 

Citation No. 712630 alleged that respondent had violated section 75.200 

by failing to provide canopies for two main entries as required by respondent's roof-control plan. The Assessment Office considered the violation 

to have resulted from ordinary negligence, to have been serious, to have 

been abated in a normal manner, and proposed a penalty of $106, whereas 

respondent has agreed to pay a penalty of $50. The motion states in effect 

that the reduced penalty is warranted because the violation was not as 

serious as it was·considered to be by the Assessment Office and that respondent is entitled to maximum consideration for having achieved rapid compliance. 

Citation No. 712631 alleged that respondent had violated section 75.1001 

by failing to remove some rocks and trees from a highwall. The Assessment 

Office considered the violation to have resulted from ordinary negligence, 

to have been moderately serious, to have been abated in a normal manner, 

and proposed a penalty of $78, whereas respondent has agreed to pay a penalty 

1362 
of $25. The motion states that the reduced penalty is warranted because 

respondent is entitled to consideration for rapid abatement. Additionally, 

Exhibit No. 45 shows that respondent has not previously violated section 

75.1001. 

Citation No. 712632 alleged that respondent had violated section 

77.1102 by failing to post warning signs to prohibit smoking and open 

flames near a storage area for combustible liquids. The Assessment Office 

considered the violation to have been the result of ordinary negligence, 

to have been nonserious, to have been abated in a normal manner, and proposed a penalty of $40, whereas respondent has agreed to pay a penalty of $5. 

The motion states that the reduced penalty is warranted on the ground that 

the employees were aware of the location of the s area and knew not 

to smoke in that area. It is also alleged that respondent is entitled to 

maximum consideration for rapid achievement of compliance. Finally, 

Exhibit No. 45 shows that respondent has not previously violated section 

77 .1102. 

Citation No. 712634 alleged that respondent had violated section 75.303 

because respondent had failed to note at seals in the mine that weekly inspections of the seals at an abandoned area had been made. The Assessment 

Off ice considered the violation to have been the result of ordinary negligence, to have been moderately serious, to have been abated in a normal manner, 

and proposed a penalty of $66, whereas respondent has to pay a reduced 

penalty of $15. The motion states that the reduction in penalty is justified 

because the operator had examined the majority of the seals. It is alleged 

that the violation was not as serious as it was considered to be by the 

Assessment Office because the mine has never been known to release any 

methane.. It is also claimed that respondent is entitled to maximum consideration for rapid abatement. Additionally, respondent has not previously 

violated section 75.313, according to Exhibit No. 45. 

. Citation No. 712635 alleged that respondent had violated section 75.200 

by failing to provide additional roof support for a return which is 

used to transport employees and supplies. The Assessment Office found the 

violation to have resulted from a high of ordinary negligence, to 

have been serious, to have involved a lack of good-faith effort to achieve 

compliance, and proposed a penalty of $305 which respondent has agreed to 

pay in full. The motion states that the Assessment Office properly evaluated 

the criteria in this instance and that the full amount proposed by the Assessment Office should be paid. 

Citation No. 712636 alleged that respondent had violated section 77.1104 

because accumulati-ons of grease, lubricants, and coal dust had been allowed 

to accumulate around the No. 1 belt conveyor drive located on the surface. 

The Assessment Off ice considered the violation to have resulted from ordinary 

negligence, to have been moderately serious, to have been abated in a normal 

manner, and proposed a penalty of $66, whereas respondent has agreed to pay 

a penalty of $15. The motion states that the reduced penalty is warranted 

because the accumulated materials did not create a hazard on the surf ace of 
of the mine and that respondent should be given credit for having achieved 

rapid abatement. Also,'Exhibit No. 45 shows that respondent has not previously violated section 77.1104. 

I find that the reasons hereinbefore given provide adequate bases for 

approving the parties' settlement agreement with respect to the violations 

alleged in Docket No. KENT 79-265. 

Docket No. KENT 79-370 

Citation No. 712093 was written under the unwarrantable failure provisions, or section 104(d)(l), of the Act. The citation. alleged that respondent had violated section 75.1100-l(a) because the water supply for the 

waterline running parallel to the belt conveyor was frozen. The Assessment 

Office waived the formula provided for in 30 C.F.R. § 100.3 and proposed 

a penalty of $500 on the basis of narrative findings emphasizing the criteria 

of negligence and gravity. 

