DECEMBER 1979 

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

Secretary of Labor, MSHA. v. Island Creek Coal Co., KENT 79-129; 

(Judge Moore, November 29, 1979). 

Maben Energy Corp. v. Secretary of Labor, MSHA., WEVA 79-123-R; 

(Judge Melick, November 30, 1979). 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of 

ARNOLD J. SPARKS, JR. 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 6, 1979 

Docket No. WEVA 79-148-D 

ALLIED CHEMICAL CORPORATION 

DECISION 

The decision of the administrative law judge is reversed; his. order 

is vacated, and the complaint is dismissed. Helen Mining Co., No. PITT 

79-il-P (November 21, 1979). See also Kentland-Elkhorn Coal Corp., 

No. PIKE 78-399 (November 30, 1979(1(/1.,vy,J. ((_~ 

Jero e R. Waldie, Chairman 

t::A--?M~b ·-~ < 

Richard V. Backley, Commissioner f 

"-\\lli~\lO_tA Marian Pearlman \(_q O\~J!ill.M Nease, Commissioner ~ 

Commissioners Jestrab and Lawson, dissenting: 

79-12-1 

1947 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

MAGMA COPPER COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 10, 1979 

Docket No. DENV 78-533-M 

UNITED STEELWORKERS OF AMERICA 

DECISION 

The question in this case is whether a mine operator is required to 

pay only one representative of miners for time spent accompanying an 

inspector when the inspection is divided into two or more parties to 

simultaneously inspect different parts of a mine. For the reasons that 

follow, we find that one miners' representative in each inspection party 

must be paid for time spent accompanying an inspector who is engaged in 

an inspection of the mine "in its entirety" under 103(a) of the Federal 

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

Magma Copper Company oper~tes a large copper mine complex near San 

Manuel, Arizona. The complex includes an underground copper mine and 

milling facilities. On July 26, 1978, two inspectors from the Department 

of Labor's Mine Safety and Health Administration arrived at the complex 

to continue an inspection of the milling facilities that had begun the 

previous week under section 103(a) of the 1977 Act. That section requires 

that each surface mine be inspected in its entirety at least two times a 

year and that each underground mine be inspected in its entirety at least 

four times a year. 

Magma's milling facilities consist of several buildings and other 

structures. The milling operation includes a receiving bin, a crushing 

facility, a concentrator building, a molybdenum plant, and a filter 

plant. One building is three floors high and a quarter mile long. The 

structures in the complex are as much as seven miles apart. 

To expedite inspection of the milling facilities, the inspectors 

formed two inspection parties to visit different work sites. They told 

Magma officials that they would like a miners' representative to accompany 

each of them. Magma officials agreed to assign two miners' representatives 

to accompany the inspectors but they stated that Magma would pay only 

one of them. Only one miners' representative accompanied an inspector. 

79-12-3 

1948 
The other inspector was not accompanied by a miners' representative because 

the inspectors were reluctant to ask a miner to accompany them without a 

guarantee that he would suffer no loss of pay. 

The inspectors examined different milling facilities. Their 

activities took them about 6 to 7 miles apart, and consumed several hours. 

They did not see each other again until they returned to one of Magma's 

offices to perform some post-inspection paperwork. 

Because of Magma's refusal to pay two miners' representatives for 

time spent accompanying the inspectors, a citation under section 104(a) 

of the 1977 Act that alleged a violation of section 103(f) was issued. 

When Magma again declined to pay two miners' representatives, one of the 

inspectors issued a withdrawal order for failure to abate under section 

104(b). The order did not require the withdrawal of any miners from 

mining operations. Magma then filed a notice of contest under section 

105(d) of both the citation and the withdrawal order. 

Administrative Law Judge Lasher conducted a hearing and decided 

that because of the language of section 103(f), 1/ only one miners' 

representative was entitled to be paid for participating in the inspection. 

1/ Section 103(£) of the 1977 Act reads as follows: 

[l] Subject to regulations issued by the Secretary, a representative 

of the operator and a representative authorized by his miners shall 

be given an opportunity to accompany the Secretary or his authorized 

representative during the physical inspection of any coal or other 

mine made pursuant to the provisions of subsection (a), for the 

purpose of aiding such inspection and to participate in pre- or 

post-inspection conferences held at the mine. [2] Where there 

is no authorized mine'r representative, the Secretary or his 

authorized representative shall consult with a reasonable 

number of miners concerning matters of health and safety in such 

mine. [3] Such representative of miners who is an employee of 

the operator shall suffer no loss of pay during the period of his 

participation in the inspection made under this subsection. [4] 

To the extent that the Secretary or authorized representative of 

the Secretary determines that more than one representative from 

each party would further aid the inspection, he can permit each 

party to have an equal number of such additional representatives. 

[5] However, only one such representative of miners who is an 

employee of the operator shall be entitled to suffer no loss of 

pay during the period of such participation under the provisions 

of this subsection. [6] Compliance with this subsection shall 

not be a jurisdictional prerequisite to the enforcement of any 

provision of this Act. [Sentence numbers and emphasis added.] 

1949 
Specifically, he held: 

Where a single regular "entire mine" inspection is 

being conducted pursuant to section 103(a) of the 

(1977] Act by two or more inspectors, only one 

representative of miners is entitled to participate 

in the inspection without loss of pay even though 

the group conducting the inspection is divided 

into two or more parties to simultaneously inspect different parts of the mine. 

Judge Lasher believed that this interpretation of the walkaround 

pay provision was necessary because section 103(f) provides in part that 

"only one such representative of miners who is an employee of the operator 

shall be entitled to suffer no loss of pay during the period of such 

participation ••• " He consequently vacated the citation and withdrawal 

order. On April 11, 1979, the Commission granted petitions for discretionary 

review filed by the Secretary of Labor and the United Steelworkers of 

America. On July 31, 1979, we heard oral argument. 

We do not think it is enough to rely, as the administrative law 

judge did, only upon the literal language of section 103(f). The literal 

words of a statute may not be the best guide to the legislative purpose 

when they appear to conflict with the congressional purpose for creating 

a right or produce a result that is illogical. See Central Hanover 

Bank & Trust Co. v. Commissioners 159 F.2d 167, 169 (2d. Cir. 1947)(per 

L. Hand, J.); United States v. American Trucking Associations, 310 U.S. 

534, 543 (1940). J:.../ 

'!:_/ In our view, the legislative history does not specifically address the 

question before us. Magma.disputes this. It claims that a statement made 

by Senator Javits on the Senate floor directly addresses this issue and 

authoritatively resolves it in Magma's favor. We disagree. 

During the Senate debate on the bill from which the 1977 Act was largely 

derived, Senator Helms introduced an amendment to strike out the third and 

fifth sentences of what is now section 103(f), and thereby eliminate the 

right to walkaround pay. 1977 Legis. Hist. at 809, 812. Senator Javits, 

speaking in opposition to the amendment of behalf of the bill's managers, gave 

several reasons why the amendment should be defeated. Id. at 1054-1056. 

During his lengthy remarks, he commented that the bill required that only 

one miners' representative be paid. Id. at 1055-1056. Magma believes that 

Senator Javits' comment shows that section 103(f) was designed with multiple 

inspection parties in mind. We do not. Although Senator Helms had briefly 

mentioned multiple :inspection parties, Senator Javits' extremporaneous reremarks neither bear upon nor mention multiple parties. The Senator seems to 

have spoken only to the common and simple situation of one or more inspectors 

forming only one inspection party. We therefore conclude that the legislative 

history does not speak directly to the issue before us. 

1950 
The language of section 103(f) conveys the impression that Congress 

expected that one inspection party will visit all parts of the mine and 

one paid miners' representative will therefore fully participate in the 

inspection. The walkaround pay limitation appears designed to minimize 

the operator's economic burden by requiring him to pay only one miner 

who is in that one inspection party. 

However, several inspectors are often sent into large mines to 

expedite inspection of the entire mine. l/ Providing walkaround pay 

only to one miners' representative when several inspection parties are 

inspecting the entire mine would make the right to walkaround pay 

dependent on the number of inspectors sent to the mine. We agree with 

the Secretary that it is doubtful that Congress intended this illogical 

result. This operator has made no showing in this case that the presence 

of two inspection parties prejudiced him. 

In our view, the Congressional purpose for limiting walkaround pay 

would not be frustrated by requiring that one miner in each inspection 

party be paid. We share the Secretary's judgment that the cost to an 

operator of walkaround pay when two inspection parties are formed should 

roughly approximate the cost when only a single party is formed because 

the number of hours spent by paid miners' representatives in the inspection 

should be about the same in both cases. We also believe that the constructi9n of 103(f) urged by Magma would frustrate the purposes for 

which Congress granted a right to walkaround pay. Walkaround pay was 

designed to improve the thoroughness of mine inspections and the level 

of miner safety consciousness. The first sentence of section 103(f) 

expressly states that the purpose of the right to accompany inspectors 

is to aid the inspection. The Senate committee report on S. 717, 95th 

Cong., 1st Sess. (1977), the bill from which section 103(f) is derived, 

explained that the purpose of the right to accompany an inspector is to 

assist him in performing a "full" inspection, and "enable miners to 

understand the safety and ·health requirements of the Act and [thereby] 

enhance miner safety and health awareness." S. Rep. No. 95-181, 95th 

Cong., 1st Sess., at 28-29 (1977), reprinted in Senate Subcommittee on 

Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 616-617 

(1978) ["1977 Legis. Hist."]. The purpose of the right to walkaround 

ll A report by the National Coal Association and the Bituminous Coal Operators 

Association that was submitted to the Labor Standards Subcommittee of the 

House Committee on Education and Labor states: 

Some coal mines are very large: one mine, for instance, is the 

size of the island of Manhattan underground. That mine, along 

with many others, employs several hundred miners who work in 

separate geographic underground areas at many diverse tasks 

under varying degrees of supervision. It is common for miners 

to have to travel an hour or more underground just to get to 

their work areas from the mine entrance. Thus, a "complete 

inspection" of an entire mine can take a very long time. 

NCA, BCOA, "Federal Coal Mine Health and Safety Act 1969: A Constructive 

Analysis with Recommendations for Improvements", at 30 (1977). 

1951 
pay granted by section 103(f) is also clear: 

exercise their right to accompany inspectors. 

to encourage miners to 

Id. !!_/ 

It was Congress' judgment that a failure to pay miners' representatives 

to accompany inspectors would discourage miners from exercising their walkaround rights, and that the resulting lessening of participation would 

detract from the thoroughness of the inspection and impair the safety and 

health consciousness of miners. If only one of the inspectors would be 

assured of receiving the assistance of a miners' representative when 

conducting a 103(a) inspection of the mine, only a part of the mine .would 

be likely to receive the kind of inspection that Congress expected the 

walkaround pay right to help assure. By providing a more efficient 

deployment of inspectors through multiple inspection parties, the 

Secretary should not be denied the assistance of the miner. Neither 

should the miner be denied the right to participate in such inspection 

with pay. 

!!_/ The Senate committee report states: 

Section 104(e)[l03(f) in the final bill] contains a provision based 

on that in the Coal Act, requiring that representatives of the 

operator and miners be permitted to accompany inspectors in order 

to assist in conducting a full inspection ••••• The opportunity 

to participate in pre-or post-inspection conferences has also been 

provided. Presence of a representative of miners at opening conference helps miners to know what the concerns and focus of the 

inspector will be, and attendance at closing conference will 

enable miners to be fully apprised of the results of the inspecti6n. 

It is the Committee's view that such participation will enable 

miners to understand the safety and health requirements of the 

Act and will enhance miner safety and health awareness. To 

encourage such miner participation, it is the Committee's 

intention that the miner who participates in such inspection 

and conferences be fully compensated by the operator for time 

thus spent. To provide for other than full compensation would 

be inconsistent with the purpose of the Act and would unfairly 

penalize the miner for assisting the inspector in performing 

his duties •. •,.• •• 

1952 
Accordingly, the judge's decision is reversed, and the citation and 

withdrawal order are affirmed. 

I' 

!., (, :'"'"~ ~~~ Jerome R. Waldie, Chairman 

1953 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD BEN COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

December 12, 1979 

Docket No. VINC 74-11 

IBMA 75-52 

DECISION 

This proceeding arises under the Federal Coal Mine Health and 

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

1969 Act"], and involves the inte·rpretation of sections 304(a) and 

104(c)(2) of that Act. For the reasons discussed below, we hold that a 

violation of section 304(a) occurs when an accumulation of combustible 

materials exists in active workings, and that Old Ben tmwarrantably 

failed to comply with the standard in this case. 

On July 13, 1973, a Mining Enforcement and Safety Administration 

(MESA) inspector issued a withdrawal order pursuant to section 104(c)(2) 

for an alleged violation of 30 CFR §75.400. That regulation, which is 

identical to section 304(a) of the 1969 Act, provides: 

Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active workings or 

on electric equipment therein. 1./ 

The withdrawal order alleged in part: 

Accumulations of loose coal and coal dust were observed from the 8 

south belt drive to 20 feet outby the 710 survey mark, a distance 

of approximately 925 feet. The accumulations of loose coal and 

coal dust ranged in depth of from 2 to 14 inches on the east side 

of the belt and from 2 to 6 inches on the west side. 2.:./ 

The order was terminated on July 16, 1973, after the conditions cited 

were abated. 

1./ Section 304(a) of the Federal Mine Safety and Health Act of 1977, 

30 U. S .C .A. §801 et ~· (1978) ["the 1977 Act"], is identical. 

Y The order also stated that "the violation is of such a 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," and that the cited violation "is 

similar to the violation of the mandatory health or safety standard 

which resulted in the issuance of Withdrawal Order No. 1 M.C. on October 

26, 1972, and no inspection of the mine has been made since such date 

which disclosed no similar violation." 

79-12-4 

1954 
Old Ben filed an application for review of the withdrawal order. 

In his decision .of March 19, 1975, Administrative Law Judge Rampton 

vacated the order. He held that: (1) MESA failed to prove all of the 

elements of a violation of 30 CFR §75.400; (2) the "conditions upon 

which the Order is premised were not such as could significantly and 

substantially contribute to the cause and effect of a mine safety or 

health hazard"; and (3) there was no unwarrantable failure to comply 

with the standard. MESA appealed the judge's decision to the Interior 

Department's Board of Mine Operations Appeals, contesting all three of 

these holdings. 

On August 17, 1977, the Board affirmed the judge's decision. 8 

IBMA 98. It held that the elements of a violation of 30 CFR §75.400 

are: (1) an accumulation of combustible materials, (2) the operator's 

knowledge, actual or constructive, that such accumulations existed, and 

(3) the failure of the operator to clean up or undertake to clean up 

such accumulations "within a reasonable time after discovery, or, within 

a reasonable time after discovery should have been made." Id. at 114-

115. It held, as had the judge, that MESA had proven only the first of 

these three elements. Therefore, it affirmed the judge's vacation of 

the order because MESA had not established the underlying violation. 

The Board did not reach the "significant and substantial" or unwarrantable failure issues because "disposition of the first issue obviates the 

necessity of reaching the other· .••• issues •••. " Id. at 106-107. The 

Board denied MESA's motion for reconsideration. -S--IBMA 196 (1977). 

On September 20, 1977, the United Mine Workers of America filed a 

petition for review of the Board's decision with the Court of Appeals 

for the District of Columbia Circuit (No. 77-1840). On November 9, 

1977, Congress passed the 1977 Act. It transferred enforcement functions 

from the Secretary of Interior to the Secretary of Labor effective March 

9, 1978. The Secretary of Labor then successfully moved to substitute 

himself for the Secretary of Interior as respondent, and filed a brief 

urging reversal of the Board's decision and remand to the Connnission. 

Old Ben did not file a brief. In an order issued on January 16, 1979, 

the Court observed that no party supported the Board's decision. Without 

deciding the merits, it remanded the case to the Connnission "for further 

proceedings." 

The issues before us are: 

(1) What are the elements of a violation of 30 CFR §75. 400? 

(2) Did Old Ben violate the standard? 

1955 
(3) If Old Ben violated the standard, was the violation 

"caused by an unwarrantable failure" to comply with such standard? 

(4) If Old Ben violated the standard, is a finding that the 

violation was "of such a nature as could significantly and substantially contribute to the cause or effect of a mine safety or 

health hazard" required to issue a withdrawal order under section 

104(c)(2) of the 1969 Act? 

The elements of a violation of 30 CFR §75.400 

The Board coli.eluded that the standard was intended "to minimize, 

rather than eliminate, accumulations of combustible materials so that 

they would simply be less likely to present a safety hazard source." 8 

IBMA at 108-109. The "presence or existence of an accumulation of 

combustible materials in active workings is [not] sufficient by itself, 

to establish a violation," because "the crux of the violation" is the 

operator's "failure to clean up, or undertake to clean up, an accumulation 

of combustible material which is already in existence." Id. at 112. 

The Board held, therefore, that there were three elements necessary to 

prove a violation of 30 CFR §75.400: (1) an accumulation of combustible 

materials; (2) the operator's actual or constructive knowledge of the 

accumulations; and (3) the operator's failure to undertake cleanup 

within a reasonable time. Id. at 114-115. 

In applying the standard it had fashioned to the facts of this 

case, the Board concluded that: 

[t]he evidence ••• conclusively established that although most of 

the combustible materials did exist in the subject mine as alleged 

in the order ••• , as soon as the operator became aware of the cited 

conditions, enough employees were promptly dispatched to abate the 

conditions within a reasonable time. The evidence further clearly 

established that the operator was following a regular procedure 

reasonably calculated to alert its personnel to the hazards posed 

by accumulations of combustible materials. Consequently, there was 

no permitting of an accumulation by the operator and no violation 

of the subject standard. [Id. at 119.] 

We disagree with the Board's interpretation of the standard. The 

language of the standard, its legislative history, and the general 

purposes of the Act all point to a holding that the standard is violated 

when an accumulation of combustible materials exists. 

One of the primary purposes of Congress in passing the Act was to 

prevent the loss of life and serious injuries arising from explosions 

and fires in underground mines. A precipitating factor in consideration 

and passage of the 1969 Act was the tragic mine explosion at Farmington, 

West Virginia on November 20, 1968, that killed 78 miners. 1./ Congress 

3/ S. Rep. 91-411, 9lst Cong., 1st Sess., 6-7, 8 (1969), and H. Rep. 

91-563, 91st Cong., 1st Sess., 1-2, 6 (1969), reprinted in Senate Subco'l'iiffiittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 

1st Sess., Legislative History of the Federal Coal Mine Health and 

Safety Act of 1969, Part I, at 132-133, 134, 1031-1032, 1036 (1975) 

[ "Legis. Hist."]. 

1956 
recognized that "ignitions and explosions have been among the major 

causes of death ·and injury to coal miners."!±_/ To achieve its goal, 

Congress included in the Act mandatory standards aimed at eliminating 

ignition and fuel sources for explosions and fires. Section 304(a) is 

one of those standards. 

Section 304(a) of the 1969 Act adopted the language of section 

304(a) of R.R. 13950. 2../ The House Report stated that the standard 

requires that coal dust, float coal dust, loose coal, and other 

materials be cleaned up so that it will not accumulate in active 

underground workings or on electric equipment. [H. Rep. 91-563, 

91st Cong., 1st Sess., 65; Legis. Hist. at 1077 (emphasis added).] 

The Conference Committee agreed to the language in the House bill. H. Rep. 

91-761, 91st Cong., 1st Sess., 32 (1969); Legis. Hist. at 1476, The 

legislative history demonstrates Congress' intention to prevent, not 

merely to minimize, accumulations. The standard was directed at preventing accumulations in the first instance, not at cleaning up the materials 

within a reasonable period of time after they have accumulated. §.../ 

The language of section 304(a) also furnishes no support for the 

Board's view that accumulations of combustible materials may be tolerated 

for a "reasonable time." Rather, the language of the standard makes 

accumulations impermissible. Even if, however, the Board's interpretation were arguably consistent with the language of the standard, it was 

hardly compelled by it. Inasmuch as our interpretation of section 304(a) 

is also consistent with its language, and would further the congressional 

purpose of preventing coal mine explosions and fires, we adopt it here. 

"Should a conflict develop between a statutory interpretation that would 

4/ S. Rep. 91-411, 25; Legi~. Hist. at 151. 

5/ R.R. 13950, 91st Cong., 1st Sess., 70-71 (1969); Legis. Hist. at 

983-984. 

!!_./ The forerunner of the House language for section 304(a), as adopted, 

was section 205(a) of S. 2917, which provided in part: 

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 underground workings or on 

electric equipment therein. S. 2917, 91st Cong., 1st Sess., 47 

(1969); Legis. Hist. at 49. 

The Senate Report stated: 

Tests, as well as experience, have proved that inadequately inerted 

coal dust, float coal dust, loose coal, or any combustible material 

when placed in suspension will enter into and propagate an explosion. 

The presence of such coal dust and loose coal must be kept to a 

minimum through a regular program of cleaning up such dust and 

coal. S. Rep. 91-411, 65; Legis. Hist. at 191.(emphasis added). 

The report does not state, as the Board apparently read it, that 

"accumulations ••• must be kept to a minimum •••• " Fairly read, this 

language can be interpreted to mean that if the presence of loose coal 

and coal dust is kept to a minimum, accumulations will not occur. 

1957 
promote safety and an interpretation that would serve another purpose 

at a possible. compromise to safety the first should be preferred." UMWA 

v. Kleppe, 562 F.2d 1260, 1265 (D.C. Cir. 1977). 

We hold that a violation of section 304(a) and 30 CFR §75.400 

occurs when an accumulation of combustible materials exists. !J 

Did Old Ben violate the standard in this case? 

We accept that some spillage of combustible materials may be inevitable in mining operations. Whether a spillage constitutes an accumulation 

under the standard is a question, at least in part, of size and amount. 

There is no doubt, however, that an accumulation of combustible materials 

was present here. The Board found that "most of the combustible materials 

did exist in the ••• mine as alleged in the order •••• " 8 IBMA at 119. 

Indeed, the Board noted that "witnesses for the operator did not dispute 

the testimony of the inspector pertaining to the existence of accumulations 

of loose coal and coal dust along the 8 south beltline for a distance of 

approximately 925 feet." 8 IBMA at 116 (emphasis in original). We need 

not precisely define an accumulation in this case, for we agree with the 

Board's finding that here the vast spillage cited by the inspector 

clearly constituted an accumulation. ~/ Therefore, we conclude that Old 

Ben violated 30 CFR §75.400. 

Was the violation "caused by an unwarrantable 

failure to comply with such standard"? 

The judge held that there was no unwarrantable failure by Old Ben 

to comply with a mandatory standard. In Zeigler Coal Co., 6 IBMA 182 

(1976), the Board stated that."a section 104(c)(2) order must ••• be 

based on a violation of a·mandatory health or safety standard caused by 

an operator's unwarrantable failure to comply" with the standard. 6 

IBMA at 190. 2_! We need not examine this question here, for we hold 

that the judge erred and that the violation was caused by an unwarrantable failure to comply. 

7/ The matters referred to in the second and third elements of the 

B~ard's interpretation are, we believe, appropriately considered in 

determining an appropriate penalty, not in determining whether a violation 

of this standard occurred • 

.!}) We note that the Secretary does not contend "that the merest deposit 

of combustible material constitutes a violation of the standard." 

J./ As we have noted, the judge held that Old Ben had not violated 30 

CFR §75.400. His additional holding of no unwarrantable failure was 

apparently made to provide an alternative basis for vacating the withdrawal order. Although the Board did not reach this issue, it did 

accept the judge's findings on this issue when it discussed its third 

element of proof for establishing a violation of the standard. 8 IBMA 

at 118, 119. 

1958 
The judge found that the accumulations had occurred mostly during 

the latter part. of the previous shift; that the operator "could not 

reasonably have been expected to know of the presence of the materials 

until the beginning of the second shift, when the second-shift mine 

manager should review the midnight shift examiner's report (based on 

inspections between 4: 00 a. m. and 7: 00 a. m.) ••• "; 10' and that the 

operator "first gained actual knowledge of the materials when the mine 

manager and [section foreman] reviewed the mine examiner's report arid 

when [the section foreman] walked the belt when he arrived at the 

section shortly before the inspection began." The judge concluded that 

there was no unwarrantable failure to comply with the standard "because 

as soon as the operator became aware of the cited conditions enough 

employees were promptly assigned to abate the conditions within a 

reasonable time," and because Old Ben "was following established procedures reasonably calculated to alert [it] to hazardous conditions 

within a reasonable period of time." 

We disagree with the judge's conclusion. He found as a fact that 

the accumulations were reported in the midnight shift examiner's report, 

made between 4 a.m. and 7 a.m. Sections 303(d)(l) and 303(e) of the Act 

required the examination made by the midnight shift examiner. Such 

examinations must be made by "certified persons designated by the 

operator." Section 303(e) required in addition that any "hazardous 

conditions ..• shall be corrected immediately." We impute to Old Ben 

the midnight shift examiner's knowledge that the accumulations existed 

sometime during the midnight shift. Cf. Pocahontas Fuel Company v. 

Andrus, 590 F.2d 95 (4th Cir. 1979). Compliance did not begin, however, 

until after the 8 a.m. shift began. Thus, contrary to the judge's 

holding, the operator did not promptly begin to eliminate the conditions 

"as soon as [he] became aware of the cited conditions." This constituted 

an unwarrantable failure on the part of Old Ben under the facts of this 

case. 11/ 

Is a "significant and substantial" finding required 

for the issuance of a section 104(c)(2) order? 

Finally, the judge concluded, as a third basis for vacating the 

order, that the "conditions upon which the Order is premised were not 

such as could significantly and substantially contribute to the cause 

and effect of a mine safety or health hazard." 12/ It is unnecessary 

for us to review this conclusion because, after~he judge's decision, 

the Board held that a "significant and substantial" finding (see section 

104(c)(l)) is not required for the issuance of a withdrawal order under 

section 104(c)(2). Zeigler Coal Co., supra, 6 IBMA at 189-190. See 

also, UMWA v. Kleppe, supra, 532 F.2d at 1407. We concur in this interpretation of section 104(c)(2). Consequently, the judge's finding that 

the "significant and substantial" criterion was not met here was immaterial. 

10/ The judge found that the second shift began at 8 a.m. 

11/ We need not cons.ider in this case whether the "operator" is chargeable 

with knowledge, if any, gained by other persons at an even earlier time. 

Nor need we determine in this case under what circumstances constructive 

knowledge is deemed to exist, nor to what extent knowledge, actual or 

constructive, is necessary to a finding of unwarrantable failure. 

12/ The Board found it unnecessary to decide this issue. See note 5, 

supra. 

1959 
Accordingly, we reverse the decision of the judge and reinstate 

the withdrawai order. 

..-·--

A.UE. L'awsop., Commissioner 

~iu~\R ~\QU \\.QJμQ 

Fr _k et. b, 

fl« diz-~IJ"-

Marian Pearlman Nease, Commissioner 

I 

Connnissioner Backley did not participat~n the decision of this case. 

1960 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

December 12, 1979 

v. Docket No. VINC 78-395-P 

FREEMAN UNITED COAL MINING 

COMPANY 

Respondent 

DECISION 

The decision of the administrative law judge is reversed insofar 

as he dismissed the Secretary of Labor's petition for assessment of 

a penalty for an alleged violation of 30 CFR §75.400. The case is 

remanded for further proceedings consistent with our opinion in 

Old Ben Coal Co., No. VINC 74-11 (December 12, 1979). 

79-12-6 

1961 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY ANb HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

PEABODY COAL COMPANY, 

Respondent 

December 12, 1979 

Docket No. VINC 77-91 

DECISION 

The decision of the administrative law judge is reversed. The 

case is remanded for further proceedings consistent with our opinion 

in Old Ben Coal Co., No. VINC 74-11 (December 12,. 1979). 

79-12 ..... 5 

J.962 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 31, 1979 

RAY MARSHALL, SECRETARY OF LABOR, 

ex rel. RODNEY D. McCOY 

v. Docket No. KENT 79-263-D 

ORA MAE COAL COMPANY 

ORDER 

The Secretary of Labor has filed a petition for interlocutory 

review of a judge's ruling that he must produce documents that allegedly 

contain statements by miners to Mine Safety and Health Administration 

(MSHA) personnel concerning a discrimination complaint. The documents 

include the report of an MSHA investigator. The Secretary moved before 

the judge to strike those portions of Ora Mae Coal Company's motion for 

production that requested those documents. The motion to strike claimed 

that production would violate 29 CFR §2700.59, which bars a judge from 

disclosing the names of miner-informants except in extraordinary circumstances. The judge ordered.deletion of the names of miner-informants 

before production of the documents containing their statements. The 

Secretary claims in his petition for interlocutory review that the judge 

erred in not reviewing all the documents in camera to determine whether 

the statements, even with the names deleted, might reveal to the operator 

the identity of the miner-informants. As to the MSHA investigator's 

report, the Sec.retary claims executive privilege as well. 

Inasmuch as the Secretary in his motion to strike did not invoke 

the claim of executive privilege, did not argue to the judge that the 

statements thems.elves might reveal the identity of informants, and did 

not request an in camera inspection by the judge, we consider interlocutory review to be inappropriate at this time. These matters 

should have been presented to the judge first. The petition for interlocutory review is accordingly denied without prejudice. 

79-12.;_11 

1963 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

ADMINISTRATIVE LAW JUDGE DECISIONS 

DECEMBER 1 - 31, 1979 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

CLEVELAND CLIFFS IRON COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED STEELWORKERS OF AMERiCA, 

Representative of the Miners 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CLEVELAND CLIFFS IRON COMPANY, 

Respondent 

December 3, 1979 

Contest of Order 

Docket No. VINC 79-68-M 

Order No. 286223 

October 30, 1978 

Civil Penalty Proceeding 

Docket No. VINC 79-240-PM 

Humboldt Mill 

DECISION 

Appearances: Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, 

Graybill & Greenlee, Ishpeming, Michigan, for Applicant in Docket No. VINC 79-68-M and Respondent in 

Docket No. VINC 79-240-PM; 

Before: 

William B. Moran, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

Respondent in Docket No. VINC 79-68-M and Petitioner 

in Docket No. VINC 79-240-PM; 

Mr. Bruce Chapman, Safety Committee Chairman, and 

Mr. Ernest Ronn, Subdistrict Director, United Steelworkers of America, for the Representative.of the 

Miners, 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Applicant (CCI) seeks review of an order of withdrawal issued on 

October 30, 1978, under section 104(b) of the Federal Mine Safety and 

1965 
HealthAct of 1977, 30 U.S.C. § 814(b). The order was issued because 

of the failure of Applicant to abate the violation alleged in a citation issued August 23, 1978, and modified October 5, 1978, charging a 

violation of the mandatory safety standard contained in 30 CFR 55.9-22, 

which requires berms or guards to be installed on the outer bank of 

elevated roadways. Petitioner (MSHA) filed a civil penalty proceeding 

seeking a penalty for the violation alleged in the citation. The two 

proceedings were consolidated for the purposes of hearing and decision 

since they involved the same facts. Pursuant to notice, a hearing.was 

held on the merits in Marquette, Michigan, on August 7 and 8, 1979. 

Frank Gerovac and William Carlson testified on behalf of MSHA. Max 

Woelffer, Joseph Crites, Gordon Miner, and Robert Neil testified on 

behalf of CCI. No witnesses were called.by the Representative of the 

Miners (USWA). At the request of the parties, I viewed the cited 

areas on August 8, 1979, accompanied by representatives of the three 

parties. Following this, I stated on the record what I had observed. 

Posthearing briefs were filed by CCI and MSHA. To the extent that 

the proposed findings and conclusions are not incorporated in this 

decision, they are rejected. 

REGULATION 

30 CFR 55. 9-22 provides as follows: "Mandatory. Berms or 

guards shall. be provided on the outer bank of elevated roadways." 

ISSUES 

1. Whether the roads covered by the citation and order involved 

in this case were subject to the mandatory standard in 30 CFR 55.9~22? 

(a) Whether the roadways in question were elevated? 

(b) Whether the portions of the roadway involved herein 

are covered by the phrase "the outer bank?" 

(c) Whether the standard applies only to roadways used for 

loading, hauling and dumping? 

(d) If the previous question is answered affirmatively, 

whether the roadways in question here were used for loading, hauling 

or dumping? 

2. If a violation of the standard has been established, what 

is the appropriate penalty? 

FINDINGS OF FACT 

1. CCI, in October 1978, and prior thereto, was the operator of 

the Humboldt Mill, a mill and iron ore pelletizing plant in Marquette 

County, Michigan. 

1966 
2. CCI is a large operator. In October 1978, the Humboldt Mill 

employed approximately 111 people and operated three shifts daily, 

7 days a week. 

3. From the effective date of the 1977 Act until August 23, 

1978, three violations of the mandatory standard contained in 30 CFR 

55.9-22 were assessed and paid. Mr. Carlson, the supervisor of MSHA's 

Marquette Field Office, testified that approximately 26 "berm citations" were issued to CCI between 1974 and 1979. Since there was no 

evidence as to the number of such citations that were paid, this does 

not establish a history of prior violations. I conclude that the 

history is not such that penalties should be increased because of it. 

4. On August 23, 1978, Federal mine inspector Frank Gerovac, 

during a regular inspection of CCI's Humboldt Mill, issued Citation 

No. 286849 charging a violaton of 30 CFR 55.9-22 for a failure to provide berms on a 1,500-foot stretch of land on the western side of the 

road to the M-95 lift station and on a 35-foot stretch of land on the 

road leading to the pit pump station. 

5. On October 5, 1978, William Carlson, supervisory mining 

engineer fo.r MSHA' s Marquette Field Office, modified the citation 

based upon a reinspection of the area. The modified citation 

included an additional area: a 200-foot section on the eastern 

side of the M-95 lift station road. The abatement time was extended 

to October 12, 1978. 

6. On October 30, 1978, Federal mine inspector Richard Breazeal 

issued a 104(b) closure order because of the failure to abate the 

condition cited. 

The ·M-95 Lift Station Roadway 

7. The M-95 lift station roadway, also called the tailings dike 

road, is a rough gravel road along the crest of an impoundment dike, 

which is itself constructed of gravel and rock. The road is wide 

enough for two-way travel, although it is normally used by only one 

vehicle at a time. 

8. The distance between the edge of the road and outer edge of 

the dike varies from 6 to. 10 feet. 

9. The roadway itself slants slightly to the inner side of the 

dike (away from highway M-95). The slant varies from 6 inches to a 

foot in some places. 

10. The side of the dike road toward M-95 has a drop-off 

increasing in steepness as the road approaches the pumps. The road 

also narrows as it approaches the pumps. The angle of the slope is 

1967 
up to 45 degrees. The slope from the roadway to the bottom measured 

up to approximately 75 feet. The vertical differential in height 

from top to bottom was approximately 35 feet. 

11. There are many large rocks and boulders ori the slope down 

to the bottom. At the bottom of the slope, there are many large trees 

and a large area covered by water or swamp. 

12. The other side of the dike road toward the tailings basin 

is less steep--the drop-off is from 5 to 8 feet or less. There are 

some boulders along the side forming a natural barrier on this bank. 

The tailings basin is presently grown over with vegetation. 

13. The road is used as an access to the M-95 lift pump station. 

The purpose of the pump station is to raise the water in a stream, 

which was blocked by the dike, up over the dike to its original course 

further downstream. Two operating pumps are in the pumphouse, and a 

third is there for use when needed. 

14. At least once a day on the day shift, a supervisory employee 

drives a pickup truck on the road to check the pumps and the water 

level. On many days, the afternoon and night shift supervisors also 

drive down to check the pumps and the water level •. 

15. In the winter the pumps do not run continuously. Therefore, 

trips are made to the lift pump station to turn the pumps off and to 

restart them. When the pumps are turned off, the pipeline must be 

drained and two or more men are taken to the pumps for this task. 

16. If mechanical problems develop with a pump, a 1-ton flatbed truck brings a replacement pump, and the faulty one is taken 

back to the shop for repairs. 

17. In the spring of the year, it is ordinarily necessary to 

bring in and install a fourth pump because of the large amount of 

water. After the water has subsided, it is necessary to drive a 

truck down to the station and remove the fourth pump. 

18. In the winter time, it is necessary to plow the road of 

snow to maintain access to the pumps. I can safely take official 

notice that a considerable amount of snow normally falls in the 

winter months in Harquette County, Hichigan. 

19. The road has minimal maintenance, but occasionally it is 

necessar~ to use a front-end loader to fill chuckholes and patch 

rough areas. 

1968 
20. The pit pump station has a submerged pump in the pit water 

and draws cold .water from 60 feet down for use in the concentrating 

process in the mill. The water is pumped out to the mill. 

21. The road to the pit pump station is narrow--only wide 

enough for single-lane traffic for most of its course, but widening 

out in the area closer to the station. As the road approaches the 

station, there is a wider turn around area, or parking area, 

below which is an overflow pipe which crosses the road and prevents 

vehicles from going further. 

22. The composition of the road to the pit pump station is 

similar to that of the lift station.road. 

23. There are boulders forming a berm along the edge of the 

roadway northeast of the area covered by the citation. This apparently is a remnant of a bermed roadway used when the pit was being 

mined. 

24. There is a drop-off of about 12 feet to a flat area 20 or 

30 feet wide. Beyond that, there is a further drop-off to an area 

covered by water. 

25. The pump is checked each shift by a supervisor who ordinarily drives to the station in a pickup truck. Periodic maintenance 

is required as was the case for the pumps in the lift station. 

DISCUSSION AND CONCLUSIONS OF LAW 

Elevated Roadway 

There is little dispute that the roadways in question are elevated. The roadway to the M-95 lift station is 35 to 40 feet above 

the adjacent terrain and the slope toward M-95 is at a 45-degree 

angle. The other edge of the road in the cited area is 5 to 8 feet 

above the adjacent terrain. The cited area on the pit pump station 

road has a 10- to 12-foot drop-off to a ledge and a further dropoff of 12 feet to a water-filled area. Both areas are of sufficient 

height above the adjacent terrain to create a hazard in the event a 

vehicle ran off the roadway. Therefore, they are elevated. 

Outer Bank 

The standard applies to "the outer bank" (singular) of an elevated roadway. CCI argues that it is intended to cover roadways having a single bank as is typically the case on a haulage road from a 

pit or on the side of a mountain. No compelling reason having to do 

with safety was advanced for so limiting the standard. Two Administrative Law Judge decisions are in point.. In MESA v. Peabody Coal 

Company, Docket No. VINC 77-102-P, issued December 13, 1977, Judge 

1969 
Koutras considered the berm standard for coal mines contained in 

30 CFR 77.1605(k). The standards are in identical language. Judge 

Koutras heid that the regulation applies only to a single outside bank 

of the road and vacated the citation because it was directed to the 

inner bank of the roadway in question over which an employee drove in 

a fatal accident. In Cleveland Cliffs Iron Company v. MSHA, Dock£t 

No. VINC 78-300-M, issued September 8, 1978, Judge Moore interpreted 

the language in 30 CFR 55.9-22 as follows: 

Inasmuch as it is the elevation which creates the 

hazard that berms are designed to alleviate, the intent 

of the regulation must be to require those berms wherever 

there is a hazard created by the elevation. Therefore, 

the term 'outer bank' means whichever bank is hazardous 

because of the elevation, and if both sides of a road 

present a hazard of rolling down a steep embankment, 

then both sides of the road are required to have berms. 

The safety standard is meant to protect drivers of vehicles from 

injuries caused by going over embankments. It would be anomalous if 

the standard were limited to one side of the road when the hazard is 

on the other side or on both sides. With no reason other than the 

use of the singular term "the outer bank," I would find it impossible 

to accept such a construction. The use of the singular may be 

explained by reference to the direction of travel: the outer bank 

may be interpreted as the bank on the right of the driver. Therefore, 

on roads carrying traffic both ways, both banks are "the outer bank." 

I conclude that the standard requires berms for both banks of elevated 

roadways. 

Loading, Hauling and Dumping 

30 CFR 55.9 (of which 30 CFR 55.9-22 is a part) is a heading or 

title for the entire section. It reads: "Loading, hauling, dumping." 

It explains or defines the purpose and scope of the section, and 

therefore, in my opinion, limits the applicability of the safety 

standards set out in the subsections. See Cleveland Cliffs Iron 

Company v. MSHA, supra. I conclude tha'°tt"he berm standard applies 

only to roadways involved in loading, hauling and dumping. It remains 

to consider whether the activities on the road in question come within 

those terms. 

CCI contends that the berm standard applies only "to typical load 

haul and dump movements associated with open pit activities, the most 

obvious of which is the loading, hauling and dumping of overburden and 

ore." This restricted interpretation was rejected in the case. of 

Cleveland Cliffs Iron Company v. MSHA, supra, which held that trucks 

building a pipeline road were involved in hauling. Under the coal 

mine standard, Judge Michels held that the berm standard was applicable on roads used for the transportation of personnel. MESA v. 

1970 
Consolidation Coal Company, Docket No. VINC 77-87, issued July 13, 

1977. In the case of MESA v. Peabody, supra, Judge Koutras held that 

the standard applied to all roads on mine property used to transport 

coal, equipment or men. 

As is shown in findings of fact numbers 13 through 19 and finding of fact 25, the roads in question here are used regularly, ordinarily three times a day and on some days more often. Their primary 

use is as access roads to the p~~p stations. They are not used for 

hauling ore or any mine product. The vehicles using the road are 

normally pickup trucks and 1-ton flatbed trucks. Ordinarily, the 

driver is alone, but occasionally men are transported. A number of 

times each year, the roads are used to haul pumps to and from the 

stations. Thus, men, equipment and tools are transported along these 

roads on a regular though limited basis. Is this hauling? A technical dictionary 1/ defines "hauling" as "the drawing or conveying of 

the product of the mine from the working places to the bottom of the 

hoisting shaft or slope." This definition seems to limit the term to 

underground mining and is therefore not helpful. The same dictionary 

defines "haulage" as "the drawing or conveying, in cars or otherwise, 

or movement of men, supplies, ore and waste both underground and on 

the surface." This definition would seem to include the activities 

on the roads in question. MSHA and its predecessor agency have in a 

more or less formal way interpreted the standard as applicable to all 

active roadways. The interpretation by the agency responsible for the 

regulation is of course entitled to great weight. However, it is not 

clear whether this interpretation is based upon the conclusion (which 

I reject) that the terms "loading, hauling and dumping" do not limit 

the applicability of the standard or upon the position that hauling 

occurs on all active roadways. 

Having in mind the purpose of the regulation, which is to guard 

the safety of miners who travel on elevated roadways, I conclude that 

the routine, systematic usage of the roadways shown by this record 

constitutes hauling. Therefore, I conclude that berms are required 

on the areas of the roadways covered by the citations and order 

involved l;lerein. 

Penalty 

I conclude that the citation as modified properly charged a violation of 30 CFR 55.9-22 and that a violation has been established 

by the evidence. CCI does not dispute that berms were not provided 

in the areas covered by the citation. 

1/ A Dictionary of Mining, Mineral and Related Terms, U.S. Department 

of the Interior (1968), pp. 530-531. 

1971 
I have previously found that CCI is a large operator, and that 

its history of prior violations is not significant. There is no evidence that a penalty imposed herein will have any effect on CCI's 

ability to continue in business, and therefore, I find that it will 

not. 

The gravity of a safety violation must be measured by (1) the 

likelihood that it will result in injuries, (2) the number of workers 

potentially exposed to such injuries, and (3) the severity of potential injuries. The evidence establishes in this case that injuries 

are not likely. The roadways are wide and the chances of going over 

the bank are not great. However, the hazard may be increased· by 

weather conditions, such as fog or rain or snow. The number of workers 

exposed is not great, since the roadways are used relatively infrequently. However, should a vehicle go over the bank, the likelihood 

of severe injuries is very high because of the steep, rocky terrain. 

I conclude the violation was moderately severe. 

CCI's failure to provide berms was intentional, in keeping with 

its (good faith) position that the standard did not apply to the 

roadways in question. For the purpose of the assessment of a civil 

penalty, I treat this as the equivalent of ordinary negligence. 

CCI did not demonstrate good faith in attempting to achieve rapid 

compliance, since it did not make any attempt to comply, and a closure 

order was issued. Although CCI was in good faith relying on its 

interpretation of the standard, I cannot credit it in the penalty 

proceeding with attempting to achieve rapid compliance. 

Based on the testimony and other evidence introduced at the hearing and my viewing the site, and considering the criteria set forth 

in section llO(i) of the Act, I conclude that a civil penalty of $880 

should be imposed for the violation found to have occurred. 

ORDER 

Therefore, IT IS ORDERED that in Docket No. VINC 79-68-M, Order 

of Withdrawal No. 286223 issued October 30, 1978, is AFFIRMED and the 

contest of the order is DENIED. 

IT IS FURTHER ORDERED that in Docket No. VINC 79-240-PM, Respondent CCI is ordered to pay the sum of $880 within 30 days of the date 

of this decision as.a civil penalty for the violation of 30 CFR 

55.9-22. 

'· 

/) ' ;; 

"/J,,!/kv .; /rl!J .- v cf:. .~ 2 c::" ((_ 

.../ James A. Broderick 

Chief Administrative Law Judge 

1972 
FEDERAL M,INE SAfETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520,S LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

SHAMROCK COAL COMPANY, 

Petitioner 

Respondent 

Docket No. BARB 79-272-P 

A.O. No. 15-02502-03007V 

No. 18 Mine 

DECISION 

Appearances: George Drumming, Jr., Attorney, U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, for the 

petitioner; 

Before: 

Neville Smith, Esquire, Manchester, Kentucky, for the 

respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty 

filed by the petitioner pursuant to se.ction llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(a), on January 31, 1979, 

charging the respondent with one alleged violation of the provisions of 

30 CFR 75.604. The alleged violation was cited on May 25, 1978, by an MSHA 

inspector in Citation No. 132945, which states as follows: 

The electrical connections or splice in the conductors 

of the low medium voltage 550 volt AC 3 phase, roof bolter 

cable on the "G" section was not mechanically or electrically 

efficient. The splice was made by twist connection of the 

cable conductors. Section foreman stated knowledge of such 

type splice being in the cable and that other splices are 

made in the same manner. 

The inspector cited a violation of 30 CFR 75.514 and fixed May 26, 

1978, as the abatement date, but extended that date to June 30, 1978, at 

which time he modified the citation on May 26, 1978, by stating as follows: 

1973 
A new cable was installed for the roof bolter. The new 

cable did not contain any splices. This citation is hereby 

modified to terminate the violation within the cable. However, this citation is also modified to remain in effect 

until all electrical repairmen, which perform cable splicing 

are properly retrained in correct cable splicing techniques. 

MSHA shall be notified as to the time and place of such 

retraining. 

The inspector terminated the citation on June 2, 1978, and the termination notice states: "A new cable was installed for the roof bolter and 

all maintenance men were retrained on the proper way to make a splice in 

a power cable." 

On June 9, 1978, the inspector modified his original citation of 

May 25, 1978, as follows: "Change part and section of violation from 

75.0514 to 75.0604. The type splice was made within a trailing cable to 

the roof bolter." 

Respondent filed an answer contesting the citation on the following 

grounds: 

(1) The proposed penalty of $1,000 is not based upon 

and in compliance with the six statutory criteria. 

(2) The annual company production for the year 1977 was 

not 2,424,628 tons and was substantially less than that 

amount. 

(3) No violation occurred in that 30 CFR 75.604 does 

not require that a "suitable connector" be used as required 

for abatement of the amended citation. 

(4) A square knot had been placed in the splice area in 

the manner usually and customarily done for many years at the 

mine, and such connection complies with the requirements of 

30 CFR 75.604. Such connection had repeatedly been inspected 

and approved by other MESA and MSHA inspectors over a period 

of years and had been found acceptable, proper, and not in 

violation of the cited regulation or any other regulations. 

A hearing was held in Lexington, Kentucky, on August 27, 1979, and the 

parties waived the filing of posthearing proposed findings and conclusions 

(Tr. 147). 

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 

1974 
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 ·uo(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 ~~· 

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

3. Commission Rules, 29 CFR 2700.l ~ ~· 

Discussion 

Stipulations 

The parties stipulated to the following (Tr. 6-9): 

1. This proceeding is governed by the Federal Mine Safety and Health 

Act of 1977 and the standards and regulations pr01uulgated thereunder. 

2. The Administrative Law Judge has jurisdiction over this proceeding. 

3. Shamrock Coal Company is the operator of the No. 18 Mine, and, as 

such, is subject to the jurisdiction of the above Act. 

4. The No. 18 Mine currently employs 262 persons; 164 in underground 

mining, 44 on the surface, 46 in the preparation plant, 4 in a s~rface 

mining site, and 6 in the mine office. · 

5. Respondent's ability to continue in business will not be affected 

by any civil penalty assessed in this matter. 

6. The MSHA inspector who issued the notice and order in this matter 

was a duly authorized representative of the Secretary of Labor, and copies 

of the notice and order which are the subject of this hearing were properly 

served upon a representative of the operator. 

1975 
7. The No. 18 Mine's history of previous violations paid prior to the 

issuance of this order or notice is from January 1, 1970, to April 8, 1974. 

Total violations paid were ll3. Total amount paid $6,623. From January 1, 

1970, to May 1, 1977, the total violations paid were 249 and the total 

amount paid was $17,117. 

8. Shamrock Coal Company is controlled by B. Ray Thompson, Jr., who 

also controls Greenwood Land and Mining Company, Clover Coal Company and 

Freedom Coal Company which are currently in production. The total coal 

production of Shamrock Coal Company for the year 1977 was approximately 

1.3 million tons. The total coal production of Shamrock, together with the 

above-referenced coal companies controlled by B. Ray Thompson, Jr., for the 

year 1977 was approximately 1.4 million tons. 

During the course of the hearing, respondent asserted that the total 

coal production for the respondent was somewhat less that that shown by the 

petitioner's documentation which initially indicated production to be in 

excess of 2 million tons. In any event, the parties further stipulated and 

agreed that f~r purposes of any civil penalty assessment, respondent should 

be considered to be a medium-sized operator (Tr. 9). 

DISCUSSION 

Testimony and Evidence Adduced by the Petitioner 

MSHA inspector Paul L. Scall testified that he is an electrical 

engineer with 21 years' experience, 6 of which were in the mining business. 

He confirmed that he inspected the mine on May 25, 1978, for. the purpose of 

checking on some previous citations and while there he observed a damaged 

trailing cable on a roof bolter. While looking at the damaged cable area, 

he also noted that a splice in the cable was made by twisting the connectors 

and tying them in a square knot. He determined that this was not a proper 

electrical connection because such a splice does not have a compl~te crosssectional area of the two conductors in connection with each other and 

therefore there is no total current-carrying capability in that conductor. 

This will cause a "hot spot" to develop and will tend to heat up and further 

damage the stranded conductors (Tr. 10-13). 

Inspector Scall testified that he initially cited section 75.514, a 

general standard, and then modified the citation to reflect a violation of 

section 75 .604, which specifically deals with trailing cab las. The standard has three requirements and it is intended to prevent persons from 

coming in contact with live exposed conductors. The mechanical strength of 

a square knot, as opposed to a splice made in conformity with the manufacturer's specification as to how the splice should be made, is questionable. A "pull test" would have to be made to determine whether a square 

knotted splice is as strong as the approved method of using a splice ring 

(Tr. 14-15). 

Mr. Scall stated that permanent splices must be made in accordance 

with a manufacturer's specifications or a manufacturer's splice kit 

1976 
approved by MSHA, and to his knowledge there is no manufacturer's specifications for pennanent splicing which specifies that a square knot may be 

used. The respondent should purchase an MSHA approved kit which contains 

the specifications (Tr. 16). 

If a person touched an unprotected 550-volt cable, electrocution and 

death could .be expected, and the person that touched it would be the one 

exposed to such a hazard. The respondent was aware of the condition cited 

because he discussed the splice with section foreman Cecil Hooker who 

admitted he was aware of the splice being made with a square knot and 

acknowledged its use throughout the Shamrock mines. He cited the violation 

at. 10:30 and fixed 8 a.m. the next morning as the abatement time, and 

respondent cooperated in achieving compliance by replacing the trailing 

cable in question with a new cable without a splice in it (Tr. 16-18). 

Mr. Scall stated that the violation could have proceeded under section 75.514 without being changed to section 75.604, but he amended it 

because he believed the per;nanent splice should be made to a manufacturer's 

exact specifications. Section 75 .514 was a general electrical standard, 

and section 75.604 deals with a specific standard for trailing cables. In 

achieving compliance, in addition to replacing or repairing the splice, he 

alloweri the roof bolter to be put back into service provided the respondent 

retrained its personnel as to the method for making the splice and that 

MSHA be notified as to the time and place of the retraining. MSHA was so 

notified, an MSHA representaive attended the retraining classes and the 

citation was subsequently terminated (Tr. 19-20). 

On cross-examination, Mr. Scall testified that he was not aware of any 

MSHA guidelines regarding the use of square knots while making a permanent 

splice, but he did refer to a November 1973 MESA Guideline and Instructions 

for electrical inspectors, or manual, and specifically, page 17 (Tr. 26-27). 

He had previously inspected the mine in question, but the question of the 

use of square knots had not previously arisen, and none of his fellow 

inspectors ever advised him that they found nothing wrong with the use of 

square knots (Tr. 29). He did discuss with his supervisor Henry Standafer 

the question of whether section 75.514 or 75.604 should be cited, and 

Mr. Standafer advised him that in his enforcement of the standard he did 

not permit the usa of square knots (Tr. 30). 

Mr. Sc all testified that the MSHA Manual referred to does make reference to manufacturer's specifications, and while he could not specify any 

specific one for the kind of cable in question, he did ~ake reference to 

kits manufactured by Raychen, CSI, and 3-M and stated that they all call 

for the use of splice rings (Tr. 32-33). He has never conducted any splice 

tests or examinations to confirm that a reduction in voltage occurs through 

the use of a square knot as compared to the use of splice rings, and he has 

conducted no tests regarding the "hot spots" previously mentioned (Tr. 34). 

He was not aware that square knots were used generally in the industry for 

many years (Tr. 34). He indicated that a slip ring would provide uniformity, while the size of a square knot would depend on the person making it 

1977 
(Tr. 35). Any moisture seal and vulcanization would be the same insofar as 

splices made with square knots or splice rings are concerned, and the difference in the two methods is in connection with the splice being mechanically strong, adequate conductivity, and flexibility (Tr. 36). 

On redirect, Mr. Scall stated that the splice kits previously referred 

to have been approved by MSHA, and they are some of the major splice kits 

manufactured (Tr. 38). He described the method for making a square knot, 

and stated that the conductivity is not as adequate or as good as a splice 

made with a ring. A ring encircles both conductors which are being spliced 

by pressure and it mechanically joins the two conductors, but the square 

knotted splice is joined only by the knot arrangement. The strength of the 

two types of splices can only be determined after they are subjected to· a 

pull test. The square knot also develops heat because of the voltage drop 

across the knot due to a smaller cross-sectional area of the conductors 

being in contact with each other. Although a square knot is more convenient 

to make, it does not provide long lasting protection as does the splice 

ring (Tr. 39-40). 