Order No. 712097 was written, under section 104(d)(l) of the Act, about 

2 hours after the citation described above was issued. The order alleged 

that respondent had violated section 75.701 by failing to provide a frame 

ground for a power cable supplying power to a submersible pump located about 

90 feet outby the section tailpiece. The frame ground wire existed, but it 

had not been connected because the section foreman had just not taken the 

time required to connect the wire when he installed the pump. The Assessment Off ice proposed a penalty of $500 for this alleged violation after making 

narrative findings emphasizing the criteria of negligence and gravity. 

Order No. 712701 was written about 2 hours after the order described in 

the preceding paragraph was written. That order alleged that respondent had 

violated section 75.512 by failing to maintain the brakes on a batterypowered tractor in a safe operating condition. The order alleges that a 

rod had broken so that the master cylinder could not be actuated by the brake 

pedal. The inspector considered the violation to be serious since the tractor 

was used as a mantrip to take miners in and out of the mine. The Assessment 

Office proposed a penalty of $750 for this alleged violation after making 

narrative findings emphasizing the criteria of negligence and gravity. 

The three violations described above constitute all the violations for 

which penalties are sought by the Proposal for Assessment of Civil Penalty 

filed in Docket No. KENT 79-370. The motion for approval of settlement 

states that respondent has agreed to pay reduced penalties of $200, $165, 

and $369, respectively, for the violations alleged in the citation and two 

orders described above. The primary reason given for reducing the penalties 

proposed by the Assessment Office is that, in each case, respondent immedicorrected the violations. The inspector's sheets evaluating negligence, 

gravity, and good-faith abatement show that respondent stopped production 

and immediately corrected the deficiencies cited in the citation and orders. 

The operator's prompt action is not as impressive as it might be since two 

of the violations were cited in withdrawal orders which would have caused· 

respondent to stop production in any event. 
As I have explained above, however, the evidence presented at the 

hearing held as to some of the violations involved in this proceeding 

showed that respondent stopped production in order to achieve rapid compliance with respect to ordinary citations. There is no doubt, therefore, 

but that respondent is entitled to maximum consideration for achieving rapid 

compliance. The question which remains, of course, is whether rapid goodfaith compliance is a sufficient consideration to warrant approval of a 

settlement which reduces penalties proposed by the Assessment Office by 

58 percent solely on the ground that respondent rapidly complied with the 

mandatory safety standards after having been cited for violating them. 

Although the motion for approval of settlement does not point it out, 

Exhibit No. 45 shows that respondent has not previously violated either 

section 75.701 alleged in Order No. 712097 or section 75.1100-l(a) alleged 

in Citation No. 712093. Respondent has once before violated section 75.512 

alleged in Order No. 712701. Section 75.512 refers to a general requirement 

of taking equipment out of service if it is not in safe operating condition. 

A previous violation of section 75.512 does not mean that respondent has 

necessarily previously failed to provide brakes for its tractor used as a 

man trip. 

The third aspect of the violations which merit acceptance of the settlement agreement is that a small mine producing only 134 tons of coal per day 

is involved. Consequently, moderate penalties are appropriate under the 

criterion of the size of respondent's business. Finally, as I have noted 

in the first part of this decision, respondent's financial condition is such 

that it has requested more than the usual 30 days within which to pay the 

settlement penalties agreed upon in this proceeding. In such circumstances, 

four of the six criteria show that reduced penalties are appropriate with 

to the three violations alleged in Docket No. KENT 79-370. Therefore, I find that the settlement agreement submitted by the parties in 

Docket No. KENT 79-370 should be approved. 

Docket No. KENT 80-131 

The Proposal for Assessment of Civil Penalty filed in Docket No. KENT 80-

131 seeks assessment of civil penalties for 17 alleged violations. Citation 

No. 712712 alleged that respondent had violated section 75.1704 by allowing 

from 7 to 18 inches of water to accumulate in the main intake airway which 

was also designated as an escapeway. The Assessment Office found the violation to have resulted from ordinary negligence, to have been moderately 

serious, to have been abated in a normal manner, and proposed a penalty of 

$180, whereas respondent has agreed to pay a reduced penalty of $60. The 

motion for approval of settlement states in effect that the reduced penalty 

is warranted because the violation was not as serious as it was considered 

to be by the Assessment Office. 

It should be noted in connection with the 17 violations alleged in 

Docket No. KENT 80-131 that the Assessment Office has increased the assignment of penalty points under the criterion of history of previous violations 
to either 15 or 17 so that every penalty is assessed a minimum amount of 

$30 or $34 under that single criterion, whereas the Assessment Office 

evaluated all other violations alleged in this proceeding by assigning 

8 penalty points, or $16, to each violation under the criterion of history 

of previous violations. Exhibit No. 45 in this proceeding shows that 

respondent has not previously violated section 75.1704. Therefore, some 

reduction in the penalties proposed by the Assessment Office is justified 

with respect to the violation of section 75.1704 and as to most of the 

violations alleged in Docket No. KENT 80-131. 

Citation No. 712720 alleged that respondent had violated section 75.1100 

by failing to provide 240 pounds of rock dust at a temporary electrical 

installation. The Assessment Off ice considered the violation to have resulted from ordinary negligence, to have been moderately serious, to have 

been abated in a normal manner, and proposed a penalty of $106, whereas 

respondent has agreed to pay a reduced penalty of $35. The motion states 

in effect that a reduction in the penalty is warranted because the violation was not as serious as it was considered to be by the Assessment Office. 

Exhibit No. 45 shows that respondent has once before violated section 75.1100. 

The Assessment Office attributed $34 of its proposed penalty to the criterion 

of respondent's history of previous violations. I believe that no more 

tnan $10 should be attributed to respondent's history of previous violations 

when there is only one previous violation and a small operator is involved. 

Citation No. 713477 alleged that respondent had violated section 75.S23-2(c) 

because a force of more than 15 pounds was required to actuate the emergency 

deenergization switch, or panic bar on respondent's No. 1 tractor. The 

Assessment Office considered the violation to have resulted from ordinary 

negligence, to have been serious, to have been abated in a rapid manner, 

and proposed a penalty of $130, whereas respondent has agreed to pay a 

reduced penalty of $60. The motion states that a reduced penalty is warranted because a mechanic had been working on the panic bar to improve its 

responsiveness and that the violation was corrected in about 1-1/2 hours. 

In such circumstances, it is obvious that respondent's negligence was not 

as great as it was considered to be by the Assessment Office and a greater 

allowance for the operator's rapid abatement than was made by the Assessment 

Office is justified under the criterion of rapid abatement. 

Citation No. 713478 alleged that respondent had violated section 75.523-2(c) 

because a force of more than 15 pounds was required to actuate the panic bar 

on respondent's No" 2 tractor, The Assessment Office considered this second 

violation of section 75.523-2(c) to have resulted from ordinary negligence, 

to have been serious, to have been abated in a normal manner, and proposed 

a penalty of $140, whereas respondent has agreed to pay a reduced penalty 

of $60. The same reasons as those given in the preceding paragraph warrant 

a reduction in the penalty proposed by the Assessment Office. The Assessment 

Office assigned 10 penalty points under the criterion of negligence for the 

preceding violation of section 75.523-Z(c), but for some unexplained reason, 

assigned only 9 penalty points for the second violation of that section. 

1asf1 
Also, the Assessment Office failed to consider that the second violation was 

abated rapidly even though the mechanic succeeded in correcting both of the 

violations within a time period of less than 4 hours, even though the inspector had given respondent until the following morning within which to achieve 

compliance. The sort of erratic assessment procedure shown by the Assessment 

Office in this instance makes one wonder why we should write hundreds of pages 

to justify acceptance of penalties which are lower than those proposed by the 

Assessment Office. 

Citation No. 713479 alleged that respondent had violated section 75.1725 

because the brakes on the roof-bolting machine were not operative. The Assessment Office considered the violation to have resulted from ordinary negligence, 

to have been serious, to have been abated in a normal manner, and proposed a 

penalty of $195, whereas respondent has agreed to pay a reduced penalty of $65. 

The motion states in effect that the reduced penalty is warranted because 

the violation was less serious than it was considered to be by the Assessment 

Office. Additionally, Exhibit No. 45 shows that respondent has not previously 

violated section 75.1725, so the Assessment Office's assignmentof $30 under 

the criterion of history of previous violations is excessive. 

Citation No. 713943 alleged that respondent had violated section 75.604 

by failing to maintain four temporary splices on the coal drill's trailing 

cable so that they would exclude moisture. The Assessment Office considered 

the violation to have resulted from ordinary negligence, to have been serious, 

to have been abated in a normal fashion, and proposed a penalty of $114, whereas 

respondent has agreed to pay a reduced penalty of $37. The motion states in 

effect that the reduced penalty is warranted. because the violation was not as 

serious as it was considered to be by the Assessment Office. Also the Assessment Office attributed $30 of the penalty to respondent's history of previous 

violations, whereas Exhibit No. 45 shows that respondent has not previously 

violated section 75.604. 