On recross, Inspector Scall confirmed that he relied on the 1973 

Electrical Inspector's manual, page 17, in interpreting section 75.514 and 

the use of square knots, and he read the pertinent provision into the record 

as follows (Tr. 41-42): 

Electrical Connections or Splices Suitability. This 

section requires that all splices and current carrying conductors be made with clamps, connectors, track bonds or other 

suitable connectors to provide good electrical connections. 

Tape such as rubber, tar, impregnated glass, asbestos or 

plastic will be accepted as insulation. Friction tape alone 

is not acceptable but can be used over other tapes to provide 

mechanical protection. Spliced conductors in all multiple 

conductor cables shall be re-insulated individually and an 

outer jacket compatible to that covering the remainder of the 

cable shall be placed around the complete splice. Splices 

made by twisting conductors together or by tying ,knots in 

conductors, splices that have bare or exposed conductors, 

splices that heat or are under load or splices in multiple 

conductor cables that do not have the outerjacket replaced 

shall constitute noncompliance. 

Inspector Scall also read into the record the following pertinent 

excerpt from page 27 of the Manual concerning the interpretation of 

section 75.604 (Tr. 43-44): 

Materials used by the Bureau approval and testing section as flame resistent for use in making per~anent splices 

in trailing cables shall be used in complete accordance with 

manufacturers' instructions. Splice insulating kits shall 

be applied without any substitution or alteration of parts 

1978 
in order to duplicate the conditions under which the materials were tested and accepted. Any deviation would require 

additional evaluation or testing by the Bureau and if used 

without such evaluation, would constitute noncompliance with 

this provision. 

In response to bench questions, Mr. Scall stated he holds a B.S. 

degree in electrical engineering from the University of Kentucky. He confirmed that the gist of the alleged violation lies in the fact that in 

permanently splicing the trailing cable the respondent used a square knot 

rather than making the splice with a mechanical device such as a connector 

and a ring. Although he conceded that section 75.514 would cover a situation where a splice is made without the use of a connector, he cited section 75.604 because of a November 20, 1974, MESA memorandum addressed to 

District Managers from MESA Assistant Administrator John w. Crawford (Tr. 

45-49). The thrust of the violation also lies in the fact that he did not 

believe that the square knot was mechanically strong and it did not provide 

efficient electrical conductivity (Tr. 49-50). 

Mr. Scall conceded that no pull or stress test had ever been conducted 

with the square knot and the reason MSHA insists on the use of approved 

manufactuer's splice kits lies in the assumption that splices· have been 

tested ~y the manufacturer (Tr. 51). tle made reference to an April 6, 1973, 

MESA memorandmn dealing with sections 75.604 and 77.602, and pertinent 

portions were read into the record by me as follows (Tr. 52-53): 

JUDGE KOUTRAS: Let the record show that the inspector 

just handed me a memo, April 6, 1973, which is addressed to 

all inspection personnel. The subject is Section 75.604 and 

77.602, Permanent Splicing of Trailing Cables. 

Let me just read the first paragraph gentlemen. And 

this memo, again, is signed by John W. Crawford and it says: 

[Reading} "It has come to the attention of this office," 

then he's got in brackets, visual examination, "that the 

adequacy of permanent splices in trailing cables leaves a 

lot to be desired. Many of these so-called penuanent splices 

are being accepted by inspection personnel, when, in fact, 

many of the splices are poor excuses for temporary splices." 

"All splices shall be inspected to ascertain whether 

they are effectively insulated and sealed so as to exclude 

moisture. Particular attention should be paid to splices 

which are made with lapped tape to ensure compliance with 

the above-mentioned sections." 

"If the splices, regardless of who the manufacturer 

may be or what has been printed in the industry literature, 

do not conform to the requirements of Section 76.604 and 

1979 
77.602, a notice of violation shall be issued. All inspection personnel to pay particular attention to the requirements as set forth above." 

Mr. Scall testified that the trailing cable splice in question was 

not well insulated or sealed so as to exclude moisture in that the outer 

jacket was "ragged where I could see the inner conductors" and it was not 

sealed to prevent moisture. He required that the splice be opened so that 

he could inspect it and he could see it was square knotted because of the 

bulk of the conductors. The splice was made and then an attempt was made 

to reinsulate it but the ;noisture seals were damaged because they were 

ragged and split (Tr. 54-56). The condition of the cable .led him to require 

that it be opened up and inspected, and since MSHA does not require all 

pennanent splices to be opened up unless they are damaged, for all he knows 

square knots could still be used, and if they are small, vulcanized, and 

well insulated, he would not know the difference (Tr. 56). A square knot 

may be electrically efficient and good when it is first made, but it will 

deteriorate over a period of time and a lesser degree of electrical continuity will result due to the heating effect (Tr. 59). 

The roof bolter was energized at the time of the inspection, and it 

was shut down so that the section repairman could open the splice for his 

examination. The bolter was taken out of service and a new cable was 

brought in to correct the cited condition. He did not attend the retraining and did not know the type of splicing presently used at the mine. He 

confirmed that he discovered the square knotted splice while at the mine 

to abate previous citations concerning low voltage monitors on the cables, 

and this required the inspection of the cable which disclosed the faulty 

splice in question. He discovered no similar violations on the section 

(Tr. 59-62). 

Inspector Scall testified that the operator could have selected the 

proper kit to use in splicing the cable in question, but other than the 

Nove;nber 1973 MSHA guideline, he was not aware of any current publications 

which may have informed the respondent of the proper splicing as of the 

time of the citation in 1978 (Tr. 66-67). The MSHA district office had no 

procedure for advising operators as to the requirements of section 75.604. 

He did not know when the splice in question was made (Tr. 67). The respondent exercised excellent good faith abatement (Tr. 69). The previous 

citations did not concern defective splices, and at the time of the inspection coal was not being cut or loaded. The power center conditions were 

dry and the cable in question was rolled up on the reel but was taken off 

in order to allow him to inspect it. The cable was 500 feet long and only 

one place was defective. The electrical equipment is required to be 

inspected weekly, he did not check the preshift books, and did not know 

when the cable was last inspected. With the cable on the reel, it is 

reasonable to conclude that someone walking by and visually inspecting the 

cable would not be able to detect the condition cited unless the cable was 

reeled out and examined (Tr. 73-80). 

1980 
On further recross, Inspector Scall stated that there was no problem 

with the cable moisture seal or vulcanization, and his concern was with the 

fact that respondent was using a square knot to make the splice (Tr. 81-82). 

Respondent's Testimony 

Gordon Couch, respondent's safety director, testified that prior to 

his employment with the respondent during the past 2 years, he was employed 

by the Bureau of Mines at Barbourville, Kentucky as a Federal coal mine 

inspector and worked in that capacity, as well as a supervisory inspector, 

from 1969 to 1977 (Tr. 92). He and inspector Sc alls discussed the citation 

in question during the inspection closeout conference, and he was not present during the actual inspection when the defective splice was discovered 

(Tr. 96). In his view, the only mandatory requirements for the use of 

manufacturer's specifications in splicing is in regard to the requirements 

of Part 800 of the regulations dealing with high voltage cables rather than 

low voltage equipment, and nothing in section 75.604 mentions manufacturer's 

specifications (Tr. 98). Respondent uses thermo-fit splice kits on their 

trailing cables and follows the manufacturer's recommendations in all 

regards (Tr. 98). He confirmed that square knots were used on shuttle car 

and roof bolter cables, and that they have been using them on cables such 

as the one in issue since 1957. Connectors are used on larger sized cables 

because they are not flexible enough to bend to facilitate the use of a 

square knot (Tr. 99). 

Mr. Couch stated that prior to the citation issued by inspector Scall, 

MSHA inspectors had never complained about the square knot splices, they 

were used prior to his employment with the respondent, and in his view they 

satisfactorily comply with sections 75.604 and 75.514. Square knotted 

splices provide adequate current-carrying capacity and provide adequate 

strength. Splice rings presented problems on small cables since they 

tended to cut and break the cable at the point where it entered the splice 

ring (Tr. 100-101). At the present time, the square knot is still used, 

but the splice ring is placed over the square knot and MSHA district supervisor Henry Standafer approved of this practice and that is the way the 

men were "re-trained" to make the splice (Tr. 102). 

Mr. Couch testified that the use of a square knot is 60 percent better 

in terms of mechanical strength, conductivity, and flexibility than the use 

of a splice ring or a connector on a small cable, and in his experience, he 

has encountered no problems with overheating or decreased conductivity 

(Tr. 103). After the inspection, respondent used both methods, i.e., square 

knot and splice ring (Tr. 104). He has never encountered any problems with 

the use of a square knot, but problems have been encountered with regard 

to the use of splice rings, particularly with regard to slippage and flexibility (Tr. 105-106). Splices are usually made on the section by a repairman, and he does not believe there was an unwarrantable failure because the 

respondent was not trying to hide anything and was following what it 

believed was an acceptable practice since 1957 and no one had previously 

questioned it (Tr. 109). Respondent is very safety conscious and that was 

the case even when he was employed as an MSHA inspector (Tr. 110). 

1981 
On cross-examination, Mr. Couch testified that he did not recall 

inspecting the Shamrock Coal Company operations while he was an MSHA inspector. He was aware of the MSHA manual referred to by inspector Scalls, and 

was familiar with the infor.:nation dealing with sections 75.514 and 75.604, 

and he was aware of violations issued under those sections while he was 

employed as an MSHA supervisory inspector {Tr. 111-114). A square knotted 

cable splice would only be checked if there were visible signs of damage 

such as poor outer jacket bonding or peeling, and there are no procedures 

for inspecting cables splices (Tr. 117). A square knot splice could be 

subjected to a tremendous amount of pulling and tension without deterioration, he has never heard of such deterioration occurring, and has not conducted any pull tests with regard to the square knot (Tr. 118). At the 

present time all cable repair personnel make the sa:ne square knot splice as 

was made prior to the inspection (Tr. 119). Mr. Couch conceded that the 

use of the splice ring in conjunction with the square knot provides an added 

safety feature {Tr. 133). 

Findings and Conclusions 

The original citation as issued by the inspector charged the respondent 

with a violation of section 75.514, which reads as follows: "All electrical 

connections.or splices in conductors shall be mechanically and electrically 

efficient, and suitable connectors shall be used. All electrical connections or splices in insulated wire shall be reinsulated at least to the same 

degree of protection as the remainder of the wire. 

The citation was subsequently modified to change the section cited 

from 75.514 to 75.604, which reads as follows: 

When permanent splices in trailing cables are made, 

they shall be: 

(a) Mechanically strong with adequate electrical 

conductivity and flexibility; 

(b) Effectively insulated and sealed so as to 

exclude moisture; and 

{c) Vulcanized or otherwise treated with suitable 

materials to provide flame-resistant qualities and good 

bonding to the outer jacket. 

'lbe condition or practice described on the face of the citation alleges 

that the permanent cable splice in question was not mechanically efficient, 

in that the splice was made by "twist connection of the cable conductors. 11 

The inspector's written statement made at the time the citation issued (Exh. 

P-10), reflects that the splice was made with "twist connections" and the 

inspector observed that the "cable could be pulled apart at splice which 

would expose energized power wires." The narrative statement prepared by 

the assessment officer containing his recommendations as to a proposed civil 

1982 
penalty (f.xn. P-6) contains the conclusions that the splice was made by 

"twisting the wire ends together" and that a cable fire could result "due 

to ilign resistance from the improper connections." Abatement was achieved 

by installing a new cable, and as part of the abatement process, MSHA 

required the respondent to retrain its personnel as to the "proper way" to 

make a splice. 

There is no dispute as to whether the splice in question was in fact 

tied in a square knot. As a matter of fact, the testimony and evidence 

adduced establishes that respondent readily acknowledged the use of square 

knots throughout the mine in the past. Further, the evidence also establishes that square knots are still used in the making of permanent splices 

and HSHA has approved of the practice provided a spliced ring is added as 

an additional safety feature. In short, the square knot, which MSHA has 

previously condemned, is presently in use in the mine, as long as a ring 

is attached over the square-knotted splice to keep it secure. 

The square knotted splice in this case was detected by the inspector 

during the course of his inspection of a previously cited violation dealing 

witn an unrelated condition. During his inspection to determine whether 

the previous violation had been abated, he detected a danaged trailing cable 

on a roof bolter. Upon further examination of the cable, and after it was 

opened, ne observed that the conductors had been square knotted and that no 

splice ring was installed. Were it not for the fact that the cable was 

damaged, he would never have known that the conductors inside the cable were 

tied in a square knot. The inspector was initially prompted to open the 

cable and check the splice after detecting damaged cables on other pieces 

of equipment, and that damage was unconnected with the manner in which the 

splice in question was made (Tr. 62)~ After observing the damaged cable in 

question, he ordered the equiF~ent shut down and taken out of service 

because the cable failed to :neet the requirements of section 75.514 (Tr. 

65). The previous citations which were being checked for abatement had 

nothing to do with the use of a square knot to make the splice (Tr. 73). 

The defective splice was only on one location on tne entire 500 feet of 

cable (Tr. 77). 

The citation here was not issueo because of the damaged cable. The 

inspector testified that hiS-Concern was with the fact that the use of a 

square knot was not a proper method for splicing an electrical connection 

because he believed that such a splicing method resulted in an incomplete 

cross-sectional connection which somehow detracted from the total currentcarrying capability of the conductors, thereby resulting in a possible "hot 

spot'' in the cable. In addition, he obviously believed that the use of 

a square knot, rather than an MSHA-approved splicing kit, could result in 

the separation of the conductors, thereby leading to a possible exposure 

of energized wires. Although the inspector did testify as to the condition of the cable, his testimony in this regard is somewhat confusing and 

contradictory. For example, at one point in his testimony he stated that 

the splice was not well-insulated or sealed so as to exclude moisture and 

that it was in a "very ragged" condition (Tr. 55). He also indicated that 

1983 
the :noist.ure seals were damaged because they were split .in such a fashion 

as to expose the inner conductors (Tr. 56). His earlier testimony was 

that the factors of moisture seal and vulcanization with respect to a 

square-knotted splice remain constant and that the only issue presented is 

.whether the splice in question was mechanically strong so as to insure 

adequate conductivity and flexibility (Tr. 36). When asked to clarify his 

testimony concerning the requirements of subsection (a) of section }5.604. 

dealing with the mechanical strength of the cable, subsection (b) dealing 

with effective insulation and seals to exclude ;noisture, and subsecti.on ( c) 

dealing with vulvanization so as to provide a flame-resistant quality for 

the cable, the inspector conceded that he had previously stated that there 

was no problems with the requirements of subsections (b) and (c) dealing 

with !lloisture seals and vulvanization and that he issued the citatl.on 

charging a violation of section 75.604 because he believed that the use of 

a square knot did not insure adequate cable conductivity and flex.ibility 

.<Tr. 81, 82) • 

Based on the evidence adduced in this case, it seems clear that the 

inspector and MSHA have never conducted any tests or studies to determine 

the mechanical and electrical efficiency of square knots on a. cable splice, 

notwithstanding the fact that respondent's testimony here indicates that 

the use of such square knots has been an ongoing past arid present practice 

in the mine and possibly throughout the industry for a number. of years. · 

He also testified that the question concerning the relative mechanical 

strength of a splice made with a square knot and one made with a splicing 

ring can only be determined by means of a "pull-test." In th~se circumstances, I conclude that the thrust of the alleged violation is the 

inspector's belief that the use of the square knot rendered the splice 

inefficient because over a period of. time it would deteriorate the electrical conductivity of the cable (Tr. 52). Peti.tioner' s counsel conceded 

that the issue is the use of the square knot as a method for splicing t.he 

cable in question (Tr. 80). In order to. sustain its burden of proof with 

respect to the alleged violation, the petitioner must establish by a preponderance of credible evidence that the use of the square knot in ~aking 

the splices in question in fact rendered the splice mechanically or electrically inefficient. After careful analysis and review of the evidence 

in support of its case, I conclude that the petitione~ has failed to 

establish that the use of a square knot, per~ rendered the splice in 

question mechanically or electrically inefficient, and my reasons. for this 

conclusion follow. 

In~ v. Empire Energy Company, DENV 78-422-P,,decided by me on 

December 8, 1978, I sustained a citation for a violation of the provisions 

of 30 CFR 75.603, and found that a temporary splice in a trailing cable 

of a water pump was not made in a "work..'llanlike manner" or "mechanically 

strong" because it was made by the use of a square knot rather than. a 

splicing ring. Section 75.603 requires that a temporary "splice, ... which 

is defined by that sectic;m as "the mechanical joining of one or more ·conductor S that have been Severed, II be made in a WOrki.uanlike manner and be 

mechanically strong. My finding of a violation in Empire Energy was based 

1984 
on the facts of tnat case, and MSHA there sustained its burden of proof 

when it ~stablished that a splice made by use of a square knot resulting in 

a splice three times the size of a normal splice made with a splicing ring 

was not one which is mechanically strong or made in a workmanlike manner. 

In that case, contrary to the position taken by the respondent in this 

case, Empire conceded that the use of square knots in a splice was not an 

acceptable practice in its mine. Further, in that case, MSHA t~ok the 

position that the critical issue presented was not whether Empire used a 

square knot, but rather, whether the requirements of section 75.603 were 

violated. 

In the instant case, respondent is charged with a violation of section 75.604, which is a statutory provision. That section does not contain 

a definition of a permanent "splice" as does section 75.603, nor is there 

any requirement ·that a permanent splice be made in a "workmanlike manner." 

The.only requirement relied on by MSHA to support the citation is the 

requirement contained in clause (a) of section 75.604 that the splice be 

mechanically strong with adequate electrical conductivity and flexibility. 

In issuing the citation, the inspector relied in part on an MSHA manual 

which mentions the use of splice insulation kits, and he believes that the 

use of any method for making splices short of those kits does not comply 

with the requirements of section 75.604, notwithstanding the fact that the 

manual section quoted specifically states that "any deviation from the use 

of a splice kit would require additional evaluation or testing by the Bureau 

and if used without such evaluation, would constitute noncompliance with 

this provision." This manual language, if taken at face value, means that 

any deviation from the use of a splicing kit in making a permanent splice 

would subject an operator to a citation for violation of section 75.604 

even though the inspector is oblivious of the fact that and MSHA testing 

had been done on that splice. In short, it seems obvious here that the 

inspector treated the manual reference as part and parcel of the mandatory 

requirements of section 75.604. In addition, he was also obviously influenced by the interpretive memorandums alluded to during his testLnony. 

Tne proble·m with this is that such manual references and internal memorandums are clearly not mandatory requirements binding on a mine operator, 

and the manual clearly does not have the status of mandatory Secretarial 

regulations, Kaiser Steel Corporation, 3 IBMA 489, 498 (1974). 

The testimony adduced in this case reflects that a splice made by means 

of a square knot cannot readily be discovered by casual visual observation, 

unless of course it is so large or damaged so as to call one's attention to 

it. In this case, the inspector discovered the square knot when he opened 

the splice up while in the process of looking at other damage. Further, 

as indicated earlier, square knots are presently still in use in the mine 

with MSHA's blessing, with the stipulation that a splice ring also be used. 

The point is, that the inspector, on the facts presented here, believes 

that the use of a square knot for making a permanent splice is~.!!. a 

violation because a square knotted splice is not mechanically strong and 

does not provide adequate electrical conductivity and flexibility. However, these are unsupported conclusions by the inspector. As such, they 

1985 
may not legally support the citation, and for that reason I conclude that 

MSHA has failed to prove a violation and the citation is VACATED. It seems 

to- llte tnat if MSHA believes that the use of approved splicing kits is· a 

tested and proven method for insuring the mechanical ,and electrical integrity of a splice, then it should take steps to promulgate a clear and 

concise regulatory standard requiring the use of such splice kits, rather 

than relying on some nebulous and general statutory language which puts 

tne inspector in the position of legislating as to what the standard should 

be, and leaves a mine operator in the vulnerable position of not knowing 

what its responsibilities may be in terms of compliance. The promulgation 

of a regulatory mandatory standard which directly requires the use of an 

MSHA splicing kit, or the amendment of MSHA's Schedule 2G, Part 18, 

Title 30, Code of Federal Regulations, will go a long way clearing up what 

I consider to be a recurring problem with respect to the enforcement of 

mandatory safety standards containing broad and general language which 

leaves much to the imagination. The citation is VACATED. 

ORDER 

On the basis of the foregoing findings and conclusions, Citation 

No. 0132945, May 25, 1978, citing an alleged violation of 30 CFR 75.604 

is VACAT£D and this case is DISMISSED. 

J/444 i Ir I {J;;;; G6l>rg~ p: iJ1t!jf;-'tV1 

laministrative Law Judge 

Distribution:· 

George Drumming, Jr., Esq., U.S. Department of Labor, Office of 

the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Neville Smith, Esq., Shamrock Coal Company, P.O. Box 441, 

Manchester, KY 40962 (Certified Mail) 

Standard Distribution 

1986 
'FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

READYMIX SAND & GRAVEL COMPANY, 

INC., 

Respondent 

Docket No. WEST 79-66-M 

A.C. No. 35-00533-05002 R 

M.F. Pit and Plant 

DECISION 

Appearances: 

Before: 

Marshall Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Alex M. Byler, Esq., Pendleton, Oregon, for Respondent. 

Administrative Law Judge Michels 

This matter is before me for hearing and decision on the petition for 

assessment of civil penalty filed by the Petitioner on May 14, 1979, pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 820(a) (the Act). The Respondent, Readymix Sand & Gravel . 

Company, Inc., filed a timely answer to the petition denying the charges 

and contending that no fine should be assessed. A hearing was held in 

Pendleton, Oregon on August 30, 1979, and the parties appeared through 

counsel. Posthearing briefs were filed by both sides and Respondent 

filed a reply brief. 

This action concerns a charge of a refusal to allow inspectors to 

enter Respondent's mine for the purpose of inspection. The issue arose on 

November 29, 1978, when Jim Busch, President of the Respondent, refused to 

grant inspectors entry to the operator's crushing and cleaning plant; 1/ · 

The Respondent was charged with a violation of section 103(a) of the Act 

for this refusal. 

1/ Inspector Darwin Chambers issued a citation to the Respondent on 

November 29, 1978, in which the condition or practice is described as 

follows: 

"On November 29, 1978, Jim Busch, President, refused to allow Darwin G. 

Chambers and John M. Moore authorized representatives of the Secretary, 

entry to the crushing and screening plant of the MF Pit and Plant, for the 

1987 
The Respondent has raised two defenses: (a) that a statute allowing 

a warrantless administrative searcl1 is invalid and ( b) that the crusni.ng 

and screening plant involved, located separate from the pit, is not a plant 

used at, and in connection with, an excavation or mine so as to come within 

the definition of "mill" in 30 c.eR 55.2. For these reasons, Respondent 

asks that the proceeding be dismissed. 

(a) Non-consensual Searcn 

Respondent's first arg~nent concerns the warrantless search. In contending that the statute in allowing a warrantless administrative search 

is invalid it cites Marshall v. Barlow's Inc., 436 U.S. 307 (1978). 

Respondent also cites a recent decision in U.S. District Court for the 

District of New Mexico, Valley Transit Mix. Inc. v. Marshall (cited in 

1 ~SHC 2081 (1Y79). 

Petitioner has submitted, however, the recent decision of the Sixth 

Circuit in Marsnall v. Nolichuckey Sand Company. Inc.,(No. 79-1111, decided 

October 5, 1979), in which the court concluded that the enforcement needs 

in the mining industry make a provision for warrantless search reasonable 

and that a warrant is not needed for periodic inspections of "active workings" of sand and gravel "mines." Likewise the Third Circuit in Marshall 

v. Stoudt's Ferry Preparation Company, 602 F.2d 589, 593 (1979) held that 

"th.a dine Safety Act's enforcement scheme justifies warrantless inspections 

and its restrictions on search discretion satisfy the reasonableness 

standard asserted in Barlow's." 

In light of these direct Federal Circuit Court precedents, Respondent's 

contention on warrantless search is rejected. 

( b) Jurisdiction Over the "Mill" 

Facts 

There are no serious disputes about the facts. On November 29, 1978, 

inspectors Darwin G. Chanbers and John M. Moore, arrived at the M. F. Pit 

and Plant facility for the purpose of inspection of the Respondent. Ja:nes 

Busch, President of the co-:npany, informed the inspectors that he would not 

permit them to conduct an inspection of the crushing and cleaning plant 

until ne had consulted his lawyer. Hr. Busch did not deny access to the 

actual gravel mining area, i.e., the pit. He drew a distinction between 

the pit where the material ~as excavated and the plant where crushing, 

fn. l (continued) 

purpose of conducting an inspection of the crushing and screening operations 

of the mine pursuant to Section 103(a) of the Act. Mr. Busch stated that 

federal inspectors could not enter his mine to conduct an inspecti9n of the 

crushing and screening plant. i-lr. Busch was advised that this operation 

was covered by tne 'Act' • " 

1988 
~l.Xing and other processing takes place and believed that the latter was 

not subject to HSHA's jurisdiction. The plant and the pit are separated 

by a s:nall distance. a matter to be discussed below in further detail 

(Tr. 5-6, 17-20). 

Tile inspectors discussed the Act and regulations with Mr. Busch and 

asserted they ciici have jurisdiction. In the course of these discussions, 

Mr. Husch called his lawyer who affirmed to him that he was not subject to 

the regulations under the Act. On that day, Hoveillber 29, 1978, Inspector 

Chambers issued a citation. The following day, the same inspectors 

returned and they were then permitted to conduct an inspection. The 

refusal to permit inspection covered a period of less than 24 hours. In 

the period between visits of the inspectors on November 29, Mr. Busch, 

according to his testimony, was advised that he was subject to heavy fines 

and possioly a prison term if he refused entry. He thought of this as a 

"mighty big cluo" and so he allowed entry when the inspectors returned the 

following day. ~o warrant was shown (Tr. 6-7, 18-20). 

The locations of the two facilities in question, the plant and the 

pit, are shown on a map received as Respondent's Exhibit R-1. They are 

separated by a distance of approximately 460 feet (Tr. 28). 

The Respondent basically deals in rock products. It excavates sand 

and gravel fro;n open pits. This material is processed by crushing, screening and -washing. Some is sold as crushed rock and some is manufactured ·"'·~.,'v 

into asphaltic concrete, ready mix conc.rete and concrete masonry units (Tr. 

11). The company has several sites from which it extracts sand and gravel. 

One is designated the Milton-Freewater (M-F) pit and plant site which is 

located in Umatilla County. These are the facilities involved in this 

proceeding (Tr. 11-14). 

The sand and gravel produced at the pit site is largely processed at 

the nearby plant. About 1-1/2 percent is processed elsewhere. Some 

material fro~ other pits is also processed at the Milton Freewater plant 

but the record does not disclose the percentages. It is a fair inference 

from the whole record that most of the material processed at the M-F plant 

comes from the nearby pit. The plant covers some 7.75 acres and it has an 

office, scale, concrete batch plant, asphaltic concrete mixing plant, rock 

crushing and screening plant, and other facilities (Tr. 30-36, 14). 

The plant produces 100 ,000 to 150 ,000 tons per year. Approximately 

35 persons are employed at the plant and 3 at the pit (Tr. 33-34, 37). 

The Respondent sells its products in interstate commerce (Tr. 12). 

The sand and gravel excavated at the pit is hauled by truck to the 

plant. Some ti~es of the year for a few months the Walla Walla river, 

which has a water course between the two properties is flooded, and the 

material is hauled on county roads. This is about a 10 ~inute trip. 

Otherwise the river bed is completely dry, and the material is hauled 

1989 
directly across the separating strip, a distance of some 460 feet.. This 

short i1aul takes 4-5 minutes. From tl1e actual site of the pit to the 

plant location is a distance of 1,600 - 1,700 feet (Tr. 15-16, 28-29) .. 