Citation No. 713944 alleged that respondent had violated section 75.316 

because a water spray at the dumping point was inoperative. The Assessment 

Office considered the violation to have resulted from ordinary negligence, to 

have been moderately serious, to have been abated in a normal manner, and 

proposed a penalty of $106, whereas respondent has agreed to pay a reduced 

penalty of $20. The motion states in effect that a reduced penalty is justified because the violation was not as serious as it was considered to be by 

the Assessment Off ice. 

Citation No. 713946 alleged that respondent had violated section 75.517 

because power conductors were exposed at four different places in the trailing 

cable supplying power to the coal drill. The Assessment Office considered the 

violation to have resulted from ordinary negligence, to have been very serious, 

to have been abated in a normal manner, and proposed a penalty of $210 which 

respondent has agreed to pay in full. The motion states that the Secretary's 

position as to this violation is that it was very serious and resulted from 

a high degree of negligence and that the Assessmen~ Office appropriately 

determined that a relatively large penalty should be assessed in this instance. 

1367 
Citation No. 713947 alleged that respondent had violated section 75.512 

because the roof-bolting machine did not have operative headlights on either 

end. The Assessment Office considered the violation to have resulted from 

ordinary negligence, to have been moderately serious, to have been abated 

in a normal manner, and proposed a penalty of $106, whereas respondent has 

agreed to pay a reduced penalty of $25. The m~tion states in effect that 

a reduced penalty is warranted by the fact that the violation was not as 

serious as it was considered to be by the Assessment Office. 

Citation No. 713948 alleged that respondent had violated section 75.1100-2(e) 

because 240 pounds of rock dust had not been provided at a temporary electrical 

installation. The motion for approval of settlement requests that the Proposal 

for Assessment of Civil Penalty in Docket No. KENT 80-131 be dismissed to the 

extent that it seeks assessment of a penalty for this alleged violation 

because, if the hearing had been completed as to all alleged violations, the 

evidence would have shown that 240 pounds of rock dust were available at the 

temporary electrical installation here involved. That motion to dismiss will 

be granted as hereinafter ordered. 

Citation Uo. 713949 alleged that respondent had violated section 75.1100 

by having turned off the water valve through which water was supplied to 

the waterline running parallel to the belt conveyor. The Assessment Office 

considered the violation to have resulted from ordinary negligence, to have 

been moderately serious, to have been abated in a normal manner, and proposed 

a penalty of $114, whereas respondent has agreed to pay a reduced penalty of 

$38. The motion states that a reduced penalty is warranted because some 

person had turned off the water valve for the waterline without respondent's 

management knowing of it. The motion concludes, therefore, that the violation 

did not involve as much negligence and was not as serious as it was considered 

to be by the Assessment Office. 

Citation No. 713950 alleged that respondent had violated section 75.512 

because a rear light on a tractor was inoperative. The Assessment Off ice 

considered the violation to have resulted from ordinary negligence, to have 

been serious, to have been abated in a normal manner, and proposed a penalty 

of $140, whereas respondent has to pay a reduced penalty of $46. The 

motion states in effect that the reduced penalty is warranted because the 

violation was not as serious as it was considered to be by the Assessment 

Office. 

Citation No. 713951 that respondent had violated section 75.1100-2 

because it had failed to provide as much fire-fighting equipment for the 

working section as was required. The Assessment Office considered the violation to have resulted from ordinary negligence, to have been'moderately 

serious, to have been abated in a normal manner, and proposed a penalty of 

$130, whereas respondent has agreed to pay a reduced penalty of $42. The 

motion states in effect that the reduced penalty is warranted because the 

violation was not as serious as it was considered to be by the Assessment 

Office. 
Citation No. 714902 alleged that respondent had violated section 75.200 

because it had fai,led to provide a bar of suitable length for prying down 

loose materials from the roof. The Assessment Office considered the violation to have resulted from ordinary negligence, to have been very serious, 

to have been abated in a normal manner, and proposed a penalty of $240, 

whereas respondent has agreed to pay a reduced _penalty of $40. The motion 

states in effect that the violation did not involve nearly as much negligence or gravity as was attributed to it by the Assessment Office. It is 

noted that pry bars of suitable length are located throughout the section 

and sometimes are removed from the roof-bolting machine where one is normally 

kept. The fact that respondent achieved compliance by providing an adequate 

bar within 10 minutes after the violation was cited shows that bars were 

readily available and indicates that respondent was entitled to a maximum 

reduction of penalty points under the criterion of rapid abatement. 

Citation No. 714903 alleged that respondent had violated section 75.503 

by failing to maintain a shutt'le car in permissible condition-. The Assessment 

Off ice considered the violation to have resulted from ordinary negligence, 

to have been serious, to have been abated in a normal manner, and proposed 

a penalty of $160, whereas respondent has agreed to pay a reduced penalty 

of $53. The motion states in effect that the reduced penalty is warran~ed 

because the violation was not as serious as it was considered to be by the 

Assessment Office in view of the fact that no methane has ever been detected 

in respondent's mine. 

Citation No. 714904 alleged thcrt respondent had violated section 75.503 

because it had failed to maintain the roof-bo.lting machine in a permissible 

condition. The Assessment Office considered the violation to have resulted 

from ordinary negligence, to have been moderately serious, to have been abated 

in a normal manner, and proposed a penalty of $122, whereas respondent has 

agreed to pay a reduced penalty of $40. The motion states in effect that 

the reduced penalty is warranted for the same reasons given in the preceding 

paragraph. 

Citation No. 714878 alleged that respondent had violated section 75.200 

because several timbers had been dislodged and not replaced along the mantrip 

and haulage roadway. The Assessment Office considered the violation to have 

resulted from ordinary negligence, to have been serious, to have been abated 

in a normal manner, and proposed a penalty of $180, whereas respondent has 

to pay a reduced of $59. The motion states in effect that 

the reduced penalty is warranted because the violation was not as serious 

as it was considered to be by the Assessment Office. The inspector's statement evaluating negligence and gravity shows that he thought the violation 

was very serious. 'The only basis for allowing a reduction in the penalty of 

$180 proposed by the Assessment Office in this instance is that a small operator is involved and that its financial condition is poor. I am approving 

the settlement agreements in this consolidated proceeding largely for the 

reasons stated in the preceding sentence. 
It should be noted that when evidence is introduced at a hearing by 

both ies, an evaluation of the criteria based on that evidence becomes entirely different from the routine application of the formula 

described in 30 C.F.R. § 100.3. The testimony of the various witnesses 

provides the occurrence of violations with many nuances of negligence 

and gravity which are not present apart from the impact of oral descriptions of events and responses by witnesses to detailed questions. The 

hear in this proceeding demonstrates the effect that a hearing has on 

penalti.es determined on the basis of a formula as opposed to penalties 

based o.n testimony given at a hearing. The total penalties of $538 proposed by the Assessment Office for the eight contested violations which 

were the subject of the hearing were reduced in my bench decisions to a 

total of $246, or only 45 percent of the total amount proposed by the 

Assessment Office. The contested violations were not chosen by respondent 

as being those as to which the inspectors might be especially vulnerable. 

The eight contested violations just happened to be the first eight violations alleged by the Proposal for Assessment of Civil Penalty filed in 

Docket No. KENT 79-264. 

The 51 violations as to which settlements were reached involve a 

reduction in the total penalties of $7)025 proposed by the Assessment 

Office to $2,850, or only 40 percent of the amount originally proposed by 

the Assessment Office. The fact that the settlement amount is very close 

to the result which occurred with respect to the hearing held as to the 

contested violations makes me believe that the settlement agreements 

achieved a proper result in this proceeding with a great saving in hearing 

time and expense to both the Government and to respondent. 

\VHEREFORE, for the reasons herinbefore given) it is ordered: 

(A) The motion for approval of settlement filed on December 29, 1980, 

is ed and the settlement agreements in each docket are approved. 

(B) r;•.:: r.10tions for dismissal of the Proposals for Assessment of Civil 

Penalty are granted and the Proposals for Assessment of Civil Penalty in 

Docket Nos. KENT 79-264, KENT 79-265, and KENT 80-131 are dismissed to the 

extent that they seek assessment of civil penalties for the violations listed 

below: 

Docket No KENT 

Citation No. 712096 2/13/79 § 17 .1725(a) (Tr. 80) 

Docket No. KENT 79-265 

Citation No. 712729 2/28/79 § 77 .1301 

Citation No. 712625 2/27 /79 § 75.400 

Citation No. 712627 2/27/79 § 75.512 
Docket No. KENT 80-131 

Citation No. 713948 5/15/79 § 75.1100-2(e) 

(C) The Proposal for Assessment of Civil Penalty filed in Docket No. 

KENT 79-264 is dismissed to the extent that it seeks assessment of a civil 

penalty for a violation of section 75.303 because the Secretary failed to 

prove that a violation of section 75.303 occurred (Tr. 61). 