It is not only the river bed that separates the plant and pit, nowever.. within the 460 feet strip there is land owned by a third party, 

namely, Umatilla County. Respondent and Umatilla County have an arrangement whereby, the county, whose only access to the property is through 

Respondent's pit site, is given a right of entry through Respondent's 

fence and gate. There apparently is no quid~ quo.. The county at times 

has denied a right of way to the Respondent across its property.. This 

happened in 1972 and other times, but not in the last year, Respondent 

has no easement and uses the county property only on a permissive basis 

(Tr .. 16-17, 21-26). 

Discussion 

In approaching the issue of jurisdiction, the first inquiry is whether 

a materials plant such as above described, is included within the Act as 

a mine and thus subject to the provisions of the Act under section 4 .. 

Section 3(h)(l) defines coal or other mines in pertinent part as "an area 

of land fro.n which minerals are extracted in nonliquid form * ·* * and 

(C) lands, excavations** * structures, facilities, equipment * * * used 

in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals * * * .. " 

Tnere apparently is no debate in this matter concerning the applicability of the Act to Respondent's crushing plant facility. Because of 

certain terminology in the standards, Respondent contends that its plant 

is excluaed from regulation but it does not argue that the Act is 

inapplicable .. 

The plain words of the statute, as quoted above, leave little if any 

doubt that the definition of a mine includes tne kind of milling facility 

operated by the Respondent. Aside from. that, the legislative history 

i,,ndicates Congress' intention that tne coverage of the Act be broadly 

~interpreted and specifically that milling is included. See for example, 

v s .. Rep. No. 95-181, 95th Cong. 1st Sess~ 1, 14, reprinted in the 1977 u.s. 

Code Cong .. & Admin. News 3401, 3414. 

The Third Circuit Federal Court of Appeals in Marshall v. Stoudt's 

Ferry Preparation Compa_!l_y, 602 F.2d 589, 592 (1979)~si-ated--that1-t agr~ed 

with the district court 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. 

Thus, there appears to be no doubt that Respondent's plant or mill 

is subject to the Act and the regulations. 

1990 
Respondent argues, however, that the phrasing of the definition of 

the term "miil" under Part 55 (see also Part 56) serves to limit the j urisdiction of the regulatory agencies·. Part 56 contains standards directly 

applicable to sand, gravet and crushed stone operations. At 30 CFR 

56.2 the following is found under defintions: '"Mill' includes any ore 

mill, sampling works, concentrator, and any crushing, grounding, or 

screening plant used at, and in connection with, an excavation or 1nine. 11 

The same definition is contained in Part 55 which covers health and safety 

~tandards for metal and norunetalic open pit mines. 

Respondent's argument is to the effect that this definition means if 

the plant is not contiguous to the mine or on the same tract of real 

property upon which the mine is locatea, that it is not a mill or plant 

subject to inspection . In this case, it argues that because the plant was 

comp letely separated from the pit by a minimum of at least 460 feet, and 

sometimes mucn ~ore depending upon the season or other events, the plant 

was not in fact "at" the pit. 

In response to this argument, Petitioner in its post hearing brief 

contends in effect that tne Act is controlling and that "[n]o geographical 

limitation can or should be grafted upon the statutory definition by the 

usage of a certain preposition used in a regulation drafted prior to the 

1977 dine Safety Act." 2/ Petitioner also makes the point that the word 

"mill" is followed by the word "includes" whereas all of the other words 

in the definitional section are followed by ~he word "means" and that 

the drafters by using such tenninology did not intend the definition for 

"mil 111 to be all inclusive. Further, Petitioner argues that the definitions in Parts 55 and 56 only refer to the standards which contain "the 

particular word defined and if such word is not used, its definition has 

no relevance to the standard. 

I accept the Petitioner's contention to the effect that the definition of the word "mill" as it appears in Parts 55 and 56 of 30 CFR is not 

a declaration of the Secretary's policy on the enforcement of the Act 

over milling facilities. The Secretary otherwise has indicated in the 

interagency agreement between MSHA and the Occupational Safety and Health 

Administration that he has retained jurisdiction over milling processes 

and nothing in the agreement suggests that such jurisdiction is liinited 

by the relationship of the plant to the pit. Federal Register, Vol . 45 

No . 75 pg. 22,829, April 17, 1979. In the circumstances, I don't believe 

that the definition of "mill" alone in the standards can be considered as 

a general limitation· on the Secretary's authority to proceed under the Act. 

If these definitions have any application, it is limited to the enforcement 

2/ This argwnent is distinctly at odds with the position taken by the 

Petitioner at the hearing and the discrepancy is pointed out by the 

Respondent in its posthearing reply brief. I accept the position taken 

by Petitioner in its posthearing orief as the considered view of the 

Secretary. 

1991 
of the mandatory standards in Parts SS and 56 in which the word "mill" 

appears. I have been unable to locate any standard in those parts, however , using the word "rail 1." 

In this instance, MSHA has cited the Respondent, not for a violation 

of any ~andatory standard uut for a violation of a section of the Act 

itself. In light of the discussion above, I conclude that the definition 

of tae word "mill" in Parts 55 and 56 is not related to tne charge and is 

μ6t a li.:nitation on the autnority of tne Secretary to allege a violation of 

/the Act. 

}ioreover' even if the ":nill" definition should be construed as applicable and oinding upon the Secretary, r· would further conclude that nothing 

in the definition woulci prevent tμe Secretary from proceeding against the 

mill or plant operated by the Respondent. As the Petitioner observed in 

its brief, the use of the word "includes," especially where all other tenns 

defined are followed by the word ".:neans," clearly suggests that other facilities are included although not specified. The definition in otner words 

is not all inclusive and, accordingly, the Secretary is free to apply the 

law, as it does, to Respondent's mill. 

Finally, the preposition "at" in the definition does not necessarily 

require that a mill l:>e "on" the pit property. Webster's Dictionary defines 

"at" in part as a·word used as a function word to indicate presence in, 

on, or near: as the presence of the occurrance at a particular place. 

Cases cited in Words and Phrases under "at" indicate that the preposition 

"at" is commonly used as toe equivalent of near or about e.g., Jordan v. 

Board ot Supervisors of Tulare County, 221 P.2d 977, 979 and Abernathy v. 

~eterson, 225 P 132, 133. In this instance the M-F plant or mill was 

clearly near and also operated in conjunction with the pit even though not 

contiguous. 

In light of the above, I find that Respondent's M-F plant or mill 1s 

subject to the provisions of the ~ct. 

The charge is that Respondent by refusing entry to authorized representatives of the Secretary for the purpose of an inspection violated 

section 103(a) of tne Act. This section authorizes inspections as follows: 

"Authorized representatives of the Secretary * * * shali ;:nake frequent 

inspections and investigations in coal or other mines each year * * * 

[and] shall have a right of entry to, upon, or through any coal or other 

mine." 

Section 104(a) provides that an inspector shall issue a citation to 

an operator violating the Act. It states in part: 

If upon inspection or investigation, the Secretary or 

his authorized representative believes tnat an operator of a 

coal or other mine subject to this Act has violated the Act, 

1992 
or any mandatory health or safety standard, rule, order, or 

regulation pr~~ulgated pursuant to this Act, he shall, with 

reasonable pro,uptness, issue a citation to the operator. 

With regard to penalties, section llO(a) provides that an "operator 

of a coal or other mine in which a violation occurs of a mandatory standard 

or who violates any other provision of this Act, shall be assessed a civil 

penalty by the Secretary * * *." [Emphasis added.] 

In view of such language it seems clear to me that a refusal of entry 

to inspectors who seek to conduct an inspection of a mine constitutes a 

violation of the Act for which civil penalties may be assessed. 

There is no dispute about the facts on this record that the operator 

did refuse entry to authorized representatives who sought to conduct an 

inspection. Thus, I find that the operator did violate 103(a) of the Act, 

as charged, and is subject to assessment for such violation. 

Assessment 

History of prior violations: The record contains no evidence 

of prior violations. 

Appropriateness of penalty to the size of the operator: The 

operator has 30-35 employees at its plant and office and three employees 

at the pit (Tr. 16, 32). It produces 100,000 to 150,000 tons annually 

(Tr. 37). I find this to be a small to medium sized operation. 

Effect of the penalty: There being no contrary evidence, I find that 

the penalty assessed will not effect the operator's ability to continue 

in business. 

Good Faith: I find that the operator, after it had determined its 

legal liability, exhibited good faith in achieving rapid compliance by 

admitting the inspectors. This happened within 24 hours of the refusal 

of entry. 

Gravity: I find this violation to be serious because the entire 

effectiveness of the law depends upon access by inspectors for the making 

of inspections. 

Negligence: I find only slight negligence because the Respondent 

in good faith believed that it had a legal right, based on certain language 

in Parts 55 and 56, to deny access to the inspectors. 

Penalty: MSHA requests a penalty of $100 for this violation. I have 

found the Respondent is chargeable only with slight negligence. It was in 

effect seeking to establish a principle, which it was advised was valid~ 

for the refusal of entry. It is not clear that it would have obtained a 

~earing on the issue without first refusing entry to the inspectors so as 

1993 
to establish a basis for review. Thus, this was in a sense a technical 

violation. In these circumstances, it seems to me that only a nominal 

penalty is warranted and I will assess a penalty of $10. 

ORDER 

It is ordered that Respondent pay the penalty of $10 within 30 days 

of the date of this decision. 

Distribution: 

Franklin P. Michels 

Administrative Law Judge 

Marshall Salzman, Esq., Office of the Solicitor, U. S. Department 

of Labor, 10404 Federal Building, 450 Golden Gate Avenue, Box 36017, 

San Francisco, CA 94102 (Certified Mail) 

Alex M. Byler, Esq., 222 S. E. Dorion Avenue, P. O. Box 218, 

Pendleton, OR 97801 (Certified Mail) 

1994 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

5203 Leesbu~g Pike 

Falls Church, Virginia 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KERR-McGEE NUCLEAR CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-201-P 

A.C. No. 48-00837-05001 

Bill Smith Mine 

DECISION ON REMAND 

Appearances· Thomas E. Korson, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Richard F. Campbell, Esq., Oklahoma City, Oklahoma, 

for Respondent. 

Before: Judge Lasher 

This proceeding arose under section llO(a) of the Federal Mine 

Safety and Health Act of 1977. A hearing on the merits was held in 

Denver, Colorado, on September 27, 1979, at which both parties were 

well represented by counsel. After considering evidence submitted 

by both parties and proposed findings of fact and conclusions of law 

prof erred by counsel during closing argument, I ent.ered a detailed 

opinion on the record. !/ It was found that the violation charged 

in the withdrawal order did not occur. My oral decision, containing 

findings, conclusions and rationale appears below as it appears in 

the record: 

"This is a civil penalty proceeding which arises under 

the Federal Mine Safety and Health Act of 1977. The alleged 

violation occurred some 20 days after that Act went into 

effect. 

The parties have been represented by competent counsel 

who I commend initially for their complete and, I would 

say, beyond the ordinary presentations in this case, and 

in their demeanor, their preparation and their general 

1/ Tr. 180-187. 

1995 
conduct of their respective actions and representations 

in this case. 

The parties have waived the right to file briefs. 

There is a question whether the right to submit proposed 

findings of fact and conclusions of law are made mandatory by the Administrative Procedure Act's provision in 

the sense that the same can be insisted upon being put 

in writing. My own view is that such should be given to 

the discretion of the administrative law judge, but in 

this case that issue is not being posed. I will not 

make a specific finding to the effect that oral presentations sufficiently meet the APA requirements. 

The issues in this case primarily are whether or 

not a violation of the cited regulation, 30 CFR 57.3-20 

occurred, and if so, whether the same resulted from 

Respondent's negligence and whether or not such alleged 

violation was serious. 

Preliminarily, I find that based upon stipulations 

submitted to me, that this is a large operator that 

which during the time it was operating the Bill Smith 

Mine, was producing approximately 243,000 tons annually 

of coal, and that on or about the time of the alleged 

violation it employed approximately 75 employees. Based 

upon the evidence before me, I would not conclude that 

this is one of the industry giants. On the other hand, 

it is a large operator, to be distinguished from a small 

or medium-sized operator in the context of a three-level 

spectrum. 

Also I find, based upon stipulation, that it has no 

history of previous violations, or that it abated the 

withdrawal order which contained the citation of the 

violation alleged in good faith, meaning that it proceeded to rapidly achieve compliance with the standard 

allegedly violated after being issued the withdrawal 

order. 

I finally find preliminarily that any proposed penalty I would make in this case would not affect the 

Respondent's ability to continue in business. 

Turning now to whether or not a violation did occur, 

such question revolves necessarily upon the construction which should be given the regulation allegedly violated. 57.3-20 provides, and I quote, "Ground support 

shall be used when the operating experience of the mine, 

or any particular area of the mine, indicates that it is 

1996 
required. If it is required, support, including timbering, 

rock bolting, or other methods shall be consistent with the 

nature of the ground and the mining method used." 

As I will note more clearly subsequently, the second 

sentence I find to be the critical one, and there are certain key words in that second sentence which, I believe, 

govern this proceeding. I do not find the salient, 

indeed critical, factual setting of this proceeding to 

be in substantial dispute. There is no question is there 

but that a rock fall did occur on March 29, 1978, and that 

some 12 to 24 hours earlier blasting had occurred in the 

general area on a prior shift. 

I do find that the roof fall did occur in what is 

termined an "open stope" area, and that Respondent's 

mining methods were such th.at in open stope areas no 

ground support was required. 

I find that on March 29, this inspector, Gary Frey, 

properly issued Withdrawal Order No. 338802, which is 

the subject of this proceeding, and that the same was 

issued prior to noon on said date, and further, that 

the order was issued after Inspector Frey had observed 

the area where the rock fall occurred, which observation occurred within moments or within minutes after 

the fall. 

I find that there were several pieces of rock which 

fell, one of which went or weighed approximately 35 tons. 

I find that the withdrawal order was properly issued; 

since its purpose was to insure the safety of persons in 

the area. 

I find that in the area where the rock fall occurred, 

which was generally in the intersection clearly indicated 

on Exhibit R-1, and also shown clearly Exhibits P-1, 2, 3 

and 4, had been supported by efforts on Respondent's part 

by the use of bolts and wire mesh. 

I do not find, on the basis of the testimony, that the 

bolts used to support the ground in the area of the roof 

fall had been used or were being used to slush from, as 

demonstrated by Exhibit P-7. I note, parenthetically, 

that while the purpose of P-7 was not to show the use of 

the bolt as part of the slushing process, but merely to 

show the process generally, that it does depict the same 

and that it indicates that the sheave block was being 

attached to such.· 

1997 
In finding that these bolts were not used as part of 

the slushing process, I note that the inspector, on crossexamination, did indicate that, and I quote, "it could 

have been that these bent bolts I saw were not used for 

ground support and that the bent bolts which the inspector 

did see lying on the ground after the roof fall, were only 

one or two in number." 

In any event, the inspector also indicated that roof 

bolts which had been weakened or bent by use in the slushing process only "could have contributed to the rock fall." 

On the basis of all the testimony, I am unable to 

infer from the fact that a rock fall occurred that one, 

there was some specific cause for the rock fall. I have 

not found in this proceeding any evidence specifically 

pointing to a direct approximate traumatic or other type 

of cause; or two, that the rock fall would not have 

occurred had other types of means of ground support been 

employed by Respondent. 

I recognize that such proof is difficult, if not 

impossible, to obtain in those circumstances. To establish precise causes or even other evidence from which 

inferences can be taken would have required a truly 

indepth study by experts, I believe, after this rock 

fall had occurred. 

In any event, and I believe the bottom line with 

respect to the use of the bolts and mesh methods, 

vis-a-vis timbering; which would include use of the 

stulls on the one hand or the square set timbering 

method on the other, does not provide the ultimate key 

to the resolution of this case. 

I make the finding, since they were one of the more 

blatant areas of dispute. The precise condition or practice described in the order then is that, "Adequate 

ground support is not being utilized in the 203 pillar 

stope access areas. A fall of ground occurred in the 

front access, approximately 35 tons. Men were traveling through this area." 

The question raised by the description qf the violation is, was there adequate ground support? The inspector 

testified that there was, in his opinion, inadequate support because there was no timbering. He indicated that 

had it been his decision, he would have used stulls. The 

question then arises, is there any provision or regulation 

that requires the use of timbering in the situation at the 

1998 
time and place involved in this proceeding? There is no 

such provision in the Act itself. The regulation which is 

cited, 57.3-20, consists of two sentences, the second of 

which I will repeat again at this juncture for the purpose 

of focusing on it. It states, "If it is required, support, 

including timbering, rock bolting or other methods, shall 

be consistent with the nature of the ground ari:d the mining 

method used." Support includes timbering, rock bolting or 

other methods. There is nothing in that provision which 

says in a given situation a given type of support is 

required. 

I note that in the normal situation where roof control 

plans are required, there is an effort to be more specific 

in terms of the requirement. I think there should be such 

a requirement in this case. I am sympathetic to MSHA's 

position in this case; I think a dangerous situation was 

occurring, and I do believe, from all the evidence, that 

there was a certain looseness, indeed sloppiness with 

respect to putting up signs in this area, in all the ways, 

in all the accessways, and I believe there are loopholes 

in the system here which could cause fatalities ultimately. 

I think that the regulations are lacking in the type of 

detail which is designed in the plans which must be 

approved by MSHA and which can be changed and updated 

periodically. 

However, the binding prov1s1on is that which I above 

quoted of the regulations. I construe it to do the following things: One, it gives the operator almost complete 

discretion on which type of ground support to install in 

a given situation. Two, the types of ground support 

which it can utilize, and I underline this word, includes, 

timbering, rock bolting or other methods. Three, that 

whatever method it employs shall be consistent with the 

nature of the ground and the mining method used. 

The evidence here is that its mining method was open 

stope, which would, one have required no ground support. 

The only question which I see is whether "The nature of 

the gr9und would require timbering of some kind." I am 

unable, on the basis of the record in this case, to conclude that that nature of the ground which was identified 

as sandstone, which in some places hard and some places 

soft, is such to conclude that timbering would be 

required. I therefore specifically find that that 

is no basis upon which I can apply the regulation to 

require the use of timbering. Even assuming there had 

been sufficient evidence of the nature of the ground 

1999 
involved to require timbering and to prohibit rock bolting, the evidence that this area in question was an open 

stope area is binding. I therefore conclude that there 

is no violation of the cited regulation because of the 

inadequacy of the governing law. 

I make the findings and conclusions of law specifically, one, there is no provision of law nor any regulation which requires the use of timbering, including 

the use of stulls or the square set timbeFing method, 

in the area where the rock fall occurred; two, the 

Respondent operator in this proceeding is not required 

by the Act or the pertinent regulations to prepare and 

submit for approval a ground support plan, particularly 

one which requires timbering in the factual circumstances which are the subject of this proceeding. 

Having found that no violation occurred, this proceeding is ordered dismissed." 

The petition having no merit, this proceeding is dismissed. 

$'7'~~4"~ft 

Michael A. Lasher, Jr., Judge 

Distribution: 

Thomas E. Korson, Esq., Office of the Solicitor, U.S. Department of Labor, 1961 Stout Street, Room 1585, Denver, CO 

80294 (Certified Mail) 

Richard F. Campbell, Esq., Kerr-McGee Center, P.O. Box 25861, 

Oklahoma City, OK 73125 (Certified Mail) 

2000 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520! LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

;•. 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEST 79-173-M 

Petitioner A.C. No. 04-00551-05001 

v. 

EXCEL MINERAL COMPANY, 

Docket No. DENV 79-454-M 

A.C. No. 04-00551-05002 

Appearances: 

Before: 

Respondent 

Sheep Springs Pit & Mill 

Docket No. WEST 79-174-M 

A.C. No. 04-02964-05002 

Excel Pit & Mill 

DECISION 

Judith G. Vogel, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Louis F. Fetterly, Esq., Los Angeles, California, for 

Respondent. 

Administrative Law Judge Michels 

These proceedings were brought pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c. § 820(a), by 

petitions for assessment of civil penalties filed by MSHA. Timely answers 

were filed by the Respondent in general denying the allegations and 

requesting a hearing. The cases were heard in Bakersfield, California, on 

October 30, 1979. A decision was made from the bench a~ ~o each citation 

in these three dockets except for one in which decision was reserved. 

These are hereby reduced to writing pursuant to 30 CFR 2700.65(a). Some 

corrections or clarifications have been made. 

Preliminarily, the Petitioner requested dismissal of Citation No. 371373 

in Docket No. DENV 79-454-PM. There being no objection, the petition was 

dismissed as to this citation with prejudice (Tr. S). This ruling is 

amended by further vacating Citation No. 371373 and as so amended, it is 

affirmed. 

Also pending was a motion to dismiss Citation No. 371370 in Docket 

No. WEST 79-173-M and Citation No. 371359 in WEST 79-174-M. There being 

2001 
no objection, this motion was granted and the petitions dismissed as to 

these citations with prejudice (Tr. 5). This ruling is amended by further 

vacating Citation Nos. 371370 and 371359 and as so amended is affirmed. 

Findings on Certain Criteria 

Findings, based on stipulations were made as to certain generally 

applicable criteria as follows: "* * * I find as stipulated, that there 

is no history of prior violations. I further find that this is a small 

operator as stipulated. I further find that the penalties to be [assessed] 

here will not impair the operator's ability to continue in business" 

(Tr. 8). 

It was further found that the Sheep Springs Pit and Mill and the Excel 

Pit and Mill were engaged in commerce and are subject to the jurisdiction 

of the Mine Safety and Health Review Commission (Tr. 8). 

WEST 79-173-M 

Citation No. 371370 - Vacated 

Citation No. 371375 

The following is the bench decision on this citation found at pages 

43-46 of the transcript: 

THE COURT: * * * This is my decision on citation 

number 371375: The condition or practice as alleged by the 

inspector is as follows: Quote, "The trailers at the docks 

were not all blocked from moving. Wheel chocks were available on chains secured to the docks.· Loading of trailers 

with forklifts is a continuous operation." 

The inspector cited the regulation or mandatory.standard 

number 55.9-37. That reads as follows: Quote, "Mobile 

equipment shall not be left unattended unless the brakes are 

set. Mobile equipment with wheels or tracks, when parked on 

a grade, shall be either blocked or turned into a bank or 

rib; and the bucket or blade lowered to the ground to prevent 

movement." 

The first finding required is that of the fact of vio-· 

lation. In this instance, the inspector testified that he 

observed two trailers which were free-standing and which were 

not chocked or blocked. There's testimony that -- to the 

effect that the trailers were blocked. But in this instance, 

I accept the testimony of the inspector that there were two 

non-blocked trailers. 

2002 
The portion of the standard cited by the inspector is 

the second.sentence. And this, as noted when I read it, 

requires that it be both mobile equipment and that it be 

parked on a grade. So far as whether or not this is mobile 

equipment, the testimony of the inspector is that it is in 

that category, and I accept his testimony. 

I have to admit that I have some difficulty with that 

since it seems to me that it is at least partially immobile 

and not a piece of mobile equipment in the sense of a tractor 

or a drag line or some other similar kind of equipment. 

Nevertheless, I do find that it was mobile. 

That brings me, then, to the point as to whether or not 

these trailers were on a grade. In spite of the fact that 

the inspector did indicate there was a slight or possible 

one percent grade, which I accept, I find that it is not a 

grade within the meaning of this regulation. 

Further, the inspector did testify that it was "more 

level than anything." In my view, it would be difficult to 

find a place on the earth that is absolutely level like a 

billiard table. And so, accordingly, the regulation could not 

have meant that. It surely meant, or means, a grade of some 

significance so that if the equipment does begin to roll, it 

will keep rolling. 

In this case, as I have already indicated, it was a 

relatively minor grade. So far as I could understand from 

this testimony, the effect of a trailer on this minor or one 

percent grade would be little different from that on a leval 

grade when pushed. 

Accordingly, my finding is that there has been no proof 

of a violation of this mandatory standard as charged~ The 

citation is hereby vacated and the petitioner dismissed as 

to that citation. 

I think it might be appropriate to add the comment that 

even though the standards do not literally seem to require 

chocking in that situation, I do not intend to mean by my 

decision that that practice of blocking or chocking those 

wheels isn't a good practice. There was testimony, and I 

would accept that, that there is always the possibility of 

the pushing of these machines, even though they are not on a 

significant grade, and therefore the possibility of danger 

and a hazard. My finding is only that it is not covered by 

this specific regulation. 

That completes, then, my decision. 

2003 
This decision is hereby affirmed. 

Docket No. WEST 79-174-M 

Citation Nos. 371343-371347 and 371349-371351 

These citations all concern Respondent's prescreening plant which was 

built out of used. equipment (Tr. 154). These were consolidated for decision at the Respondent's request so that consideration could be given to 

the issue comprehending all of the citations of whether the prescreening 

plant was under testing procedures at the time the citations were issued. 

The oral decision from the bench on the listed citations, which in 

general cover the alleged lack of guards or handrails, is contained in the 

transcript at pages 189-199 and is as follows: 

My decision on these seven citations will follow. For 

the purpose of the record, this concerns the following 

citation numbers: 371343, - 344, ~345, -346, -347, -349, 

-350 and -351. I don't believe that I will be able to decide 

these cases on an absolutely consolidated basis. But I would 

take the principal argument, or a principal argument you made 

first and dispose of that. That is, whether or not this was 

in a so-called testing posture. 

My remarks on that would be then applicable to each 

citation. 

The record will show that the testimony is in some dispute on this issue. The inspector has a clear view to the 

effect that this is not, quote, "Testing," unquote, for the 

reasons that it involved a prescreening plant that was in 

operation over a long period of time, and it did not involve 

the testing of a particular part of that plant on a limit~d 

basis, that is, where the screen or guard would simply be. 

taken off, or handrail, also, and when the particular repair 

or testing is done, replaced. On the other hand, we do have 

the testimony of Mr. Rutledge, who contends that the plant 

was in what I would think of as a start-up posture. It was 

composed of used machines that were put together and assembled, apparently over a relatively long period of time, and 

according to his testimony, it was not until May and June 

that any appreciable production occurred. His view was that 

this was testing. 

Now, one of the little technical or legal problems here 

is that I don't believe that any of the sections cited 

specify removal for testing.in so many words. And so far as 

railings are concerned, I'm not even sure there's anything 

in the regulations at all that would contemplate that kind 

of an exception. 

2004 
Now, when it comes to guards, we do have one statutory 

standard; which is 56.14-6, which says, "Except when testing 

the machineryguards shall be securely in place while 

machinery is being operated." · 

Now, I suppose, and I don't believe it's been really 

seriously disputed here that insofar as a guard is concerned, 

at least, under 56.14-1, that there could be removal for that 

testing purpose. In other words, 56.14-6, in a sense, modifies 56.14-1. And I don't believe there's any dispute on 

that. [Reference to Part 56 corrected to refer to Part 55. 

See below.] 

My finding would be on this that I would conclude as a 

general matter that this would not be what I would refer to 

as testing. I appreciate that there were problems in this 

start up over a period of time that might have dictated 

certain kinds of procedures that you wouldn't normally expect 

in a fully operational plant. And to an extent, I'm going to 

take that into account. 

However, for many of the violations, there were no 

screens, there were no guards. The inspector saw none, even 

in the areas. And in some it was admitted that the guards 

had not been made for the particular pulley or screen, whatever it may have been. So it did mean that over a relatively 

long period of time, that is, several months, even though it 

was not fully operational, it was in operation, and certain 

employees, apparently only two for the most part, were 

subjected to those hazards. 

In short, it was not the situation where a screen or a 

guard would be taken off temporarily for some particular repair 

or t~st and then placed back on, but it was more, in.my view, 

of an operational situation in which there were really no --

at least in some instances, no guards or railings supplied. 