(D) Pursuant to the settlement agreements and my bench decisions, supra, 

re5pondent shall, within 90 days from the date of this decision, pay civil 

penalties totaling $3,096.00, of which an amount of $246.00 is attributable 

to penalties assessed in my bench decisions and the remaining amount of 

$2,850.00 is attributable to the settlement agreements hereinbefore described 

and approved. The penalties are allocated to the respective violations 

as follows: 

Docket No KENT 

CONTESTED 

Citation No. 712092 2/13/79 § 75.517 . .................... $ 1.00 

Citation No. 712094 2/13/79 § 75.303 (Dismissed) . ........ Citation No. 712095 2/13/79 § 75.1725 . ................... 50.00 

Citation No. 712096 2/13/79 § 75.1725(a) (Dismissed) . .... Citation No. 712098 2 /13 /79 § 75.523 . .................... 60.00 

Citation No. 712099 2/13/79 § 75.400 . .................... 35.00 

Citation No. 712100 2/13/79 § 75.601 . .................... 60.00 

Citation No. 712703 2/13/79 § 75.200 . .................... 40.00 

Total Penalties Assessed in Bench Decisions .............. $ 246.00 

SETTLEMENTS 

Docket No. KENT 

Citation No. 712702 2/13/79 § 75.523 ...O<>Oll'•O"'<l'DOOO•••ooo1to $ 106.00 

Citation No" 712704 2/13/79 § 75.517 0 ................... ' ••• 90.00 

Citation No. 712705 2/13/79 § 75.1722(b) . ................ 60.00 

Citation No. 712706 2/13/79 § 75.313 . .................... 17.00 

Citation No. 712707 2/13/79 § 75.604 •••••O•••••o•••ee•••O 30.00 

Citation No. 712708 2/13/79 § 75.604 o•o•o••••OOOt>OO<il••••<> 30.00 

Citation No. 712709 2/13/79 § 75.200 lll01>oeoo.,.•o<>•OOO•o•oOO 30.00 

CitatiO'n No. 712710 2/13/79 § 75.503 "' .................... 20.00 

Citation No •. 712711 2/13/79 § 75.202 ..................... 30.00 

Citation No" 712714 2/13/79 § 75.202 ci•eooooo<>GOO•o••O•ooo 30.00 

Citation No. 712715 2/13/79 § 75.512 • 0 •• 0 .................. 17.00 

Citation No. 712716 2/13/79 § 75.316 e 0 II 0 0 * 0 • e e 0 0 0 0 • 0 0 ••• e 12.00 

Total Settlement Penalties in Docket No. KENT 79-264 . .... $ 472.00 
Dcckc.t ~To. KENT 80-265 

Citation No. 712717 2/13/79 § 75.1202 ••.••••.•••••••.•••• 

Citation No. 712718 2/13/79 § 75.316 ••••.••..•••..•••.••• 

Citation No. 712724 2/22/79 § 75. 516-1 .................. . 

Citation No. 712729 2/28/79 § 77.1301 (Dismissed) ......•• 

Citation No. 712725 2/23/79 § 75.503 ...•..••••.•.••••...• 

Citation No. 712726 2/23/79 § 75.703 •...••.•......•..•••. 

Citation No. 712727 2/23/79 § 75.1303 •.•••..•......•..•.. 

Citation No. 712728 2/23/79 § 75.1704 •...••...........••. 

Citation No. 712625 2/27/79 § 75.400 (Dismissed) .•.••.... 

Citation No. 712626 2/27 /79 § 75.1306 ................... . 

Citation No. 712627 2/27/79 § 75.512 (Dismissed) •.•...... 

Citation No. 712628 2/27/79 § 75.1704-2(d) •••....•......• 

Citation No. 712629 2/27 /79 § 75.1704 ................... . 

Citation No. 712630 2/27/79 § 75.200 .................... . 

Citation No. 712631 2/27/79 § 77.1001 ................... . 

Citation No. 712632 2/27 /79 § 77 .1102 ................... . 

Citation No. 712634 2/28/79 § 75.303 ••....•.........•.••. 

Citation No. 712635 2/28/79 § 75.200 .................... . 

Citation No. 712636 2/28/79 § 77.1104 .•..•.••............ 

Total Settlement Penalties in Docket No. KENT 79-265 ...•. 

Docket No. KENT 79-370 

Citation No. 712093 2/13/79 § 75.1100-l(a) •.•............ 

Order No. 712097 2/13/79 § 75.701 •.•.•..•..••••.•.••••..• 

Order No. 712701 2/13/79 § 75.512 •..•....•..•........••.. 

Total Settlement Penalties in Docket No. KENT 79-370 •••.• 

Docket No. KENT 80-131 

Citation No. 712712 3/13/79 § 75.1704 ................... . 

Citation No. 712720 3/13/79 § 75.1100 .•............•..... 

Citation No. 713477 5/15/79 § 75.523-2(c) •..•.........•.. 

Citation No. 713478 5/15/79 § 75.523-2(c) .....•.•....•... 

Citation No. 713479 5/15/79 § 75.1725 ....•.••.•....•..••• 

Citation No. 713943 5/15/79 § 75.604 ...••.•..••..•..•..•. 

Citation No. 713944 5/15/79 § 75.316 .................... . 

Citation No. 713946 5/15/79 § 75.517 ••..•....•..•...•.•.• 

Citation No. 713947 5/15/79 § 75.512 ..•...••••....••....• 

Citation No. 713948 5/15/79 § 75.1100-2(e) (Dismissed) •.• 

Citation No. 713949 5/15/79 § 75.1100 ••••••..••.•••••.. , • 

Citation No. 713950 5/15/79 § 75.512 ••••.•••••••••••••••• 

Citation No. 713951 5/15/79 § 75.1100-2 ••.••.•••••••••••. 

Citation No. 714902 5/15/79 § 75.200 .................... . 

Citation No .. 714903 .S/15/79 § 75.503 ••.•.•••.••.••.•••••• 

Citation No. 714904 5/15/79 § 75.503 .••••..••••••••••••.• 

Citation No. 714878 5/15/79 § 75.200 ••.•.••.••••••.•••••• 

Total Settlement Penalties in Docket No. KENT 80-131 ••••• 

Total Settlement Penalties in This Proceeding •••••..••••• 

Total Civil Penalties Assessed in This Proceeding •••••.•• 

$ 5.00 

17.00 

100.00 

21.00 

75.00 

30.00 

35.00 

30.00 

13.00 

13.00 

50.00 

25.00 

5.00 

15.00 

305.00 

15.00 

$ 754.00 

$ 200.00 

165.00 

369.00 

$ 734.00 

$ 60.00 

35.00 

60.00 

60.00 

65.00 

37.00 

20.00 

210.00 

25.00 

38.00 

46.00 

42.00 

40.00 

53.00 

40.00 

59.00 

$ 390.00 

$2,850.00 

$3,096.00 

~C.~t;j!fo Richard C. Steffey ~ Administrative Law Judge 1372 (Phone: 703-756-6225) 
Distribution: 

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

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Herman W. Lester, Esq., Attorney for Eddie Coal Company, Combs and 

Lester, PSC, P.O. Drawer 551, 207 Caroline Avenue, Pikeville, KY 

41501 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th, FLOOR 

HAY 29 1981 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DAVIS COAL COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. WEVA 80-663 

A.O. No. 46-02208-03046 

Docket No. WEVA 80-624 

A.O. No. 46-02208-03044 

Docket No. WEVA 80-635 

A.O. No. 46-02208-03045V 

Docket No. WEVA 80-589 

A.O. No. 46-02208-03040 

Marie No. 1 Mine 

DECISION AND ORDER 

Relying heavily on the Commission's prior approval of settlements 

that permitted a 90% reduction in penalties, 1/ the parties initially 

proposed settlement of three o.f the captioned-matters at a 25% reduction. 

This was rejected on the ground that the operator's history of prior 

violations shows token penalties are no deterrant to serious violations 

by this operator 2/ and because Commissioner Lawson, Judge Melick 

and this trial judge found Davis' claims of financial impairment 

unpersuasive. See, Order Denying Settlement, issued November 12, 1980. 

Compare, Davis Coal Company, 2 FMSHRC 3053, 3067-68 (Melick, J. 1980); 

Davis Coal Company, 2 FMSHRC 18 (Kennedy, J. 1980); Davis Coal Company, 

2 FMSHRC 619, 620 (Dissenting Opinion of Lawson, Commissioner). 

The matter is before me now on the operator's unopposed request 

to reconsider my order denying the motion to approve settlement 

together with renewed motion to approve settlement of the 21 violations 

charged in all four of the captioned matters at 90% of the amounts 

initially assessed. 

Davis Coal Company, 2 FMSHRC 619 (1980). 