So for that reason, I would reject that particular 

general argument. 

Now, I will take each one -- or at least some of them 

one by one. * * * The first citation in this group is 371343. 

The inspector·charged here, quote, "There was no handrail at 

the head pulley end of the walkway of the number one conveyor 

in the pit to prevent persons from falling about 20 feet to 

the ground below." He charged a violation of 55.11-2. 

2005 
I should interject at this point that I have been 

improperly referring to the 56 series. However, the regulations~ I believe, are exactly the same in both 55 and 56 as 

regards these particular standards. But I would like the 

record to be corrected on that point. 

To continue, 55.11-2 reads, quote, "Crossovers, elevated 

walkways, elevated ramps, and stairways shall be of substantial construction, provided with handrails, and maintained 

in good condition. Where necessary, towboards shall be provided,". There's no dispute in the testimony that there was 

no handrail at the end of the walkway. There is no dispute 

that this was a walkway. It did have a handrail for the full 

length except for the end where it was missing. The walkway 

was some 20 feet off the ground. The testimony of Mr. Gibbs 

is that this handrail at the end was removed for the purpose 

of doing some maintenance repair work on the conveyor. His 

notes showed that it had been removed -- or that work had 

been done on this part of the conveyor on the 11th and 12th 

of July. The citation was issued on July the 19th, which is 

almost seven days later. 

There's also testimony that the particular repair could 

not be accomplished with the rail in place. This testimony 

-- that was by Mr. Gibbs. And this testimony was disputed 

by Mr. Drussell. There was also the testimony of Mr. Gibbs 

that the plant was not in operation at the time. 

This is an example, I think, of an instance in which 

the standards are mandatory, and· they really don't provide 

any particular exceptions. It did result in a hazardous 

situation. 

There is, furthermore, dispute that this [rail] needed 

to be removed for the repair. Mr. Drussel testified that he 

did not understand why it had to be removed. Moreover, it 

seems that some temporary type of protection could have been 

provided if, in fact, it was necessary to remove that section 

of the rail. It is my impression from the evidence that this 

was too long a period of time to be considered in the context 

of a temporary removal for an immediate repair, because it 

appears that it had not been worked on for at least seven 

days. I think in all those circumstances, I have really no 

alternative except to find that this is contrary to that 

standard. 

So I find a violation of 30 CFR 55.11-2. 

The following covers my findings on the criteria: It 

is clear that the removed rail was readily visible, and so 

2006 
therefore it should have been known to the operator. On 

this, as well as all of these violations, I 1m going to find 

less than ordinary negligence because of the complications 

of the start up. In other words, there is testimony that 

the employees of the operator did not believe they were violating any law because they thought they were in a testing 

posture. So I will take that into account on this as well 

as the others. 

I belieye this is a serious violation, because if there 

should be an accident and somebody should fall from that 

height, it could be a serious injury. So I find it to be 

a serious violation. 

It was abated, according to the testimony, within the 

time set by the inspector, and I so find. Taking all of 

those factors into account, I hereby assess a penalty of 

$25 for thi~ violation. 

The next citation is 371344. The inspector charged, 

quote, "There was no stop cord or railing along No. 1 

conveyor in the pit, to prevent falling on the conveyor and 

being carried along it to the end where it emptied into a 

vibrating screen." He charged a violation of 30 CFR 55.9-7. 

That standard reads, quote, "Unguarded conveyors with walkways shall be equipped with emergency stop devices or cords 

along their full length." My finding on the fact of violation is as follows: The inspector testified that on the 

number one conveyor there was no protective guard along the 

walkway between a person walking on that walkway and the 

conveyor; and further, that there was no stop device. This 

testimony is disputed by Mr. Gibbs, who testified that there 

was a screen in place along that walkway. And a picture was 

put in evidence, identified R-1, which shows such a screen. 

However, it is clear that that picture was taken long after 

the citation was issued. 

On this citation, there's a 100 percent difference on 

the question of whether or not a screen was in place. It's 

difficult for me to find any way to determine who exactly 

may have been right and who may have been wrong. A screen 

as shown by the picture is something that could hardly be 

overlooked. Yet, the two witnesses in good faith, I assume, 

testified exactly the opposite about the existence of that 

screen. If a screen did exist, I think it's clear there was 

no violation. There are some factors here which suggest to 

me that possibly I should accept the inspector's testimony. 

But about the only one that is worth mentioning would be the 

fact that there were other screens and guards not in place. 

But I don't know that that's sufficiently strong to overcome 

the testimony that there was a screen in place. 

2007 
In such a situation as this, I sometimes go back to the 

principle that the burden of proof is on the government by 

a preponderance of the evidence where there is really no 

way to make a determination between the two e:Xactly opposite 

pieces of testimony. I would have to conclude that the 

government did not carry its [burden of proof as] required. 

And I would like to make clear, however, that that does 

not mean that I did not consider the inspector's testimony 

credible, but Mr. Gibbs was credible, also. And I believe 

that they both testified in good faith as to what they saw, 

and for some reason they saw different things. And so I 

would just rely on the burden and find in this instance no 

violation. 

Accordingly, as to citation 371344, the citation is 

vacated and the petition is dismissed as to that citation. 

I'm going to try to handle, to speed this up, the 

following set of citations in a group: That is, 371345, 

371346, 371347, 371349, and 371350. In each of these citations, the inspector charged for particular designated 

machines that the drives, pulleys, or other turning devices 

were not guarded. I will just read the first one as an 

example. Quote, "The V-belt drives on the vibrating shaker 

screen in the pit were not guarded to prevent getting caught 

in the pinch points or contacting the moving pulleys 11' 

[Petitioner's Exh. P-4]. In each of these cases, the charge 

is that it was a violation of mandatory standard 55.14-1. 

That is of 30 CFR. That standard reads as follows: Quote, 

"Gears, sprockets; chains; drive, head, tail, and take up 

pulleys; fly wheels; couplings; shafts; saw blades; fan 

inlets; and similar exposed moving machine parts which may 

be contacted by persons and which may cause injury to 

persons shall be guarded." 

The other citations are similiarly worded, except that 

they refer to different drives or pulleys. 

In each of these cita~ions, there is no question and 

no dispute that the proper guards were not in place. There 

were circumstances which were offered as a defense in 

several of the instances, which I will take up. But so far 

as the evidence is concerned, it do~s show that the guards 

as required were not in place. 

In each instance, the inspector testified that he did 

not see any evidence of ~he guards and he did not know nor 

did he see any evidence as to how long they had been off. 

In some instances, it is clear that there were no guards at 

that time available for some of the devices. 

2008 
In looking at my notes as to the testimony, it appears 

to me that it is only in the case of 371345 that there was 

a general defense offered other than the defense of testing. 

And in that case, Mr. Gibbs testified that there was .a bad 

bearing, and he wasn't sure which side the bearing was on. 

He had the guard off, according to his testimony, in order 

to make the necessary tests to determine which bearing was 

faulty. 

His testimony was that the V-belt drive of the vibrating shaker had been run with the guard off for a day or 

more. He further claimed that this was necessary to make 

the tests or measurements required. 

In this instance I will accept Mr. Gibbs' representations and conclude th~t there was a specific testing situation in which the guard was removed for a purpose while 

testing. So,accordingly,as to 371345, I hereby vacate that 

citation and dismiss the petition as to that citation. 

So far as the other citations are concerned [i.e., 

371346-371347 and 371349-371350], I believe that,-in fact, 

a violation has been proved. And I so find. In each case 

the inspector testified that the operator knew or should 

have known because the lack of guards was easily visible. 

And I so find. He further testified to the fact that in 

each case it was a hazard. And I find, therefore, that the 

violations were serious. 

In each case, the evidence is that the violatiQns were 

abated in good faith within the time set by the inspector, 

and I so find. I would supplement my finding on negligence 

somewhat by stating as I did before, that for each of these 

I find less than ordinary negligence because of the circumstances mentioned heretofore. 

For each of the four violations which were proved, I 

will assess a penalty of $40. 

The remaining citation in this group is 371351. In 

this instance, the inspector charged, quote, "The work 

platform at the balance wheel of the shaker screen in the 

pit was not provided with handrails." He charged a violation of 55.11-27. This standard provides as follows: 

Quote, "Scaffolds and working platforms shall be of substantial construction and provided with handrails and 

maintained in good condition." That is the end of the 

quotation on that part of the standard which is relevant 

to the citation. 

2009 
The evidence is clear and it is admitted that there 

were no handrails. In this instance, a work platform was 

prepared of approximately two by four feet for the purpose 

of installing a bearing on the shaker screen. This platform 

was ten or more feet off the ground. Mr. Gibbs testified 

that he considered it a hazard to have a handrail on that 

platform in that if the balance wheel popped off it might 

crush him. He also testified that though safety belts were 

provided, he did not wear [one]. 

Mr. Drussel testified that in his view if safety procedures had been employed in the removal of that bearing, 

that the hazard referred to should not have occurred; that 

in any event, without the rail, there was a hazard either way, 

either being crushed or being thrown over and subjected to 

that long fall. 

In this instance, I am going to accept Mr. Drussel's 

testimony that proper procedures would have eliminated, or 

at least mitigated, the particular hazard of the counterweight, I believe it was called. 

In the case of this standard, it's relatively a rigid 

requirement that if you have a work platform, it must have 

a railing. And it does not actually allow for exceptions. 

I think in some circumstances it may be that there would 

be conditions where it should not be required. But I 

don't believe that we're faced with that here. 

So I find, therefore, that there was a violation of 

20 CFR 55.11-27. 

The findings on the criteria are as follows: It was 

easily visible from the ground, and therefore there was some 

negligence because it should have been observed. I find 

less than ordinary negligence, for the reasons previously 

indicated. It was a clear hazard. Working on a platform of 

that nature without a belt could have resulted in serious 

injury to an employee falling therefrom. So as far as abatement is concerned, it was abated in good faith within the 

time set by the inspector. And I so find. 

I hereby assess a penalty for this violation of $40. 

That completes the decision on the series of citation relating to the prescreening plant. 

This decision as to Citation Nos. 371343-371347 and 371349-371351 is 

hereby affirmed. 

2010 
Citation No. 371348 

This citation was decided orally from the bench. The decision contained in the transcript pages 212-214 follows: 

THE COURT: This is my decision in citation 371348: In 

this citation the inspector charges as follows, quote, "There 

was no berm or guard rail along the outside edge of the haul 

road from the loading area under the mill in the pit." The 

charge is 30 CFR 55.9-22. This reads as follows: "Berms or 

guards shall be provided in the outer bank of elevated roadways." On the fact of violation, first, it is clear, there 

is no dispute this was an elevated roadway. The standard is 

mandatory. It does require a berm. There has been testimony 

that such berms too high could be unsafe. It would not be 

appropriate for me, I believe, to decide that issue here. 

The issue was decided when [the Secretary] issued the regulation. There are provisions for variances or waivers or 

modifications of the applications of these rules. And if it 

does not apply or suit in a particular situation, that would 

be the appropriate procedure. Otherwise, the regulation or 

the standard is applicable. 

Now then, there has been the argument -- the argument 

was made, rather, that there were berms there, they just 

weren't of the height of what the inspector required. I 

think the evidence shows that there were berms in some areas, 

or ridges up to possibly ten inches. The inspector testified 

that that was not sufficient. It seems to me that a fair 

reading of that standard would require adequate berms. There 

might be some dispute as to what the height actually should 

be to be adequate. But I think we could safely say that 

ten inches is so small that it perhaps would be a little more 

than no berm at all where you're dealing with larger vehicles. 

So accordingly, I would hold that there was no berm in 

those areas as required by the standard. I do find a violation, therefore, of 30 CFR 55.9-22 as charged. 

I find that the operator was ordinarily negligent, 

because it knew or should have known that an adequate berm 

was needed. Insofar as the hazard is concerned, or the 

seriousness, I accept the inspector's testimony that a truck 

could go over the edge and cause death or serious injury to 

an employee without the berm. Accordingly, I find that this 

violati9n was serious. 

I find that, finally, it was abated with good faith 

within the time set by the inspector. 

2011 
On this violation I assess the penalty sought by the 

MSHA, which in this instance is $44. I assess that amount. 

That completes the decision. 

This decision is hereby affirmed. 

Citation No. 371360 

The decision on this citation was reserved because of the issue raised 

as to the jurisdiction of the Secretary over this particular facility. 

The inspector charged as follows: "The operator of the dragline at 

the ponds was not protected from contacting the moving cable drums and 

brake assembly or getting caught by the cable as it wraps on the drums 

while he operated the machine from the operator's seat." This condition 

was alleged to be a violation of 30 CFR 55.14-1 which is quoted under a 

previous citation above. It requires, in brief, that exposed moving 

machine parts which may cause injury be guarded. 

The machine against which the citation was issued is a dragline 

operated at ponds of water at the main processing plant. It is used to 

drag the silt out of settling ponds (Tr. 214-217). The machine is located 

about 9 miles from the pit (Tr. 225). Respondent argued on the record 

that the operation of taking silt out of the ponds at the mill could not 

be construed as "mining." Subsequently, on November 15, 1979, Respondent 

filed a motion withdrawing its contention of a lack of jurisdiction. 

I hereby find that the milling facility is subject to the Act and the 

regulations based on the legislative history, the plain language of the 

Act, and applicable precedents. For & full discussion of this issue, see 

my decision in Ready Mix Sand & Gravel Company, Inc., Docket No. 

WEST 79-66-M , issued December 5, 1979. 

There appears to be no dispute that the machine drums and brake 

assembly were not fully guarded. The inspector testified that the machine 

may have had a small screen over some of the parts, but was not guarded as 

to the main moving parts (Tr. 215). Robert Hurst, employees' personnel and 

safety supervisor, testified that while he was not there. on the day of the 

citation that the drums have three-quarter guards which were factory 

installed (Tr. 221). He admitted parts of the drums were still exposed 

(Tr. 222). 

I find that moving machine parts were not guarded in that they were 

not adequately or completely covered ~nd that this created a hazard to 

employees working in the area. I find therefore a violation of 30 CFR 

55.14-1 as charged. 

My findings on the criteria are as follows: This was a serious violation because an operator of the machine could get caught in the moving 

parts resulting in the probable loss of an arm or hand (Tr. 216). The 

2012 
operator was responsible for some negligence. There is evidence to the 

effect that the.lack of guards might have been difficult to observe from 

ground level. However, this condition would have been readily observable 

on a regular inspection of the machine. Because the machine was an older 

model which, according to the testimony, did not have full guards installed 

at the factory, the degree of negligence is somewhat lessened. 

In all the circumstances, I assess a penalty of $45 for this violation. 

DOCKET NO. DENV 79-454-PM 

Citation Nos. 371371-371374 

Under this docket Citation No. 371373, at Petitioner's request, was 

dismissed. As to the remaining citations the parties negotiated a settlement which was approved. Citation No. 371371 assessed originally at $66 

was settled for $40; 371372 previously assessed at $72, was settled for 

$45; and 371374 assessed by the Assessment Office at $52 was settled for 

$40. The decision from the bench approving the settlement of these citations follows: 

THE COURT: I would note in connection with that stipulation that the parties have entered into a settlement for 

these citations. The first two, namely 371371 and 371372, 

both involve the standard 30 CFR 55.14-1. This is the same 

mandatory standard that was dealt with in other dockets. 

There it was my view that the penalty of, I believe it was, 

$40, was appropriate in all of the circumstances. There may 

be some different circumstances here, but looking at the 

total picture, I conclude that the settlement of respectively 

$40 and $45 is appropriate and I accept that. 

So far as 371374, the reduction has been from $52 to $40. 

This d,aes not appear to me to be an excessive reduction, and 

for the reasons stated by Counsel, I accept that as appropriate in the circumstances. Accordingly, that disposes of 

the three remaining citations. 

This decision is hereby affirmed. 

A summary of the dispositions in the captioned proceedings follows: 

Citation No. 

371370 

371375 

DOCKET NO. WEST 79-173-M 

2013 

Assessment or 

Other Disposition 

Vacated 

Vacated 
Citation No. 

371343 

371344 

371345 

371346 

371347 

371348 

371349 

371350 

371351 

371359 

371360 

Citation No. 

371371 

371372 

371373 

371374 

DOCKET NO. WEST 79-174-M 

Assessment or 

Other Disposition 

$ 25.00 

Vacated 

Vacated 

$ 40.00 

$ 40.00 

$ 44.00 

$ 40.00 

$ 40.00 

$ 40.00 

Vacated 

$ 45.00 

DOCKET NO. 79-454-PM 

Assessment or 

Other Disposition 

$ 40.00 

$ 45.00 

Vacated 

$ 40.00 

Total assessment for all dockets: $439.00 

ORDER 

It is ORDERED that Respondent pay total penalties of $439.00 within 

30 days of the date of this decision. 

~~/?~ Franklin P. Michels 

Administrative Law Judge 

Distribution: 

Judith G. Vogel, Esq., Office of the Solicitor, U.S. Department of 

Labor, 450 Golden Gate Ave., Rm, 10404, San Francisco, CA 94102 

(Certified Mail) 

Louis F. Fetterly, Esq., Suite 718, Pershing Square Bldg., 

448 S. Hill St., Los Angeles, CA 90012 (Certified Mail) 

2014 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

, .·, ·-' ' . . ~ 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ORACLE RIDGE MINING PARTNERS, 

Respondent 

Docket No. WEST 79-248-M 

A/O No. 02-00840-05003 

Oracle Ridge Project 

DECISION 

Appearances: 

Before: 

Marshall P. Salzman, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner MSHA; 

Stephen w. Pogson, Esq., Evans, Kitchel & Jenckes, P.C., 

Phoenix, Arizona, for Respondent. 

Judge Merlin 

This case is a petition for the assessment of a civil penalty filed 

under section 110 of the Act by the Secretary of Labor, Petitioner, against 

Oracle Ridge Mining Partners, Respondent. 

This case was duly noticed for hearing and heard as scheduled on 

October 22, 1979. 

At the hearing, the parties agreed to the following stipulations: 

One, the operator is the owner and operator of the subject mine; two, the operator and the mine are subject to the 

Federal Mine Safety and Health Act of 1977; three, I have 

jurisdiction of this case; four, the inspector who issued 

the subject citation was a duly authorized representative of 

the Secretary; five, a true and correct copy of the subject 

citation was properly served upon the operator; six, a copy 

of the subject citation is authentic and may be admitted into 

evidence for purposes of establishing its issuance, but not 

for truthfulness or relevancy; seven, the operator is small 

in size; eight, the operator's previous history is in the 

range of low to moderate; nine, the imposition of any penalty will not affect the operator's ability to continue in 

business; ten, the alleged violation was abated in good faith 

(Tr. 4). 

2015 
At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 1-58). At the conclusion of 

the taking of evidence, the parties waived the filing of written briefs, 

proposed findings of fact, and conclusions of law. Instead, they agreed to 

make oral argument and have a decision rendered from the bench (Tr. 58). A 

decision was rendered from the bench setting forth findings, conclusions, 

and determinations with respect to the alleged violation (Tr. 62-65). 

Bench Decision 

The bench decision is as follows: 

This case is a petition for the assessment of a civil 

penalty filed under Section 110 of the Act. 

The alleged violation is of 30 CFR 57.6-20 (c) which 

directs that magazines shall be constructed substantially of 

noncombustible material or covered with fire resistant 

material. In addition, 30 CFR 57.2 states that "substantial 

construction" means construction of such strength, material, 

and workmanship that the object will withstand all reasonable 

shock, wear, and usage to which it will be subjected. 

The subject citation recites that an explosive magazine 

and a detonator magazine were not constructed of substantial 

material, but were constructed of aluminum sheeting. 

The operator's first contention raised at the hearing is 

that the definition of "substantial construction" in section 

57.2 does not apply to section 57.6-20(c). In the operator's 

opinion, it is sufficient under section 57.6-20(c) if the 

magazines have been substantially constructed of noncombustible material or covered with fire resistant material without 

regard to whether they can withstand reasonable shock, wear, 

or usage. From the Bench, during the course of the hearing, 

I rejected the operator's position. The definition in 57.2 

appears at the outset of part 57 and plainly all the definitions are intended to apply to the entire part. 

The fact that 57.6-20(c) speaks in terms of "constructed 

substantially" instead of "substantially constructed" makes 

no difference. To adopt such an approach would make form 

master over substance. Even more importantly, under such an 

approach, a magazine would be acceptable if it were wholly 

flimsy so long as its inadequate materials were made of noncombustible materials or covered with fire resistant materials. I cannot read the regulations in a way that would 

make them meaningless and nonsensical. Accordingly, I 

conclude section 57.6-20(c) must be applied together with the 

definition in section 57.2. 

2016 
According to both the inspector and one of the operator's witnesses, the two magazines were constructed of aluminum sheeting l/16th of an inch thick. The detonator magazine 

also was lined with 3/4 inch plywood. The magazines were 

located in cutouts in the side of the mountain. The inspector 

believed that a rock could fall on the top of the magazines, 

pierce the aluminum, and set off the detonators. The operator's witnesses believed such an occurrence was very unlikely 

because of the way the magazines were set back into the hill. 

The sincerity of the operator's witnesses was apparent and I 

am cognizant of it. However, after due consideration, I 

believe the inspector's testimony must be accepted. I further 

believe that the circumstances presented fall within the terms 

of "reasonable shock, wear, and usage" to which the magazines 

would be subjected. Accordingly, I find a violation existed. 

I find the violation was serious. If a rock dislodged, 

a detonator could be ~et off. I further find that the operator was negligent in allowing this situation to exist. 

In accordance with the stipulations of the parties, 

which I accepted at the outset of the hearing, I find that 

the operator was small in size, that its prior history was 

in the low to moderate range, that its ability to continue 

in business will not be affected by the imposition of any 

penalty and that the violation was abated in good faith. 

Based upon the foregoing, and particularly in light of 

the operator's small size, a penalty of $122.00 is assessed. 

ORDER 

The foregoing bench decision is hereby, AFFIRMED. 

The operator is ORDERED to pay $122 within 30 days from the date of 

this decision. 

Assistant Chief Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department 

of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, CA 

94102 (Certified Mail) 

Stephen w. Pogson, Esq., Evans, Kitchel & Jenckes, P.C., 

363 North First Avenue, Phoenix, AZ 85003 (Certified Mail) 

Administrator, Metal and Non-metal Mine Safety & Health, 

U.S. Department of Labor 

Standard Distribution 

2017 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520S LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 79-67-M 

A/O No. 02-00156-05004 

v. 

New Cornelia Branch 

PHELPS DODGE CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Marshall P. Salzman, Esq., Office of the Solicitor, 

Department of Labor, San Francisco, California, for 

Petitioner MSHA; 

Stephen w. Pogson, Esq., Evans, Kitchel & Jenckes, P.C., 

Phoenix, Arizona, for Respondent. 

Judge Merlin 

This case is a petition for the assessment of a civil penalty filed 

under section 110 of the Act by the Secretary of Labor, Petitioner, against 

the Phelps Dodge Corporation, Respondent. 

This case was duly noticed for hearing and heard as scheduled on 

October 22, 1979. 

At the hearing, the parties agreed to the following stipulations: 

One, the operator is the owner and operator of the subject mine; two, the operator and the mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 

1977; three, I have jurisdiction of this case; four, the 

inspector who issued the subject citation was a duly authorized representative of the Secretary; five, a true and correct 

copy of the subject citation was properly served upon the 

operator; six, copies of the subject citation may be admitted 

into evidence for purposes of establishing issuance, but not 

for the purpose of establishing truthfulness or relevancy; 

seven, the operator has a small history of violations and 

there were only six paid violations in 1978; eight, the operator is large in size; nine, imposition of a penalty in these 

proceedings will not affect the operator's ability to continue 

in business; ten, assuming the violation existed, said violation was abated in good faith. 

2018 
At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 1-62). At the conclusion of 

the taking of evidence, the parties waived the filing of written briefs, 

proposed findings of fact, and conclusions of law. Instead, they agreed to 

make oral argument and have a decision rendered from the bench (Tr. 61-62). 

A decision was rendered from the bench setting forth findings, conclusions, 

and determinations with respect to the alleged violation (Tr. 66-70). 

Bench Decision 

The bench decision is as follows: 

This case is a petition for the assessment of a civil 

penalty under section 110 of the Act. The alleged violation 

is of 30 CFR 55.9-2. This section provides that equipment 

defects affecting safety shall be corrected before the equipment is used. 

The MSHA inspector who issued the subject citation testified that all the lug nuts on the No. 149 truck were loose. 

Another inspector who accompanied the issuing inspector testified to the same effect. The inspectors testified that 

they touched and felt all the lug nuts and that all were 

loose. Both inspectors further testified that the truck was 

in the service area where it was being refueled. According 

to the inspectors, the serviceman fired the truck up so that 

the truck would have gone back into service after being 

refueled with the loose lug nuts present and uncorrected, had 

a citation not been issued. I find the testimony of the 

inspectors especially detailed, clear and consistent on all 

the circumstances surrounding the subject condition. 

The operator's witnesses testified that less than all 

of the lug nuts were loose, although it is not exactly clear 

from their testimony just how many they believed were loose. 

I recognize the testimony of the operator's mechanical 

foreman, that if all the lug nuts were loose the tire would 

be flat or partially flat, but the record has no showing how 

soon this would occur. Moreover, I accept the testimony of 

the issuing inspector that when the truck drove into the 

subject area, the inspector himself was on the opposite side 

from the affected wheel and that therefore he would not have 

seen the wheel and the tire at that time. 

In any event, I find more persuasive and accept as completely credible the testimony of the inspectors that all 

the lug nuts were loose. I also accept the testimony of the 

inspectors that because the lug nuts were loose, the wheel 

could come off and proper braking might not occur. This, 

obviously, was not safe. This condition, together with the 

2019 
fact that after refueling the truck the serviceman fired it 

up so that it would have gone back into service, constitutes 

a violation of 30 CFR 55.9-2. 

I further conclude that the No. 149 vehicle was not out 

of service. Even the operator's witnesses testified that it 

was being refueled in the event that it should be used again. 

The former Board of Mine Operations Appeals of the Department 

of Interior held that where equipment was under repair and 

had not been used and was not going to be used until it met 

and satisfied all the mandatory standards, no violation 

occurred. Plateau Mining Company, 2 IBMA 303 (1973) and 

Zeigler Coal Company, 3 IBMA 366 (1974). Under the provisions of the 1977 Act, the decisions of the former Board 

remain binding upon the judges until specifically overruled 

by the Commission. _However, it is my opinion that the 

Board's prior rulings have no applicability here. I have not 

overlooked the argument of operator's counsel that there were 

plenty of trucks so that the No. 149 would not have to be 

used. The difficulty I have with this argument is that the 

evidence does not show it. If the truck did not have to be 

used and if in fact it had been completely removed from 

service, there really was no reason to refuel it. 

The testimony regarding the hazards already set forth 

also show that this was a serious violation. Even the 

operator's pit mechanical foreman, who himself found two 

loose lug nuts, found them together which he said was more 

serious than if they had been spaced apart. In any event, 

as I have found, all loose lug nuts existed which presented 

a very serious violation. 

I further determine that the operator was negligent in 

allowing this condition to occur. The operator is responsible for the actions of its serviceman in refueling the 

truck and in preparing to allow it to return to service. 

Even more importantly, the maintenance procedures followed at 

the time were deficient. The fact that after this citation 

was issued the serviceman in this area was given a wrench to 

tighten loose lug nuts instead of merely reporting them and 

waiting for repair equipment to arrive from elsewhere shows 

that the procedure operative when this citation was issued 

was defective and dangerous. The operator was negligent. 

As set forth in my opening statement, I accept the 

stipulations of the parties to the effect that the operator 

is large in size, that the imposition of a penalty here will 

not affect the operator's ability to continue in business, 

that the violation was abated in good faith, and that the 

operator has a small history of prior violations. 

2020 
In determining the amount of penalty to assess, I am 

especially mindful of the operator's small history of prior 

violations to date, because this is, in my opinion, a serious 

violation. 

Accordingly, a penalty of $125.00 is assessed. 

ORDER 

The foregoing bench decision is hereby, AFFIRMED. 

The operator is ORDERED to pay $125 within 30 days from the date of 

this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department 

of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, CA 

94102 (Certified Mail) 

Stephen W. Pogson, Esq., Evans, Kitchel & Jenckes, P.C., 

363 North First Avenue, Phoenix, AZ 85003 (Certified Mail) 

Administrator, Metal and Non-metal Mine Safety & Health, 

U.S. Department of Labor 

Standard Distribution 

2021 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

LESLIE COAL MINING COMPANY~. 

v. 

SECRETARY _OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION Q1SHA), 

Contestant 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Pe ti.ti.oner 

LESLIE COAL MINING COMPANY'· 

Respondent 

Contest of Citation 

Docket No. PIKE 78-400 

Citation No. 069563 

May 30, 1978 

Preparation Plant 

Civil Penalty Proceeding 

· Docket Nos. 

PIKE 79-90-P 

PIKE 79-91-P 

Assessment Control Nos. 

15-09724-03001 

15-09724-03002 

Preparation Plant 

. 'DECISION 

Appearances: John M. Stephens, Esq., Stephens, Combs & Page, Pikeville, 

Kentucky, for Contestant; 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

Department of Labor, for Respondent Secretary of Labor; 

Mary Lu Jordan, Attorney, Washington, D.C., for 

Respondent United Mine Workers of America. 

Before Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued June 14, 1979, as amended July 19, 

1979, and August 14, 1979, a hearing in the above-entitled consolidated proceeding was held on October 3 and 4, 1979, in Pikeville, Kentucky, under 

Section 105(d) of the Federal Mine Safety and Health Act of 1977. 

The consolidated proceeding involves a notice of contest of Citation 

No. 069563 filed on June 30, 1978, by counsel for Leslie Coal Mining Company 

and two Petitions for Assessment of Civil Penalty filed' by counsel for MSHA 

on January 31, 1979, in Docket Nos. PIKE 79-90-P and PIKE 79-91-P seeking 

as.sessment of civil penalties for 13 and 12 alleged violations, respectively, 

of the mandatory health and safety standards by Leslie Coal Mining Company. 

2022 
Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.) 

Among other alleged violations, the Petition filed in Docket No. 

PIKE 79~90-P seeks assessment of a penalty for the violation of Section 

103(£) of the Federal .Mine Safety and Health.Act of 1977 alleged in Citation 

No. 069563 which. is the subject of the contest of citation filed in Docket · 

No. PIKE 78-400. 

The first day of the hearing held on October 3, 1979, was devoted 

exclusively to the introduction of evidence.by counsel for contestant, MSHA, 

and UMWA with respect to the notice of contest filed in Docket No. PIKE 

78-400. The civil penalty issues had been consolidated with the issues 

raised by contestant in Docket No. PIKE 78-400. Therefore, the evidence 

presented in Docket No. PIKE 78-400 dealt with all civil penalty issues 

which are normally the subject of civil penalty proceedings. Innnediately 

after the conclusion of the hearing with respect to the issues raised on 

October 3, 1979, I rendered the following bench decision which is reproduced 

below exactly as it was transcribed by the reporter. (Tr. 257-269): 

Mr. Stephens explained in the off-the-record discussion 

the reason Exhibit 42 shows eighteen hundred tons coming out 

of the plant as opposed to sixteen hundred out of the Leslie 

Mine is that the preparation plant is processing some stockpiled coal. 

The result is, it is actually appearing to process 

more than it takes in; but as a matter of fact, the figures 

are right. 

Well, based on all that,- it has been my practice not 

to find that a company is a large company unless it is producing around four or five thousand tons a day, or I have a 

chain of factual record information showing that some holding 

company owns it; and I just do not think I have the information that I would like to have to find that Leslie Coal 

Mining Company is a large operator, and I am going to find it 

is a moderate-size company, which is what I was planning to do 

before I got confused or worried about perhaps not having 

considered all the evidence. I just do not see there is enough 

evidence here to permit me to find a large company. 

When I find a large company, I am thinking in terms of 

Consolidation and Itmann and Pittston and companies like that, 

and I do not think this is that size of an operation. I do not 

think Ms. Jordan's absence 1/ would keep me from making other 

findings about the civil penalty aspects· of the case in her 

absence, so while I am discussing the size of the company, 

I will go on and discuss the other criteria. 

The evidence shows that there is nothing to contradict 

or show, other than the fact that payment of penalties would 

have no ef feet on this. company·' s ability to continue in busin~irn-~r. •. ~t:epP,~n~ ha~ put no evidence to that effect--so I 

1/ It was necessary for Ms. Jordan to leave the hearing room for a 

few minutes to make an urgent phone call. 

2023 
Les.lie v. MSHA & UMWA, Docket Nos .• · PIKE 78-400~ ~ al. (Contd.) 

find that the company would not be· affected by· any penalties 

that might be assessed in this~ proceeding, that is,· its ability to continue in buS:ines.s. · 

These findings I am making at the.moment will be considered· applicable to the remaining civil penalty· is.s.ues. in 

thiS. proceeding' but thos.e are the only tw:o. that. can b.e -

made as. a general finding, because all the.· ·res.t would relate 

to specif i.c alleged· violations .• · I cannot get· into .. thos.e 

without making the· major finding wi.th: re8.pect. to· Citation 

No. 69563. . . 

That can be done now·, becaus.e Ms. Jordan has returned to 

the hearing room. I think. in order that this decision can 

later be put in a written form and mailed to all the parties--

which is required.by the Administrative Procedure Act--I should 

make some findings of fact. 

On May 26, 1978, Inspector Hugh V. Smith and Inspector 

Thacker went to the Leslie Mine and preparation plant to make 

an inspection--or continuing inspect~oμ--which had already 

begun. At the time they arrived, they went to the mine office 

and indicated that a representative of the mine[r]s was 

needed under Section 103(f) to accompany them. 

It turned out that Mr. Brian Stiltner had reported to the 

mine for the purpose of accompanying the inspectors. He had 

appeared because he assumed the inspection, which had previously 

been started, would be continued on May 26. 

About the time that Mr. Stiltner had started to accompany 

the two inspectors to the preparation plant which was going to 

be inspected on May 26, the mine foreman--a gentleman by the 

name of Gene Brennager--indicated that he could not perm.it 

Mr. Stiltner to accompany the two inspectors because Mr. Stiltner 

had been notified on May 25 that he had been suspended for 

having participated in an unauthorized work stoppage which 

occurred on May 24, 1978. 

The inspectors still needed someone to accompany them; 

and therefore, the management gathered together the men who 

were working at the preparation plant. And at that time it 

appears that only five men could be obtained for making a 

selection. 

So, the five men selected a gentleman by the name of 

Ray Hall to travel wi.th them •. And Mr. Hall did accompany 

them on their inspection which. las.ted until approximately 

noon on May 26., 1978. The inspectors had called their 

supervisor and had been' told that their procedure of getting 

Mr. Hall to accompany them in the absence of any other 

representative of the miners was an appropriate step to take. 

2024 
Les.lie v. MSHA & UMWA, Dock.et Noa. PIKE 78-400; et al. (Contd.) 

How.ever, when the inspectors: re.turned' to the Pikeville. 

offi.ce, they were advis.ed bY.-. thei;r. s11pervisor that they s.hould, 

upon their next return to the: inine., is.sue. a citati..on alleging 

a violation of Sec~ion 103(f} of the· 1977 Act~ · 

Therefore, when 'Mr. Smi.tQ returned· to· the.· mine or 

preparation plant-whicli. are contiguous.--on May 30, which 

was the next working day· after May 26, he is.sued Ci.tation 

69563 on that day," May· 30th:," 1978, Ci.ting the operator for 

a violation of section 103(f) of the Act and s·tating--and 

I quote--"Company offi.cials (mine foreman) refused to permit 

a legally elected representative authorized by the.miners to 

accompany an .authorized representative of the Secretary 

of Labor during the physical inspection of the preparation 

plant on May 26, 19 78." 

Citation 69563 gave the company until--it was written 

at nine fifteen a.m. and gave the company until nine thirty 

a.m. to terminate or correct the problem. And on the same 

form, in the section labeled "Action to Terminate", it was 

indicated a representative authorized by the miners was 

permitted to travel with a representative of the Secretary, 

and that was indicated at eleven a.m. 

Now, the testimony in general indicates that since 

this Citation 69563 was issued after the fact, that the time 

of issuance, the time given for compliance and time shown 

for abatement are just a matter of formality because the 

facts had already occurred and the company did nothing on 

May 30th that it had not done on May 26 to abate this alleged violation. 

And I think, as Mr. O'Donnell correctly pointed out in 

his sunnnation, the question of whether the company· attempted 

to achieve rapid compliance is a criterion which is hardly 

applicable in this instance. 

Therefore, if I assess. a penalty, no amount will be 

attributable under the penalty--under the criterion of good 

faith effort to achieve rapid compliance. 

We have had testimony by Mr. Stiltner, who is the gentleman most affected by the company's ruling. It appears 

that this suspension actually extended from four o'clock on 

May 25 to four p .m. on May 26 .. 

Since Mr. Stiltner normally worked at that ti.me-- from 

four p.m. until midnight--he was handed hi.s notice of suspen~ 

sion on May 25 and therefore di.d not work on his normal shift 

from four until midnight on May 25. 

2025 
Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.) 

And he considered· that he· had, therefore, complied with 

the. noti.ce of s.uspensi.on b:r not working his. normal shift. There 

was a union meeting that same.nightb.ecause of the work stoppage. that had occurre_d- on the.· previous day, and at that time 

the. three s.afety commi.tteemen~ who were Messrs. Elmer Mollot, 

Rogerliunt,·and Mr. Stiltner, agreed· that Mr. Stiltner should 

be the. one who.would appear at the-lnine. on May 26, on the day 

shift, to be· the representative of the miners to walk. around 

wi.th. thein. on their ins.pection. 

It appears on the.basis of a normal inspector's routine 

that when a representative of the lniners accompanies the 

inspectors on a given inspection period that the inspectors 

are actually engage.d·--in inspection for a period of about four 

hours; and therefore, the miner who is selected to represent 

the miners· on this walkaround chore does not receive, normally, 

pay for eight hours·. 

Therefore, if Mr. Stiltner had been permitted to accompany 

the inspectors on this occasion,'he would have received no 

more than four hours' pay, because the inspection ended at 

noon on May 26, and began about eight a.m. on May 26. 

I think that those are probably the most important 

matters to be included in the formal findings, and the rest 

of the decision will be based upon a discussion of arguments 

and the evidence. 

For that purpose, I undoubtedly will mix some facts in 

that have not been made a part of the formal findings. There 

is no doubt that the issue in this case--which, of course, 

is whether the company violated Section 103(f) of the Act 

when it forbade Mr. Stiltner from accompanying the inspectors--

is a close one; and for about the first half of this hearing, 

I thought the company was entitled to do what it did, but 

that was before I had heard all the evidence. 

And after hearing all the evidence, it appears to me 

that the union has the better argument here. Section 103(f), 

of course, states that a representative authorized by his 

miners--meaning the operator's miners--shall be given an 

opportunity to accompany the Secretary or his authorized 

representative during the physical inspection of any coal 

or other mine. 

It appears to me that .the. fact.the:C.ompany·had suspended 

Mr. Stiltner fer this twenty-four hour period does not give 

the company· the right to interfere with the fact 

that the representative-~that the miners had selected Mr. 

Stiltner as their representative on that specific day. 

2026 
Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400., et al. (Contd.) 

There is no indication in the. re.cord that I can find that 

show.s that Mr. Stiltner caiite to the mine on May 26. for the 

purpos.e of trying ~o get paid· for a peri.od which he W:.ould otherwis.e have. lost by his. not having worked, from four to twelve 

on May 25, 1978. · · 

I do not think any· case can be decided apart from the 

specific facts giving rise. to the controversy. Here, Mr. 

Stiltner and the other two gentlemen on the safety committee--Mr. Mollet and Mr. Hunt--were all working from four 

to twelve, and therefore by rotation method they were making 

themselves available on the day shift in order to accompany 

the inspectors· during an inspection, which lasted approximately three weeks. 

And they were also going ahead ari.d working their four 

to twelve shift at the same time; and they were doing so in 

order that the work at the mine would be as uninterrupted as 

possible by the fact that they were also acting as the representative of the miners to accompany the inspectors. 

Consequently, when mine management declined to let 

Mr. Stiltner go with the inspectors on May 26, there was 

not then available another man to take his place who was 

still in the same category of. a committeeman that was desirable, because these were the three men who were to be 

selected to accomp[a]ny the inspectors. 

Now, I recognize and I feel that management should have 

a right to discipline its miners, but in doing so I think 

that this type of situation could be avoided either by 

suspending--if they felt Mr. Stiltner was going to accompany the inspector during a period which was still within 

his suspension period--they could either have anticipated 

the situation by making it clear to Mr. Stiltner on May 25 

that one of the other committeemen should come in on the day 

shift for the purpose of accompanying the inspectors, or 

by changing the suspension period in order to permit Mr. 

Stiltner to make this inspection with the inspectors. 

In other words, I believe that the company cannot 

interfere with the person that the miners choose to accompany 

the inspectors. As long as he is still an employee and still 

a member of the safety committee and is still one of the 

people who is intended to accompany the inspectors, I believe 

the company must let him do so and must take that into consideration when they are suspending someone. 

I do not think i.t is s:omething they can work around. I 

suspect now that I have found a violation of Section 103(£) 

occurred, and I shall pass on to the civil penalty aspects 

and deal with the other criteria. 

2027 
Leslie v. MSHA & UMWA, Docket Nos. PIKE. 78-400; et al. (Contd.) 

I have already discus:sed three of them, and the only 

three that remain are the: que.s.tions. of negligence:l gravity 

and his.tory of previous. violations .• · 

As Mr. 0 'Donnell has_ indi.cate_d~ Exhibi.t 1 does. not sho"W 

that the company has. previous;ly violated· Se.Ction 10.3(£) of. the 

Act; cons.equently, the.' penalty should not be increased under 

that criterion. 

Mr. O'Donnell sugges;ted the violation is a result of 

gross negligence, and I do not think I can go along with 

him on that; because I simply believe that when Mr. Brennager 

indicated that h.e did not believe that Mr. Stiltner could go 

with the inspectors on May 26, he was simply enforcing a 

suspension which he sincerely felt prevented Mr. Stiltner 

from going on this inspection. 

I do not· think in doing that that he had any intention 

of doing other than something he thought he was compelled 

to do--which was, since Mr. Stiltner was under suspension, 

that he could not accompany these inspectors and that somebody else could be obtained to do it just as well. 

So, I cannot see that the company was more than 

[g]uilty of ordinary negligence in not having thought 

this through and having given it some consideration at the 

time that it made the suspension a punishment for Mr. Stiltner's 

alleged participation in this unauthorized work stoppage. 

I do not think it is material to this case, the fact 

that there was a Step 3 proceeding at which Mr. Stiltner 

apparently was considered to have enough matters in his 

favor to justify his being paid. Because at the time that 

Mr. Brennager made this decision, no determination had been 

made as to the merits of the suspension period. 

I just do not think the fact that later on Mr. Stiltner 

was paid is anything that has to be considered. And then we 

come to the gravity of the violation. Here again, there has 

been a lot of testimony about whether the use of a person 

other than the authorized representative really exposes the 

miners, as a general category in a mine, to any greater hazards 

than if the representative is someone chosen on the spur of 

the moment, as was.done in this case on May 26. 

The. evidence does show that Mr. Stiltner had not received 

any training that other miners had not received at that period 

of time when Mr. Stiltner began working for the company. And 

the inspectors indi.cated that they were not aware that any of 

the people who did accompany them during this inspection pointed 

out any hazards that they themselves .. would not have seen in any 

event. 

2028 
Leslie v. MSHA v. UMWA, Docket Nos. PIKE. 78-400, e.t al. (Contd.) 

But there. does· se.em. to be. one aspe.ct of having the. 

inspe.ctors.--or rather having a s.pe.cifi.c pe.rson or pe.rS.ons. 

de.signated to accomp[a]ny ·the. inspectors.; he.cause. i.t appe.ars 

to me. that the. inspectors feel' that if they get the same 

pe.rson each. -time.~r a l:i.Jni.te.d nwnbe.r· of parsons--to accompany them., that a proces.s · of training ca.Ii. be ins.tilled· 

in th.e.Se people wh.a· go around with. the inspectors, and the 

re.sUlt i.s there is gradufa]lly built up a certain amount 

of expertise in these representatives wh.o accompany them. 

The result is they can better field complaints from 

the miners in general and can coordinate the various inspections by adding knowledge to what has happened in the 

past. And this, I think, is helpful for both the company 

and the inspectors. 

Cons.equ~tly,from that standpoint, I think-that there 

may oe·some moderate gravity in preventing the usua[l]ly 

authorized representative to go around and allowing someone to go who is ahosen in a rather. :rapi.d.:w:ay. and without 

the full opportunity for the.' miners to consider the merits 

of his appointment or election as their representative. 

But despite all that, I still do not think there is 

enough gravity to the kind of thing that happened on this 

day to justify a large penalty. 

Consequently, I shall assess a penalty of fifty dollars. 

Now, it is my understanding, of course, that I will put this 

[decision] in the form of a writing, and it will be issued 

along with the other matters we are going to take up 

tomorrow when we go forward on the other civil penalty issues. 

Settlement 

On October 4, 1979, the second day of the hearing, counsel for both 

MSHA and Leslie Coal Mining Company stated that they had engaged in extensive negotiations during the evening recess and prior to the convening of 

the hearing and had been able to settle all the remaining issues in the 

proceeding. Counsel for both MSHA and Leslie gave their reasons for settlement as hereinafter described (Tr. 352-353). 

Docket No. PIKE 79.,;.90-P 

Citation No. 67891 dated May 24, 1978, alleged that respondent had 

violated Section 77.502 because the doors and covers had been removed from 

the control panel unit serving the elevator. The Assessment Office proposed 

a penalty of $122 for this alleged violation and respondent has agreed to 

pay a penalty of $61. · MSHA's counsel stated that he had agreed to accept 

the. reduced amount be.cause the doors and covers for the control panel had 

been removed so that work.. could be.~ done on the·-e.1e..vator. Counsel' for 

2029 
Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.) 

respondent stated that the control room is accessible only by a system of 

steps and that the.re is a sign over the. door into the control room bearing 

the.w.ords "Authorized Personnel Only" and that the room is kept locked 

an.d can be entered only whe:i:i. work. has to. be performed in the control room. 

Counsel for MSHA also obs.erve.d. that Section 77 .502 refers to "a potentially 

dangerous. condition" and he. s.tated that a ·question existed as. to whether the 

mine.rs. had be.en exposed to danger whe:ii the. potential danger· is located behind 

locked doors (Tr. 354~356; EXh. A). 

Citati.on No. 67893 dated May 24, 1978, alleged that respondent had 

violated Section 77.400 by failing to guard the wire ropes and pulley that 

are used to hoist the plant elevator. The Assessment Office proposed a 

penalty of $56 and respondent has agreed to pay the full amount of the proposed penalty. Respondent's counsel stated that he had agreed to pay the 

full proposed penalty with considerable reluctance because the ropes and 

pulley were located in the locked control room discussed above and therefore 

he. did not feel that the ropes and pulley were freely accessible (Tr. 357-

358). 

Citation No. 67894 dated May 24, 1978, alleged that respondent had 

violated Section 77 .1109-3Cd) by failing to place a fire extinguisher at 

the permanent electrical installation located in the elevator room. MSHA's 

counsel stated that MSHA would be willing for Citation No. 67894 to be 

vacated because it had erroneously alleged a violation of Section 77 .1109-3 (d) 

instead of the correct secti.on whi.ch is" Section 77 .1109(d). Additionally, 

.counsel for respondent stated that a fire extinguisher had been provided 

just outside the door of the control room and that respondent considered that 

to be a better location for the extinguisher than inside the control room, 

although a fire extinguisher had been provided inside the control room 

after the citation was issued (Tr. 359-360; Exh. B). 

Citation No. 67896 dated May 24, 1978, alleged that respondent had violated Section 77 .204 because an opening 10 inches by 40 inches existed 

on the sixth level near the fire hose outlet at a location where the opening 

might allow men or material to fall to the lower levels where people were 

working. The Assessment Office proposed a penalty of $48 and respondent has 

agreed to pay a penalty of $40. Counsel for the parties stated that if evidence had been presented with respect to this alleged violation, respondent's 

witness would testify that the hole cited by the inspector had been cut into 

the wall, along with another opening measuring 12 by 20 feet, for the purpose 

of building an addition to the plant. Counsel for respondent stated that 

nothing was done to the large opening and the small opening was corrected 

simply by stringing a guard rope across it. Counsel for MSHA stated that 

the inspector disagrees with respondent's prospective witness as to what was 

done to abate the alleged violation (Tr. 361-363) • 

Citation No. 67897 dated May 24, 1978, alleged that respondent had violated Section 77 .1109 (b) because sufficient fire hose to project water to 

any point in. the. plant had not been· provided at each. floor. The Assessment 

Office proposed a penalty of $90 and respondent has agreed to pay a penalty 

of $50. MSHA' s counsel stated that the reduced penalty was justified because respondent's prospective Witness would testify that there was a hose 

available which.would extend to any point in the plant, but that the hose 

2030 
Leslie v. MSHA & UMWA, Dock.et Nos. PIKE 78-400> et al. (Contd.) 

had been extended for the.. purpos.e of w.aah.ing the. floor and w.as still lying 

on the. floor when the. inspector observed it.· The. inspector w.ould not agree 

entirely with_ respondent's claim regarding the.. fire hose, but the. inspector 

did agree that a hose. of some type was present (Tr. 364}. 

Citation No. 67898 dated May 24, 1978, alleged· that respondent had violated Section 77 .1605(a) because the left glass. was cracked· in a three-part 

windshield on a front-end loader. The Assessment Office proposed a penalty 

of $106 for .. flif.s alleged violation and respondent has agreed to pay the 

full amount. Couns-el for respondent stated that he had agreed to the full 

amount solely to avoid litigation because he argued that the crack was on a 

part of the glass which had no windshield wiper, whereas the inspector's 

manual provides that a citation is not to be issued unless the crack impairs 

the operator's vision or would damage the windshield wiper blades (Tr. 366-

367). 

Citation No. 67900 dated May 24, 1978, alleged that respondent had violated Section 77.205(a) by failing to provide a ladder for a safe means of 

access to the right side of a front-end loader. The Assessment Office proposed a penalty of $66 for this alleged violation and respondent has agreed 

to pay the full amount. MSHA believes that it would be possible for a 

person to step out of the loader on the side having no ladder and be injured by the fact that no ladder existed on the right side. Respondent 

argued that the standard does not require ladders on both. ,sides of the loader 

and that since a ladder existed on one· side, the loader was in compliance 

with Section 77.205(a) because a safe means of access had been provided 

(Tr. 368-369). 

Citation No. 69563 dated May 30, 1918, alleged that respondent had 

violated Section 103(f) of the Act. A penalty of $50 was assessed by me 

in the bench decision appearing in the first part of this decision (Tr. 369). 

Citation No. 69565 dated May 30, 1978, alleged that respondent had 

violated Section 77.1710(i) because a usable seat belt had not been provided 

for a back hoe. The Assessment Office proposed a penalty of $170 and 

respondent has agreed to pay $70. MSHA's counsel explained that he was 

willing to accept a reduced penalty in this instance because the back hoe 

was owned and operated by a construction company. In such ci:rcumstances, 

MSHA' s counsel stated that the Assessment Office had assigned an undue 

portion of the assessment to the operator's negligence. In this instance, 

MSHA's counsel believed that respondent's only negligence was in failing to 

check the independent contractor's hoe. MSHA's counsel also noted that the 

Assessment Office had apparently increased the penalty because a withdrawal 

order was issued, but the delay in abating the citation was justified when 

it is considered that respondent and the independent contractor were trying 

to decide whi.ch of them was obligated to correct the alleged violation. 

Also some of the delay arose because the contractor at fi.rst assumed that 

taking the back hoe out of service would be a sufficient act to abate the 

citation (Tr. 370-372). 

Ci_tation No. 69566 dated May 30, 1978, alleged that respondent had 

vi.olated Section 77. 410 by failing to provide a suitable back-up alarm for 

a back hoe. The Assessment Office proposed a penalty of $90 for this al2031 
Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.) 

leged violation and respondent has. agreed to pay a penalty of $70. The 

reason for the reduced. penalty in this instance is the same as. described 

above.,· namely,. that an in.dependent contractor owned and operated the back 

hoe (Tr. 373). 

Ci.tati.on No. 69:567 dated May 30, 1978, allege.d· that respondent had 

vi.olated Secti.on 77 .1109{C) (1) by failing to provi.de a portable fire extinguisher for a back. h.oa. · The. Ass.eS.s.ment Offi.ce proposed· a penalty of 

$150 and respondent.has _agreed.to·pay a penalty of $70 for the same reasons 

gi.ven allove w::i:th. respect to th.e 0th.er two alleged vi.olations pertaining to 

the.· Eack. fLOe (Tr. 374-375). · 

Ci.tation No. 69569 dated May 30, 1978, alleged that respondent had 

violated Section 77.1109(d) by failing to provide a fire extinguisher at a 

perm.anent electrical installation located on the fifth level of the plant. 

The Assessment Office proposed a penalty of $52 for this alleged violation 

and respondent has agreed to pay the full amount. Counsel for respondent 

stated that a fire extinguisher had been provided just outside the door of 

the welding room and that it was close enough to come within the guidelines 

in the MSHA inspector's manual which provides that a fire extinguisher may 

be considered in compliance if it is within 50 feet of the electrical 

installation (Tr. 376-377). 

Citation No. 69570 dated May 30, 1978, alleged that respondent had 

violated Section 77 .1109(c) (1) because ·a portable fire extinguisher had 

not been provided in the control room on the fifth level where four portable 

welding units were located. The Assessment Office proposed a penalty qf 

$40 and respondent has agreed to pay the full amount. Counsel for respondent 

stated that the factual situation with respect to this alleged violation was· 

similar to that which has already been described in connection with the pre~ 

ceding alleged violation (Tr. 377). 

Docket No. PIKE 79-91-P 

Citation No. 69571 dated May 30, 1978, alleged that respondent had 

violated Section 77.200 because the preparation plant was not being maintained 

in a safe condition to prevent accidents because two pieces of metal were 

hanging loosely from the plant's framework on the third level. The Assessment Office proposed a penalty of $90 and respondent has agreed to pay a 

penalty of $45. Counsel for respondent stated that the bolts in the top of 

the panels were in the process of being removed as an expansion of the plant 

was in progress. MSHA' s counsel stated that he had agreed to the reduced 

penalty because a question exists as to whether the citation involved a condition that could result in an accident (Tr. 378-379). 

Citation No. 69572 dated May 30, 1978, alleged that respondent had violated Section 77.1102 because signs warning against smoking and open flames 

had not been posted at the oil storage. area located adjacent to the hoist 

house. The As.sesament Offi.ce proposed a penalty of $30 and respondent has 

agreed to pay $30 •. Counsel for respondent stated that the inspector incorrectly described the area involved as a storage area for fuel because the 

only materi.al present was lubricating oil which could not be used, as alleged 

by the inspector's citation, to refuel equipment. The inspector conceded 

2032 
Leslie. v. MSHA & UMWA, Docket Nos. PIKE 78-400,. et al. (Contd.) 

that since he. di.d not actually tes.t the. oil in the barrel, he. w.ould have to 

agree that i.t could have been lubricating oil (Tr. 379-381). 