2/ As I have noted, "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 in business only those mining operations that promote mine 

safety." Davis Coal Company, supra, 2 FMSHRC 18, n. 1. 

1374 
As the record shows, prior to 1980 Davis Coal Company enjoyed 

what amounted to a prescriptive right to violate the Act with impunity. 

This was based on its ability to persuade MSHA that a small operator who 

exploits his mineral leases through the cover of a proprietary, nonprofit corporation is per se a candidate for a substantial (usually 90%) 

remission of the penalties assessed. And this, despite the fact that the 

proprietors (Mr. and Mrs. Davis) paid themselves handsome salaries and 

provided, tax free and at the expense of the corporation, all the 

prerequisites and amenities usually associated with the truly rich. 

This is not to suggest there is anything improper or illegal about the 

Davis operation. Only that an uncritical acceptance of Davis' plea 

of poverty has served to continue in business and to encourage what is 

clearly a marginally safe operation. In this connection, Mr. Davis 

has furnished for the record his personal pledge to give immediate 

attention to correction of the many conditions and practices in his 

operation that result in serious safety violations and "to significantly 

reduce future MSHA violations". This statement will be made a part of 

the record in this proceeding and will be available as a measure of 

Mr. Davis' good faith efforts to achieve compliance in future proceedings. 

Based on an independent evaluation and de novo review of the 

circumstances, including an evaluation of the-operator's solvency, and 

his personal pledge to improve compliance, I find the settlement proposed 

is in accord with the purposes and policy of the Act. To have brought 

Davis to the point where he is willing to settle on the basis of payment 

of 90% i~stead of a reduction of 90% reflects a commendable improvement 

in attitude on his part and a victory for more effective enforcement 

on the Commission's part. Davis still has a long way to go, but at 

least for the purpose of this settlement, I am persuaded he is sincere 

and intends to improve significantly his record of compliance. 

A final word is warranted with respect to the financial data furnished. 

A careful examination of the operator's comparative statement of assets 

and liabilities for 1979 and 1980 as well as its comparative statement 

of income and expenses for the same period dramatically demonstrates the 

fallacy of the claim that the absence of profit or taxable income is a 

reliable indicator of a small operator's inability to pay substantial 

penalties and still continue in business. Davis has successfully operated 

without showing a profit since 1976. The fact that the company apparently 

walks on water is explained by its ability to finance its high debt load 

with a healthy cash flow and an extended line of credit from the Bank 

of Pikeville, its silent partner. 

Thus, the comparative statements and tax returns both corporate 

and individual show the principal stockholder and his wife paid themselves 

salaries in 1980 totalling $75,000, have outstanding non-interest bearing 

loans totalling almost $250,000 and own stock in another closely held 

corporation worth almost $140,000. The profits or earnings retained by 

the corporation to avoid the tax on dividends increased from $563,761 

in 1979 to $867,499 in 1980. This resulted in almost doubling the net 
worth of the corporation which as of December 31,. 1980 was $842,498. 

A measure of the success of the technique of using the proprietary 

corporation as an individual tax shelter is shown by the fact that the 

Davis' joint federal tax return shows they took no individual deductions 

against a taxable income of $71,261 in 1979. 

The comparative statements also show the operator has a cash flow 

of almost $3,000,000 a year, that itslong term liabilities are only 

$260,533 and that the book value of its fixed assets are $940,168. 

Finally a comparison of Davis' cash flow to its total debt shows a 

favorable ratio of 1.5 to 1. ]./ 

I conclude, therefore, that the Davis Coal Company is a highly 

solvent and profitable operation for its owners and the Bank and merits 

no more or less consideration in the assessment of penalties than any of 

its highly profitable publicly held competitors. 

The premises considered, it is ORDERED that the motion to approve 

settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that the 

penalties be allocated on the basis of 

assessed and that the operator pay the 

agreed upon, $3,720, within forty-five 

of this order. Finally, it is ORDERED 

captioned matters be DISMISSED. 

Accounting research shows this is one of the most reliable 

predictors of financial success or failure. Beaver, "Financial Ratios 

As Predictors of Failure", Supp. to Vol. 4, Journal of Accounting 

Research, pp. 71-127 (1966). 

137h 
Distribution: 

Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Edward Fitch, Esq., U.S. Department of Labor, Offic~ of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Paul Pinson, Esq., P.O. Box 440, Williamson, WV 25661 (Certified Mail) 

1377 

*U S GOVERNMENT PRINTING OFFICE: 1981 341·638/4356