Ci.tati.on No. 6.9573 dated· May 30", 1978, alleged· that respondent had 

violated Section 77 .11Q9 (e} Ul. hy faili_ng to provide two portable fire 

extinguishers. at the oil s.torage.. area· located adjacent to the· main hoist 

house. located on the surface of the preparati.on plant. The.. As.sessment Office 

proposed· a penalty of $40 and respondent has agreed to pay a penalty of $30. 

If a hearing had been held with. respect to the violation alleged in Citation 

No. 69573," the. issues would be (1) whether· the inspector was correct in 

labeling the liquid in the barrel as fuel or whether the liquid was lubricating oil, and (2) whether a half barrel of either fuel or lubricating oil 

would be sufficient to constitute an "oi.l storage area" as that phrase is 

used in Section 77.1109(e)(l). Counsel for MSHA stated that he was willing 

to accept a reduced penalty because of the disputed factual issues and the 

inspector's concession that he is not certain whether the liquid was fuel 

or lubricating oil (Tr. 382). 

Citation No. 69574 dated May 30, 1978, alleged that respondent had 

violated Section 77.1109(c)(l) because respondent had not provided a portable fire extinguisher for a back hoe peing used on the surface at the 

preparation plant. The Assessment Office proposed a penalty of $40 and 

respondent has agreed to pay a penalty of $25. If a hearing had been held 

with respect to the allegations in Citq,tion No. 69574, the primary issue 

would have been whether respondent had violated Section 77.1109(c)(l). 

Respondent's counsel claimed that the alternator on the back hoe was inoperable and that the back hoe had-been taken out of service and therefore 

did not have to be maintained in accordance with Section 77 .1109 (c) (1). 

MSHA's counsel stated that his position was that any vehicle on mine property 

had to be ·maintained in a safe condition and that would include being in 

compliance with Section 77.1109(c)(l). Respondent's answer to MSHA's 

argument was that new equipment must be brought on mine property and checked 

for permissibility and other factors before being taken underground. Respondent argues that it would be improper to cite violations on such new 

equipment or on any equipment which is not in service. MSHA's counsel stated 

that the parties had agreed to a penalty of $25 in settlement of the issues 

described above (Tr. 383). 

Citation No. 69578. dated May 30, 1978, alleged that respondent had 

violated Section 77 .400 (b) by failing to provide a guard to protect workers 

from injury in case of a whipping motion which might result from a broken 

belt. The Assessment Office proposed a penaJty of $52 and respondent has 

agree4 to pay a penalty of $35. Respondent's counsel stated that there was 

a guard outby the belt and between the belt and the traveled area. He said 

that the only time a miner would come inby the guard is when work needed 

to be done on the belt and that at s.uch... times., the belt is shut off. Moreover, according to respondent's. counsel, the citation was abated by the 

erection of some danger signs instead· of a guard. MSHA's counsel stated 

that he had agreed to accept a penalty of $35 in view of the question of 

whether anY.one W.ould ever come into a hazardous position below the belt 

(Tr. 384-38$) • 

2033 
Leslie. v. MSHA & UMWA, Dock.e.t No~. PIKE 78-400, et al. (Contd.) 

Ci.tati..on No. 69579 dated May 30, 1978, alleged that respondent had 

violate.d Se.cti.on 77 .202. he.cause. an excess.ive amount of loose dry coal had 

be.en allowed· to accumulate.around the. electrical components. on a feeder. 

The. Assessment Offi..ce. propas.ed a penalty of $52 for this alleged violation. 

Res.pondentt.s.couns.e.1 stated· that in thiS instance. the. feeder had been out 

of servi.ce. for 6. months. and MSHA' s. counsel· agre.ed that since. the feeder was 

out of ser\ri.ce, · th.are Wa.s. no . danger of fi.re and that MSHA has decided to 

vacate Citation No. 6:9.579. Coilnsel also explained that even· though. the 

citati.on s:.tates: that the. sw.i.tch. for the. fee.der was. in an "on" position, that 

condi.tion caus:e.d no hazard be.caus:.e. the. feeder was: not connected to a power 

source. (Tr. 386~387}. 

Citation No. 69580 was dated May 3Q, 1978, and alleged that respondent 

had violated Secti.on 77 .1109 by failing to provide a portable fire extinguisher 

on the same feeder mentioned in the preceding paragraph above. The Assessment 

Office proposed a penalty of $38 and MSHA has agreed to vacate Citation No. 

69580 for the same reason as given above, namely, that the feeder had not 

been used for 6 months and that respondent had no plans to use it. In such 

circumstances, it is dou[>tful that a feeder is required to be provided 

with a fire extinguisher, although res'pondent did abate the citation by providing a fire extinguisher for the inoperative feeder (Tr. 388). 

Citation No. 69581 dated May 30, 1978, alleged that respondent had 

violated Section 77 .400(b) by fai.ling to install a guard on the outby conveyor belt at a point immediately outby the opening of the main silo. The 

Assessment Office proposed a penalty of $52 for this alleged violation and 

respondent has agreed to pay the full amount. Respondent's counsel introduced as Exhibit C a picture of the conveyor belt for the purpose of supporting his argument that there was a passageway all the way around the belt and 

that no one had to travel under the belt conveyor as alleged in the inspector's 

citation (Tr. 389-390). 

Citation No. 69582 dated May 30, 1978, alleged that respondent had 

violated Section 77.205(b) by failing to provide and maintain a safe means 

of access outby the drawoff tunnel opening for a distance of about 20 feet 

in all directions. The citation specifies that a safe means of access was 

prevented by existence of an excessive accumulation of loose coal, muddy 

water, and other materials in a depth of from 6 to 12 inches. The Assessment Office proposed a penalty of $72 and respondent has agreed to pay a 

penalty of $36. Respondent's counsel challenged the inspector's claim 

as to the factual situation and also argued that a loadout area was involved 

where some spillage would be expected. It was the second shift's duty to 

clean the area, but a strike had be.gun on the second shift so that the area 

was. not cleaned as it would have been if normal operations had continued on 

an uninterruped basis (Tr. 391-393). 

Ci.tati.on No. 69588 dated May 31, 1978, alleged that res.pendent had 

violated Section 77 .1605 (1) by. failing to provide suitable. buinper blocks 

which. would prevent overtrave.l or overturning. · The bumper blockS.:. ~re 

rendered ineffective.;· according to. the. cit a ti.on' because. loose coal had been 

2034 
Leslie v. MSHA & UMWA, Docket Nos .• PIKE 78..,-400~ et al. (Contd.) 

allowed to accumulate over thein~ The Assessment Off ice proposed a penalty 

of $32. MSHA's counsel stated that MSHA had agreed to vacate this alleged 

violation because the feeder had been out of service for 6 months and was 

not being used (Tr. 394). 

Citation No. 69589 dated May 31, 1978, alleged that respondent had violated Section 77.400(a) by not providing a guard for a tail roller. ~he 

Assessment Office proposed a penalty of $72 for this alleged violation, 

but the guard pertained to the feeder which had been out of service for 6 

months and, for that reason, MSHA's counsel stated that the citation would 

be vacated. 

Citation No. 69592 dated May· 31, 1978, alleged that respondent had 

violated Section 77.1104 by allowing loose coal to accumulate around the 

loadout control tower located on the surface_adjacent to the railroad tracks. 

The citation also ref erred to a 30-gallon oil can and alleged that the 

conditions created an extreme fire hazard.· The.Assessment Office proposed 

a penalty of $60 and respondent has agreed to pay a penalty of $48. Respondent's counsel stated that the area involved was a loadout area where some 

accumulation of coal is bound to occur~ The.area had not been cleaned 

as well as would normally have been the case because of a work stoppage. 

In such circumstances, MSHA's counsel believed that a reduced penalty was 

justified. 

I find that counsel for respondent and MSHA gave satisfactory reasons 

for the penalties agreed upon in their settlement conferences and that the 

settlement agreement hereinbefore discussed should be accepted. 

Sunnnary of Assessments and Conclusions 

(1) As hereinbefore found in my decision in Docket No. PIKE 78-400, 

the Application for Review or Notice,of Contest of Citation No. 69563 should 

be denied and Citation No. 69563 should be affirmed. 

(2) Pursuant to my decision in Docket No. PIKE 78-400, respondent 

should be assessed a penalty of $50 for the violation of Section 103(f) of 

the Act alleged in Citation No. 69563. That penalty is also a part of 

MSHA's Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 79-90-P and will hereinafter be listed among the penalties otherwise 

settled by agreement of the parties. 

(3) Respondent is the operator of the Leslie Mine and Preparation 

Plant and, as such, is subject to the provisions of the Act and to the 

regulations promulgated thereunder. 

(4) The settlement agreements proposed by the parties in Docket 

Nos. PIKE 79-90-P and PIKE 79-91-P should be approved because good reasons 

were given by respondent's and MSHA's counsel in support of the settlement 

agreements. 

2035 
Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.) 

(5) Pursuant to the parties' settlement agreements and my decision 

in Docket No. PIKE 78-400, the civil penalties listed below should be 

assessed. 

Docket No. PIKE"79~90~P 

Citation No. 67891 5/24/78 § 77.502 . ............. •··•· ..•............•. $ 61-.00 

Citation No. 67893 5/24/78 § 17 .-400 (a)···· .•.•.•.. , .•.• -,-,.,-..···.··. 56.00 

Citation No. 67896 5/24/78 § 77.204 . ... •··•· ... ····· ................ 40.00 

Citation No. 67897 5/24/78 § 77.1109 (b) . ........... - .................. 50.00 

Citation No. 67898 5/24/78 § 77.1605{a) . .............................. 106.00 

Citation No. 67900 5/24/78 § 77 .205 . ........•...•... •··•· ................ 66.00 

Citation No. 69563 5/30/78 § 103 (f) . ..................................... 50.00 

Citation No. 69565 5/30/78 § 77 .1710 (i)- •••. , •..•. , •. , •. , •. ,. 70.00 

Citation No. 69566 5/30/78 § 77.410 ········~·~···~··· 70.00 

Citation No. 69567 5/30/78 § 77 .1109 (c) (1) . .. ····· ........... 70.00 

Citation No. 69569 5/30/78 § 77 .1109 (d) . .............. 52.00 

Citation No. 69570 5/30/78 § 77 .1109 (c) (1) . .......... ·40~00 

Total Settlement and Contested Penalties in 

Docket No. PIKE 79-90-P ....................... $ 731.00 

(6) Pursuant to the parties' settlement agreement, the civil penalties listed below should be assessed. 

Docket No. PIKE 79-91-P 

Citation No. 69571 5/30/78 § 77.200 ••••••••••••••.••• $ 

Citation No. 69572 5/30/78 § 77~1102 ••••••••••••••••• 

Citation No. 69573 5/30/78 § 77.1109(e)(l) ••••••••••• 

Citation No. 69574 5/30/78 § 77.1109(c)(l) ••••••••••• 

Citation No. 69578 5/30/78 § 77.400(b) ..•••••.••••••• 

Citation No. 69581 5/30/78 § 77.400(b) ••••••••••••••• 

Citation No. 69582 5/30/78 § 77.205(b) •••••••••.••••• 

Citation No. 69592 5/31/78 § 77.1104 ••••••••••••••••• 

Total Settlement Penalties in Docket 

No. PIKE 79-91-P .............................. $ 

45.00 

30.00 

30.00 

25.00 

35.00 

52.00 

36.00 

48~00 

301.00 

(7) MSHA's Petition for Assessment of Civil Penalty filed in Docket 

No. PIKE 79-90-P should be dismissed as requested by MSHA's counsel to the 

extent that it seeks assessment of a penalty for the violation of Section 

77.1109(d) alleged in Citation No. 67894 dated May 24, 1978. 

(8) MSHA's Petition for Assessment of Civil Penalty filed in Docket 

No. PIKE 79-91-P should be dismissed as requested by MSHA's counsel to the 

extent that it seeks assessment of civil penalties for the violations of 

Sections 77.202, 77.1109, 77.1605(1), and 77.400(a) alleged in Citation 

Nos. 69579, 69580, 69588, and 69589, respectively. 

WHEREFORE, it is ordered: 

(A) The Application for Review or Notice of Contest filed in Docket 

No. PIKE 78-400 is denied and Citation No. 69563 dated May 30, 1978, is 

affirmed. 

2036 
Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, ~t al. (Contd.) 

(B) The parties' requests for approval of settlement are granted and 

the settlement agreements. submitted on the record in Docket Nos. PIKE 79~90-P 

and PIKE 79-91....:P are approved~ 

(C) Pursuant to the-parties' settlement agreenient and the decision 

in Docket No. PIKE 78""'400, respondent shall, within 30 days from the date 

of this decision,. pay.civil penalties· totaling $1,032.00 as set forth in 

paragraphs 2, 5, and 6 above. 

(D) MSHA's Petition for Assessment of Civil Penalty filed in Docket 

No. PIKE 79-90-P is dismissed to the extent specified in paragraph 7 above. 

(E) MSHA's Petition for Assessment of Civil Penalty filed in Docket 

No. PIKE 79-91-P is dismissed to the extent specified in paragraph 8 above. 

Rf~h;~<lC: 

~.,JC.~~ Steffey 

Administrative Law Judge 

Distribution: 

John M. Stephens, Esq., Attorney for Leslie Coal Mining Company, 

Stephens, Combs & Page, P.O. Drawer 31, Pikeville, KY 41501 

(Certified Mail) 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mary Lu Jordan, Attorney, United Mine Workers of America, 900 - 15th 

Street, NW, Washington, DC 20005 

2037 

... 
FEDERAL. MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5209 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

BURGESS MINING AND CONSTRUCTION 

CORPORATION, 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE ~AFETY AND HEALTH 

ADr-11.NISTRATION (MSHA), 

Applicant Docket No. SE 79-42 

Boothton-Pit 

Respondent 

DECISION 

Appearances: Frank M. Bainbridge, Esq., Birmingham, Alabama, for Applicant; 

Murray A. Battles, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingha;n, Alabama, for Respondent. 

Before: Judge Fauver 

This proceeding was brought by Burgess Mining and Construction Corporation under section 105(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq., to review the validity of a citation issued by a 

federal mine inspector pursuant to section 104(a) of the Act. 

The parties submitted prehearing statements pursuant to a notice of 

hearing, and a hearing was held on July 10, 1979, in Birmingham, Alabama. 

Both sides were represented by counsel, who have submitted their proposed 

findings, conclusions, and briefs following receipt of the transcript. 

Having considered the evidence and the· contentions of the parties, I 

find that the preponderance of the reliable, probative, and substantial 

evidence establishes the following: 

FINDINGS OF FACT 

l. At all pertinent times, Applicant, Burgess Mining and Construction 

Corporation, operated a coal pit known as the Boothton Pit, in Shelby 

County, Alabama, which produced coal for sales in or affecting interstate 

commerce. 

2. A navigable stream, the Cahaba River, cuts through Applicant's 

operations and interrupts its 9-mile haulage road used in connection with 

mining operations at its Boothton Pit. 

2038 
3. In 1969, Applicant obtained the necessary federal and state 

autnorizations to construct a bridge across the river so Applicant could 

travel oack and forth from its mines to the preparation plant, which are 

on opposite sides of the river. To ensure that the bridge would not impede 

the river's flow, the approved design (for a flat~top concrete bridge resting on the riverbed) included a number of 36-incn pipes parallel to the 

course of the river's flow and through which it could pass. 

4. Since its construction, the bridge has remained structurally 

unchanged, without rails or berms on either edge. The driving surface was 

measured to oe about 6 feet above the riverbed and, with the exception of 

heavy rains, the river was about 3 feet deep on the ~pstream side and about 

l foot deep on the downstream side of the bridge. The bridge is about 

26 feet wide and about 210 feet long. 

5. On May 9, 1979, MSHA inspector Greg HcDade, accompanied by his 

supervisor, James Sanders, issued a citation charging Applicant with a violation of 30 CFR 77.1605(k), as follows: 

Guards were not provided on either side of the concrete 

bridge across the"Cahaba River which had been constructed by 

this mining company as a part of the haulage road system 

fro~ the illine site to the preparation plant. The bridge is 

24-1/2 feet wide, 410 feet long with a 5-foot drop from the 

top of the bridge to the water level on the lower water side 

of the bridge and a 2-foot drop to the water level on the 

high water side of the bridge. 

6. Section 77.1605(k) provides that "Berms or guardrails shall be 

provided on the outer bank of elevated roadways." Both inspectors considered the bridge part of Applicant's haulage road system for transporting 

coal from the pits on one side of the river to the preparation plant on 

the other side. 

7. Inspector McDade determined that guardrails should have been 

installed to prevent coal trucks and other vehicles from going over the edge 

of the bridge. He considered as adequate anything that would keep a large 

vehicle on the bridge by deflecting its tires inward in case it lost control, 

such as 12 x 12 ties stacked 24 inches high and anchored to the bridge. 

8. Before the inspection on May 9, 1979, the subject minin6 operations 

had been inspected by MSHA,on a regular basis, at least 30 to 50 times, from 

1970 to 1979. During this period, MSHA never cited Applicant for failing to 

install guardrails or berms on the bridge, although the lack of guardrails or 

berms on the haulage road was the subject of a notice of violation issued to 

Applicant on May 1, 1972, by MSHA' s predecessor ]j which stated: "Elevated 

1/ MSHA was created March 9, 1978, when federal mine safety and 

health enforcement was transferred from the Interior Department to 

the Department of Labor. 

2039 
roadways along the haul road between the ;nine and the preparation plant 

needed ber.ns or guards provided on the outer banks • 11 At that ti;ne, the 

predecessor a5ency (the Interior Department) furnished Applicant with a 

study indicating specific locations along the 9-mile road where it had 

determinea guardrails or berms should be installed. The bridge, which is 

part of the haul road, was not included as an area in need of guardrails 

or berms. As part of a settlement of the 1972 notice, the parties agreed 

that Applicant would withdraw its application for review of the notice and 

would install rails or berms at the places specified by the Interior 

Department. 

'). The oridge has been used regularly without guardrails or Ularkers 

for aoout 10 years with only one recorded mishap, in 1971 or 1972, when 

defective orakes forced the front wheel of a coal truck to slide over tne 

retaining wall at one end of the bridge. The truck was traveling slowly 

enough to prevent its falling off the wall. A coal truck traveling at 

nor:ual speed would probably fall on its side into the river if one of its 

wheels ran off the edge of the bridge, especially if it were loaded. 

10. Applicant nor:nally has five to seven coal trucks operating between 

the pit ana preparation plant. A driver usually .nakes six or seven trips 

across the bridge each day. Coming from the preparation plant on the east 

side of the river, an unloaded truck would approacn the bridge downhill, 

~ake a 90-degree turn onto the bridge, at about 5 to 10 miles per hour, and 

come to an almost complete stop before straightening up and crossing the 

bridge. The driver would shift into fourth gear and attain a speed of 25 to 

35 ;niles per hour before reacning the west side of the bridge. 

11. Returning from the mine to the preparation plant, the truck might 

cross the bridge at about 20 to 30 miles per hour before downshifting into 

third gear as it entere~ the 90-degree turn on the east side of the bridge. 

Entering the turn, the truck would be traveling about 10 to 15 miles per 

hour. The speeds in Fdgs.· 10 and 11 assume normal driving behavior. 

12. Drivers treat the bridge as a one-way road, though the road on 

land is two-way. 

13. Applicant's coal trucks have air brakes with master cylinders on 

each wheel. The steering is power-assisted and is operated by hydraulic 

system. In the event of a .uotor failure, the power steering and hydraulic 

system would probably fail, but the brakes would continue to operate as 

long as there was still air pressure. The overall effectiveness of the 

brakes would be reduced when wet. 

14. The water level of the Cahaba River varies depending upon the 

amount of rainfall, with the river overflowing the structure's surface 

several tiwes each year, usually in the late winter and early spring. 

15. At various times, Applicant's trucks have crossed the bridge, in 

daylight, when the water was above the driving surface. The bridge would 

2040 
no longer be visiole when tile water was 6 inches to 1 foot above its surface and would be impassable when the water was deeper than 2-1/2 to 

3 feet. w'nen the bridge is under water, the only way to determine its 

location is a ripple effect caused by the water moving against the bridge 

on tne upstream side and dropping off on toe downstream side. The upsurge 

would be fairly constant across the bridge's surface until the run-off on 

the downstream side. The lines of demarcation would be reasonably clear 

to a driver. 

16. When the overflow on the bridge is too deep, drivers may refuse 

to cross tne bridge without objection from Applicant. Applicant itself has 

refused to permit use of the bridge when it determined the water to be too 

high. The standard used by Applicant for determining wnen the bridge is 

unsafe is the axle height of the smallest vehicle, a pick-up truck, wnicn is 

about 14 inches. The axle on Applicant's coal haulage trucks is 27 inches 

above the ground and the frame is over 38 inches above the surface. In 

rainy seasons, a supervisor generally would watch the river on an hourly 

basis. 

17. During the winter, drivers nave often crossed the bridge in the 

dart< wnen working a late shift, out not with the water above the. road surface. There are no floodlights on the bridge and the headlights on the 

trucks are not considered adequate for driving at night if the bridge is 

under water. 

18. Applicant introduced in evidence an undated memorandum circulated 

by MESA' s assistant ciirector respecting the application of section 77 .1605(k) 

(Exh. B-d, p. 2). This memorandum states in part: 

This standard only applies to roads cut along the side of a 

mountain, hill, pit wall, or earth bank where one side of the 

road is protected 'oy natural barrier (inner bank) but where 

vehicles or equipment may run off and roll down the unprotected outer bank.· 

This standard does not apply to road·s "elevated" above the 

terrain to provide drainage, or because the road is "elevated" by reason of drainage ditches * * * to facilitate 

drainage or snow removal. [Diagrams excluded.] 

In 1972, Applicant receive'd the above memorandum as an attachment to a 

memorandum dated October 19, 1972, addressing the s&~e issue, which states 

that the "memorandum dated June 28, 1972, * * * is hereby revoked and 

superseded by this memorandum." The October 19 memorandum, which appears 

to supersede the undated one, reads in part: 

Section 11 .1605( k) provides: "Berms or guard rails shall 

i:>e provided on the outer bank of elevated roadways." This 

2041 
standard applies to that part of an elevated haulage road 

wnere on.e bank is, or both banks are, unprotected by a 

natural barrier which will prevent vehicles or equipment 

fro.n running off and rolling down the unprotected bank or 

banks • 

.Berms or guard rails shall be provided on the unprotected 

ban~, or banks, where the emban~~ent slope and e~bank:nesit 

height equal or exceed those slopes and heights shown in 

the following figure: 

1·117.1 

'l 

0 10 !;.<) 

f!ol(IAra:M~NT llCIGHT h lfll 

DISCUSSION 

This case concerns th.e validity of a citation issued under section 

104(a) of the Act. The inspector's citation alleges that Applicant violated 30 CFR 77.1605(k) and that the violation could significantly and 

suostantially contribute to the cause and effect of a mine safety hazard. 

The threshold issue is whether the bridge is covered by 30 CFR 77.1605(k), 

which requires that "Berns or guardrails shall be provided on the outer 

bank of elevated roadways •11 

2042 
Applicant contends that the bridge is not covered by the standard. It 

contend~ that the. plain meanin5 of the standard shows that it is intended 

to apply only to roads cut along the sides of a mountain, hill, pit wall, 

or earth bank where one side of the road is protected by a natural barrier, 

the inner bank, but where vehicles or equipment may run off the other side, 

the outer bank. It points out that the Secretary has promulgated no regulation specifically applicable to bridges or fords. (Applicant relies on 

the testb1ony of Inspectors McDade and Sanders who stated that no such 

regulation existed.) 

Applicant also contends that the prior undated memorandum, the 10 years 

without serious mishap, the 1972 settle~ent concerning the lack of guardrails along the haulage road, and the 30 to 50 safety inspections without 

a charge of violation concerning the bridge, all shed "probative value as 

to tne correct 'construction'to be given to the regulation." 

The Secretary contends that Applicant's bridge across the Cahaba River 

is an "elevated roadway" within the meaning of section 77 .1605(k) and must, 

therefore, have benns or guardrails. The Secretary argues that section 

77 .1605(k) "applies to~ that part of an elevated haulage road where one bank 

is, ·or botn oanks are, unprotected by a natural barrier. which will prevent 

vehicles or equipment from running off and rolling down the unprotected 

bank or banks • 11 

In applying 30 CFR 55.9-22, which is identical to 30 CFR 77.1605(k), 

to a~ elevated pipeline roadway with banks on both sides, Judge Moore concluded that the standard applied to all elevated haulage roadways whether 

curved or straight. Cleveland Cliffs Iron Company, VINC 78-300 

(September 8, 1978). He interpreted "outer bank" to mean whichever bank 

is hazardous "and if both sides of the road present a hazard of rolling 

down a steep embankment·, then both sides of the roads are required to have 

berms." 

In contrast, Judge·Koutras in Peabody Coal Company, VINC 77-102-P 

( DeceJioer · 13, 1977), held that the elevated side of an inner bank, even 

though dangerous, was not subject to the guardrail standard: 

I conclude that Respondent's position with respect to the 

application of the regulation on the facts presented in thts 

case is correct• The term "outer bank" is not further defined 

by the regulations. However, the term "outer" has been construed to mean "of or pertaining to the outside; that is without or on the outside; exterman; opposed t9 inner," 67 C.J.S. 

538; Brislin v. Carnegie Steel Co., 118 F. 579 (WD Pa. 1902). 

On the facts presented, the parties are in agreement that the 

deceased ran off the road at the inside turn of the road while 

traveling around a curve in the road. In my view, this point 

was the inner bank of the roadway which I have found was elevated. However, the regulatory language specifically and 

2043 
clearly on its face requires a berm or guardrail on the outer 

bank, which in this case would be the opposite side of the 

roadway adjacent to and paralleling the drainage ditch and 

county road. [Emphasis in original.]· 

In the. instant case, some light is shed on the issue by a question 

and answer in the parties' briefs. The Secretary asked: "Would Burgess 

contend that a bridge on a haulage road 50 feet high would not be required 

to have guardrails in that it is not an elevated roadway and does not have 

an outer bank?" In the Secretary's view, section 77.1605(k). would require 

the bridge to nave guardrails, but in the view of Applicant: 

wnile all would agree that any bridge 50 feet high should 

have rails, Burgess does not agree that MSHA under existing 

"standards" has the right to require rails and to impose fines 

and penalties for the absence of rails on bridges whether the 

bridge be 50 feet high or, as in this case, five feet high. 

The Secretary's question overlooks the possibility of an imminent danger withdrawal order. Section 107(a) of the Act authorizes such orders 

wherever :niners are subject to an "imminent danger." This authority applies 

without regard to the question of compliance with a safety standard or regulation. It is directed at dangerous conditions, regardless of the question 

whether a safety violation has been committed. 

The existence of this authority moots the Secretary's question whether 

a 50-foot lligh bridge could go unguarded. Closer examination might indicate 

that bridges of much lower heights, including the height of Applicant's 

bridge, may pose a question of innninent danger. This question is not 

involved nere, since the inspector issued a citation, not a withdrawal 

order, and since his citation found that: "the violation has not created 

an imminent danger" (Exh. B-11). However, the authority granted by section 

107(a) ma1.tes clear that the issue of the application of the guardrail regulation is not an all-or-nothing question of protection or no protection concerning bridges. Rather, the issue is whether Applicant's bridge is covered 

by a regulation that says "berms or guardrails shall be provided on the 

outer bank of elevated roadways." I hold that it is not. 

Two of the operative terms of the regulation--"elevated" and 

"roadway"--could apply to the bridge. The bridge is an integral part of 

the haulage road and could reasonably be held to be a "roadway." Also, it 

is necessarily elevated to cross the river, and could reasonably be held 

to be an "elevated roadway." However, the use of the term "the outer bank" 

indicates that the regulation was intended to apply to roads cut along the 

side of a mountain, hill, pit wall, or earth bank, and not to apply to a 

bridge crossing a river. 

This plain meaning is confirmed by the Government's 

administrative enforce1uent position that interpreted the 

apply to such roads and not to bridges crossing rivers. 

2044 

longstanding 

regulation to 

Its many years of 
investigation of Applicant's site without asserting a different interpretation, its settlement of an administrative litigation with Applicant premised 

on this very interpretation, and its issuance of an early memorandum showing 

this interpretation all show that the original intent of the drafters of the 

regulation was not to require guardrails or berms on bridges crossing rivers. 

These are significant support for the view that such was, and has always 

been, the plain meaning of the words of the regulation. When the Government 

changea its position on enforcement, the change reflected a change in policy, 

not a later discovery that the words "the outer bank" really mean "one 

***or i>oth" banks of a roaci. 

The Govern.nent is bound by the plain !!leaning of the words used in its 

regulations. It also has the duty to make its regulations as simple and 

clear as the subject matter will permit. An operator is entitled to rely 

upon the plain meaning of words and should not be held liaOle (which may 

mean suostantial civil or criminal penalties and a mine shutdown) for failing to anticipate that the Government will rely upon a hidden or obscure 

meaning. 

If the Government decides to change enforcement policy, it must not do 

so by an interpretation that stretches a regulation beyond its plain meaning. Fairness requires that rulemaking procedures to revise the regulation 

be employed. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over the pa~ties and the 

subject matter of the above proceeding. 

2. Applicant's bridge across the Cahaba River is not subject to the 

safety standard provided in 30 CFR 77.1605(k). 

ORDER 

wHEREFORE IT IS ORDERED that the application for review is GRANTED 

and the subject citation is VACATED. 

tJ~ '}-~v~ WILLIAM FAUVER, JUDGE 

Distribution: 

Frank M. Bainbridge, Esq., 1010 Massey Building, Birmingham, AL 

35203 (Certified Mail) 

Murray A. Battles, Esq., Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 1929-9th Avenue South, Birmingham, 

AL 35205 (Certified Mail) 

2045 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52o3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. DENV 79-139-PM 

Petitioner A.O. No. 41-00046~05001 

v. 

EL PASO ROCK QUARRIES, INC., 

Respondent 

Docket No. DENV 79-140-PM 

A.O. No. 41-00046-05002 

Appearances: 

Before: 

Docket No. DENV 79-176-PM 

A.O. No. 41-00046-05003 

El Paso Quarry & Plant Mine 

DECISION 

Barbara G. Heptig, Esq., and Jack Ostrander, Esq., Office 

of the Solicitor, U.S. Department of Labor, for Petitioner; 

Ralph W. Scoggins, Esq., El Paso, Texas, for Respondent. 

Judge Charles c. Moore, Jr. 

The three cases captioned above were consolidated for hearing to the 

extent that general information introduced in the first docket number tried 

was not repeated in the other docket numbers although ~t was agreed that 

such information or evidence could be considered as having been introduced 

in all three cases. The company is a large operator and I find that no penalty that might be assessed will affect its ability to continue in business. 

It has no prior history of violations and all violations which are found 

herein to have occurred, were abated promptly and in good faith. 

DOCKET NO. DENV 79-139-PM 

Citation No. 159658 alleges that an elevated roadway was not equipped 

with berms or guards along the outer edges in violation of 30 CFR 56.9-22. 

The road that is subject to the citation is for access to the very top of 

the quarry wall for the purpose of drilling and blasting. Inspector Kirk 

stated that the road was not used for hauling, loading, or dumping. In 

Cleveland Cliff Iron Company v. Secretary of Labor, VINC 78-300-M 

(September 8, 1978), I ruled that an identical berm standard only applies 

to mine roads designed for hauling, dumping and loading. I see no reason 

2046 
why the requirement should be restricted to such roads, but it nevertheless 

is, and until the standard is changed or the Commission rules otherwise, 

I shall continue to interpret the standard as applying to only such roads 

as I have indicated. The citation is VACATED. 

Citation No. 159660 alleges that two employees on the No. 2 bench were 

breaking boulders with a hammer and were not wearing eye protection as 

required by 30 CFR 56.15-4. The evidence disclosed that the two "employees" 

were actually what is termed "rock pickers" in the El Paso area. They are 

not employees of El Paso Rock Quarries, Inc., but are actually either customers or employees of customers. As the evidence showed, a customer comes 

in and agrees to buy rock t.hat has been blasted by the Respondent. The 

customer then takes his own employees to the area and has them break up the 

rock for collection in a truck. 

This is not the typical "independent contractor" case such as the 

Interior Department's Board of Mine Operations Appeals, the Federal Mine 

Safety and Health Review Commission, the Federal courts, and the administrative law judges have been struggling with. In all o,f those cases, the 

alleged violation was caused by, or was allowed to occur by, an independent 

contractor who was performing some function for the mfne operator. The 

alleged culprit was being paid by the mine operator to perform some service 

in those cases. In the instant case, however, the individuals who were not 

wearing the required protective goggles, were not performing any function 

for the mine operator. They were customers buying rock or they were the 

servants of customers buying rocks. 

I cannot find in the cases decided by the Board or the Commission any 

guidance as to the question of whether a mine operator should be held 

responsible under the mine safety law for acts committed by a customer or 

a customer's servant. Section 3(g) of the Act defines a "miner" as "any 

individual working in a coal or other mine." Inasmuch'as the rock picker 

is doing his work iri a mine, he fits the definition of a miner. As such, 

he should be entitled to the same protection that the Act affords miners 

who are working for a mine owner. 

The standard in question, 30 CFR 56.15-4, requires that "all persons" 

wear safety goggles "when in or around an area of a mine or plant where 

a hazard exists which could cause injury to unprotected eyes." These rock 

pickers were breaking rocks with a hammer and were not wearing eye protection. I find that breaking rocks with a hammer creates a situation where 

eye injury could occur and since the Act was designed to protect miners 

and these rock pickers are miners, I find that a violation of the standard 

occurred. According to the inspector, the rock pickers do not speak English 

or at least do not admit speaking English •. It would do little good, therefore, for the inspector to try to determine- who their employer was in order 

to serve a citation on him. In some cases, the truck driver might be the 

employer, but in others, he might be an employee of someone else. If the 

Act is to be enfo~ced under the circumstances, the inspector's onl:y.recourse 

is to serve the mine operator. The mine operator may not have authority to 

2047 
require the customers to wear protective glasses, but at least he could 

furnish the glasses and instruct the rock pickers to wear them. I am going 

to find the mine operator responsible for the actions of th~ rock pickers, 

but I find very little negligence involved in the violation. A penalty of 

$25 will be assessed. 

Citation No. 159661 alleges that employees were observed riding on the 

outside running board of a dump truck in violation of 30 CFR 56.9-40(a). 

The standard cited prohibits men from being transported "in or on dippers, 

forks, clamshells, beds of trucks unless special provisions are made for 

their safety, or buckets except shaft buckets." At the commencement of the 

hearing, the attorney for MSHA moved to amend the citation so as to allege 

a violation of subsection (c) of 30 CFR 56.9-40 which prohibits miners from 

riding "outside the cabs and beds of mobile equipment * * *·" The attorney 

for Respondent objected to the amendment and pursuant to Eastern Associated 

Coal Corporation, 5 IBMA 185 (1975), the motion was denied. The prayer for 

a penalty is accordingly DENIED and the citation is VACATED. 

Citation No. 159662. The allegation here is that the outer edge of 

the second bench from the top of the quarry was not equipped with berms or 

guard rails as required by 30 CFR 56.9-22. The bench jnvolved was clearly 

the type of roadway where a berm is required by the regulation and it is 

equally clear that there was no berm at the time of the inspection. While 

berms must be constructed after blasting since the blasted boulders are 

used to form the berms, and while Respondent had just recently finished 

blasting at the time of the inspection, it is nevertheless true that 

Respondent allowed haulage trucks to use the road before building the 

berms. While I cannot accept the inspector's testimony that the berms 

would stop a fully-loaded truck, they would serve as a visual warning as 

to the location of the edge of the bench where the 40-foot drop begins. 

Or, if the truck were a runaway, they might slow it down enough to give the 

driver sufficient time to jump. The gravity is high but the negligence, 

in view of the fact that the blasting had just been finished, is low. A 

penalty of $100 is assessed. 

Citation No. 159663. The citation alleges a violation of 30 CFR 

56~9-71 in that a traffic sign "was partially hidden in the berm and 

vehicles were observed going to the opposite pattern of the right-of-way." 

The mandatory standard states that "traffic rules including speed, signals, 

and warning signs shall be standardized at each mine and posted." There is 

no allegation that the traffic was not standardized nor is there an allegation that the traffic pattern was not posted. The allegation merely is that 

one of the signs (not the only sign) was partially hidden in a berm. The 

partially-hidden sign was 600 to 800 feet from a proper sign and according 

to the testimony, the drivers are told verbally that when driving a haulage 

truck they should drive on the lefthand side. In order to rule in MSHA's 

favor, I would have to interpret the standard to require a sign every so 

many feet or perhaps at every intersection. But the standard does not 

require that and I accordingly VACATE the citation. 

2048 
Citation No. 159664 alleges a violation of 30 CFR 56.3-12 in that two 

employees loading rock by hand were between the truck and the quarry wall. 

The standard prohibits this practice because of the danger of rolling rocks 

trapping the miner against the truck or other piece of equipment leaving 

him with no escape route. Boulders were in fact coming down the slope wall 

and the miners were diverting. them into the dump truck. As in a previous 

citation, these miners were non-English speaking rock pickers and essentially customers of Respondent. While it may. seem harsh to require Respondent to control the activities of customers, I know of no other way that 

the purposes of the Act can be effectuated except to hold the mine operator accountable for the safety of these rock pickers. I hold the violation to be of moderate gravity and that it involves a low order of 

negligence. A penalty of $25 will be assessed. 

Citation No. 159665. The allegation is that 30 CFR 56.9-87 was violated in that the automatic reverse alarm was inoperative on one of the 

company trucks. This was a 35-ton haulage truck and naturally could do 

serious damage if it were to back over another piece of equipment or a 

miner. But the evidence indicates that all such equ~pment is checked every 

morning and every night, and whenever _the vehicle is backed up. The drivers 

are instructed to take any truck to the shop to be fixed by mechanics when 

a failure occurs. In the circumstances, I do not believe that the Act 

requires a mine operator to guarantee that a piece of equipment will not 

break down. His obligation is to check it often and repair it when it does 

break down and there is no proof in this case that the operator did not do 

just that. If the inspector had been able to determine when the horn 

became inoperative and that the miner operator should have known of it, a 

violation would be established. In the present circumstances, however, 

the citation is VACATED. 

Citation No. 159666. The charge is that an employee was barring down 

loose rock on the lift of the third bench without a sarety belt and rope 

in violation of 30 CFR 56.15-5. This is another "rock picker" violation 

and I have already held that the mine operator is responsible if a violation occurs. In this case, however, I am not convinced that there was a 

violation. · The standard requires safety belts and lines "where there is 

danger of falling." The individual in this case was working on a slope 

that he could walk up and down, but the inspector did not know the angle 

or grade of the slope. MSHA has failed to carry its burden of proving that 

there was a danger of falling and the citation is accordingly VACATED. 

Citat!ort No. 159688. The citation alleges that loose unconsolidated 

rock on a quarry wall was not supported or barricaded as required by 30 CFR 

56.3-5. The standard is somewhat general but prohibits men from working 

under or near dangerous banks and requires that overhanging banks be taken 

down or barricaded and posted. The evidence is not clear as to exactly 

what the inspector was referring to in using the phrase "loose, unconsolidated rock." It could not have been "loose" in the sense of unattached at 

any point because the wall was vertical and something was keeping the rock 

from falling. The inspector stated (Tr. 44): "Yes, sir, they were broken 

2049 
on three sides and only secured by one end." He apparently made the judgment that they were not sufficiently secure and therefore decided to use 

the term "loose and unconsolidated." But in order to abate the citation, 

Respondent had to rent a crane and try to dislodge the rocks with a large 

steel wrecking ball sometime referred to as a "headache pill." Respondent 

tried the crane and headache pill for 2 weeks and could not dislodge the 

rocks. It ended up having to blast the rocks out of the wall. In the 

circumstances, I do not see how I could find that these rocks were loose 

and unconsolidated. The citation is VACATED. 

Citation No. 159667. This citation alleges a violation of 30 CFR 

56.9-71 in that proper traffic signs were not posted. The evidence clearly 

establishes that at an intersection near the No. 1 primary crusher there 

were no stop or yield signs present. The fact that the drivers were told 

that trucks actually hauling rock had the right-of-way is no substitute for 

the traffic signs required by the regulation. There was negligence on 

Respondent's part but the gravity was only moderate. A penalty of $50 will 

be assessed. 

Citation No. 159668. The citation alleges a violation of 30 CFR 

56.4-23 in that records concerning the inspection of f~re extinguisher; 

were not available on the mine property. There is no allegation here that 

the fire extinguishers were defective, but merely that the records of 

inspections were not kept. Respondent's evidence was that the inspections 

were made but it admitted that no records were kept. I find the violation 

occurred but the hazard and negligence involved were of a small order. A 

penalty of $50 will be assessed. 

Citation No. 159669. The citation alleges a violation of 30 CFR 

56.11-2 in that tools, bars, pulleys, etc., were stored on a platform and 

that the platfono. contained no toeboards. The inspector thought that the 

hazard was to people passing below the platform who might be injured by 

falling objects. The standard states: "Crossovers, elevated walkways, 

elevated ramps, and stairways, shall be of substantial construction provided with handrails and maintained in good condition. Where necessary, 

toeboards shall be provided." The standard is obviously intended to provide safety for people working on the platform and toeboards would be 

required if a slipping hazard were present. The' standard does not prohibit 

storage of materials in the absence of toeboards. The citation is VACATED. 

Citation No. 159670. The citation alleges a violation of 30 CFR 

56.15-5 in that the crusher operator climbed on top of the jaw crusher to 

break a boulder with a sledge hammer without using a safety belt and rope. 

The inspector actually saw the operator climb into a hazardous position, 

he saw that safety belts and ropes were available in the cab of the jaw 

crusher but that the miner ignored them. The miner did not speak English 

and the inspector could not question him, but the only defense offered was 

that safety equipment had been supplied and the miner had been instructed 

to use it. I find there was a violation, that it was potentially hazardous 

and that Respondent was negligent in not doing more than merely instructing 

the miners to use safety equipment. A penalty of $150 will be assessed. 

2050 
Citation No. 159671. The allegation is that the work platform on the 

northwest side of the second No. 1 primary crusher tower was filled with 

12 to 18 inches of spillage in violation of 30 CFR 56.20-3(b). The standard requires that the floor of every workplace shall be maintained in a 

clean and, so far as possible, a dry condition. There was no denial that 

this was a work place and there was no denial that the spilled rock was 

on the platform. The evidence did not establish when the spillage occurred 

and when the operator knew or should have known of its occurrence. The 

gravity is moderate and the negligence in the absence of the aforementioned possible evidence has not been established to be great. A penalty 

of $100 will be assessed. 

Citation No. 159672. The citation alleges that the troughing pulleys 

under the feeder where metal sideboards protruded to create a pinch point 

were not guarded in violation of 30 CFR 56.14-1. The standard requires 

that gears, sprockets, chains, pickup pulleys, etc., which may be contacted 

by persons, and which may cause injury to persons, shall be guarded. A 

pinch point is such an area and there is no contention here by Respondent 

that the area in question was not a pinch point. The only question is 

whether the area is such that a person may contact the. pinch point and be 

injured. It was the inspector's testimony that employees would be required 

to be in the area to clean around the tail pulley, and to service the 

pulleys. The Respondent's witness testified that the only time an employee 

would have any reason to go to the area in question would be to perform 

services when the pulley was not running. Stopping the machinery for maintenance is required by 30 CFR 56.14-29 "except where machinery motion is 

necessary to make adjustments." There is no evidence in this case that 

machinery motion would be necessary for the type of maintenance work 

described by the inspector. If the parties had submitted diagrams or photographs, they might have sho~ whether or not the area in question was such 

that a person might wander in and be injured by the ung.uarded pinch point. 

As long as the attorneys, however, are content, who hover around a blackboard drawing, and have a witness point and say such things as "in order 

to get from this point here over to that point, you have to pass by this 

point here" they will have to be content with not having a record that 

supports their contention. In such cases, I will rule against the party 

having the burden of persuasion and insofar as this violation is concerned, 

that party is MSHA. The citation is VACATED. 

Citation No. 159673. The citation alleges a violation of 30 CFR 

56.11-1 in that loose unsupported cement was hanging from the steel structure over the No. 3 tunnel conveyor travelways. The standard requires that 

safe means of access be provided to all working places. Inasmuch as 

employees are required to go into the tunnel involved to clean and repair, 

it is a work place within the meaning of the regulations. The particular 

piece of cement that the inspector consid"ered loose and unsupported, had 

been in the same place and condition for 8 years at the time of the inspection. While the fact that the 1-1/2 inch thick piece of concrete had been 

in place for 8 years does not guarantee that it will stay in place for an 

additional day. It does bring into question the inspector's judgment as to 

2051 
whether it was in fact "loose, unsupported cement" the inspector's description of the violation was insufficient to support his allegation that the 

cement was in fact loose and unsupported or that a dangerous condition 

existed. The citation is VACATED. 

Citation No. 159674. The citation alleges a violation of 30 CFR 

56.16-5 in that two compressed gas cylinders were standing upright and 

not secured. The violation was established beyond question, as was the 

fact that Respondent was negligent. According to the inspector, however, 

there was very little chance that someone would be injured by the cyclinders falling on them. A penalty of $50 will be assessed. 

Citation No. 159679. The citation alleges a V-belt and drive in the 

travelway was not enclosed as required by 30 CFR 56.14-1. The testimony 

regarding this violation was somewhat contrary to the citation, but the 

fact is that a V-belt, located in a travelway was not completely guarded. 

It was also established that there was nothing to prevent miners in the 

. / area of this V-bel t during a working shift, and that a finger could be 

v lost if caught in the V-belt. Respondent was neglig~nt and the violation 

was hazardous. A penalty of $100 will be assessed. 

Citation No. 159680. The citation alleges a violation of 30 CFR 

56.14-1 in that the tail pulley of the No. 4 conveyor belt was not 

guarded. This citation is similar to the one immediately preceding it 

in this opinion, but involves a pulley rather than a V-belt. The hazard 

and negligence are about the same and accordingly, a penalty of $100 

will be assessed. 

Citatibn No. 159681. This citation also involves an unguarded pulley 

and alleged violation of 30 CFR 56.14-1. The evidence is essentially the 

same as that presented with respect to the two preceding citations. The 

gravity, negligence, and the violation itself were clearly established and 

a penalty of $100 will be assessed. 

DOCKET NO. DENV 79-140-PM 

Citation No. 160809 alleges a violation of 30 CFR 56.3-5 in that men 

were working drilling boulders at the toe of a 75-foot highwall with loose 

·unsupported rock hanging on the wall. The standard states that men shall 

not work near or und~r dangerous banks. The inspector testified that the 

rock which he considered to be loose because he saw a crack on one side, was 

about halfway up the 75-foot wall, and that the men were working 30 or 

40 feet from the toe of this vertical wall. In order to hit the men, the 

rock would have to fall away from the vertical face at an angle of approximately 45 degrees, and the testimony of the inspector did not convince me 

that this could happen. Also, the citation was abated by barricading the 

area, and the so called loose rock was left in place for approximately a 

year before it was taken down. In the light of these two factors, MSHA has 

failed to carry its burden of showing there was in fact a violation. The 

citation is VACATED. 

2052 
Citation No. 159682 alleges a violation of 30 CFR 56.11-2 in that the 

handrails around a work platform had an opening approximately 2 feet wide. 

The platform in question was about 10 feet high, and the inspector could see 

from the tracks that workers had stepped through the opening onto a guard 

for a V-belt or pulley. He actually saw one worker step onto the guard. 

There was a falling hazard, and Respondent was negligent in allowing the 

hazardous situation to exist. A penalty of $50 will be assessed. 

Citation No. 159683 alleges a violation of 30 CFR 56.11-1 in that an 

access ladder ended at an unguarded tail pulley. The inspector stated that 

if someone climbed the ladder, they could easily put their hand in the 

unguarded tail pulley. Instead of citing Respondent for having an unguarded 

tail pulley, the inspector chose to cite Respondent for failure to provide 

safe access to a working place. Inasmuch as there is a specific standard 

requiring that certain pieces of machinery be guarded, I do not believe the 

safe access standard was intended to cover the same type of condition. If 

the safe access standard can be stretched to cover unguarded pulley's, etc., 

it could also be stretched to cover everything from bad brakes to unsafe 

blasting caps. I do not believe that was the intent of the regulation and 

the citation is accordingly VACATED. 

Citation No. 159684 alleges a violation of 30 CFR 56.14-1 in that a 

revolving counter balance wheel, next to a travelway was not guarded. 

Although this wheel was solid and did not have gears or sprockets, it was 

nevertheless a dangerous piece of exposed machinery in an area where it 

could injure a miner. Respondent was negligent in allowing the condition 

to exist and is assessed a penalty of $100. 

Citation No. 159685 alleges a violation of 30 CFR 56.14-1 in that a 

revolving counter balance wheel, located in a travelway was not guarded. 

This violation is the same as the previous violation except in a different 

location. The hazard and negligence are the same and the same penalty of 

$100 is assessed. 

Citation No. 159686 alleges a violation of 30 CFR 56.11-12 in that an 

opening under a wash tower along a travelway was not guarded. The evidence 

established is that there was a hole 4 feet long and 18 inches wide, along 

the waikway that was unguarded. A person falling through the hole would 

fall about 8 feet to a metal structure and be seriously injured. The violation is established and Respondent was negligent. A penalty of $100 is 

assessed. 

Citation No. 159690 alleges a violation of 30 CFR 56.12-67 in that the 

fence enclosure around a transformer was torn and opened in one corner. The 

purpose of having a fence around a transformer, is to keep unauthorized 

people away from the dangerous high-voltage connections. The tear in the 

fence was 2 feet wide and easily big enough for a person to enter. The 

defense was that if a person wanted to get in, he could climb over the 

fence, but climbing over a 6-foot fence is obviously not as easy as walking 

through a hole in the fence. I found this to be a serious violation, and 

2053 
that Respondent was negligent in allowing the condition to exist. A penalty 

of $100 is assessed. 

DOCK.ET NO. DENV 79-176-PM 

Citation Nos. 159692, and 159699 were withdrawn by the Solicitor and no 

evidence was presented with the respect to them. They are accordingly, 

VACATED. 

Citation Nos. 159675, and 159695 both allege a violation of 30 CFR 

56.11-2 in that walkways where not equipped with toeboards. The inspector 

issued the citations because of that hazard to workers below the platforms 

here in question. The standard states:· "Crossovers, elevated walkways, 

elevated ramps, and stairways shall be of substantial construction provided 

With handrails, and maintained in good condition. Where necessary, toeboards 

shall be provided." 

In my opinion, the requirement of toeboards is for the protection of the 

workers on the walkway, and not for protection of those underneath. 30 CFR 

57.11-7-8 does provide that walkways and ramps be kept free of loose rock 

and extraneous materials, but that standard was not m&ndatory when the citations were issued. MSHA cannot enforce a nonmandatory standard by trying 

to stretch a mandatory standard tq fit. The citations are VACATED. 

Citation Nos. 159676, 159678, 159689, 159693, and 159694 all allege a 

violation of 30 CFR 56.14-1. They involve the failure to adequately guard 

balance wheels, and a V-belt. All were clearly unguarded and were accessible 

to workers. They all appeared to involve about the same degree of hazard 

and negligence, and I am assessing a penalty of $100 for each citation, or a 

total of $500 for this group. 

Citation Nos. 159696, and 159697 both allege a violation of 30 CFR 

56.14-1 in that head pulley's were not guarded and the pinch points were 

approximately 4 feet off of a work platform. The defense is that the only 

reason a miner would have for going in the area of these head pulley's, would 

be for maintenance, and that when maintenance is performed the machinery 

is shut down. That defense may reduce the likelihood of injury, but the 

standard is designed to protect anyone using that walkway whether he has any 

reason to be there or not. The required guards were missing, and Respondent 

was negligent. The gravity appears to be equal, and a penalty of $100 for 

each violation will be assessed, which is a total of $200 for this group. 

Citation Nos. 160802, and 160803 both allege a violation of 30 CFR 

56.14-1 in that pinch points of troughing rollers and side boards were not 

guarded, and were within 3 feet of the walkway. I had occasion to consider 

a similar condition, in Dravo Lime Company v. MESA, IBMA 77-M-l, October 28, 

1977, and I ruled in that case that standard 56.14-1 does require guards in 

the vicinity of troughing rollers and sideboards. I am still of the same 

opinion, and the ruling here is the same. The required guards where missing, 

Respondent was negligent, and the gravity is the same. A penalty of $100 

each will be assessed, or a total of $200 for this group. 

2054 
Citation Nos. 160801, 160804, and 160805, all allege violations of 

30 CFR 56.11-12 in that openings in the floor through which men or material 

may fall were not protected by railings or covers. While the unguarded 

holes varied in size, the inspector thought that a man could fall through 

any of them, and would fall about 12 feet. He also thought objects could 

fall through the holes onto people below. The standard clearly requires 

guards or covers over such holes, and the fact that the inspector saw no 

one in the area is no defense to the allegations contained in the citations. 

I do not consider the possibility of a 12-foot fall through holes of a size 

involved here as serious as the unguarded belts, and pulley's, and fly wheel, 

etc., but the possibility of injury existed, and Respondent was negligent 

in not guarding these openings. A penalty of $50 each will be assessed, or 

a total of $150 for this group. 

Citation No. 159691 alleges a violation of 30 CFR 56.12-68 in that the 

fence surrounding a transformer was not locked. While the evidence is far 

from conclusive, it appears likely that the citation here was issued within 

minutes of Citation No. 159690 involved in Docket No. ·DENV 79-140. It does 

appear that the inspector looked at the fence, cited Respondent because of 

the hole which a miner could walk through, and then cited the operator 

because there was no lock on the gate. If the fence i~ torn open, there 

is hardly any point in having the gate locked, and in my opinion, only one 

citation should have been issued. The instant citation is accordingly 

VACATED. 

Citation No. 159698 alleges a violation of 30 CFR 56.12-8 in that a 

"conduit was broken and the connector box was missing, leaving the splice 

open on the No. 8 conveyor belt drive motor * * *·" The evidence presented 

by the Secretary was somewhat confusing as to this alleged violation, and 

did not describe a situation where power wires pass into or out of electrical compartments. That is what this mandatory standard is concerned with. 

The citation is VACATED. 

Citation No. 159700 alleges a violation of 30 CFR 56.14-2 in that a 

travelway was not guarded against the whipping action of a broken overhead 

conveyor belt. The violation was clearly established, and injury could 

result from having a broken belt fall on a miner. Respondent was negligent, 

and a penalty of $100 is assessed. 

Citation No. 160806 alleges a violation of 30 CFR 56.11-1 in that in 

order to gain access to a travelway at the top of the bend, miner's are 

required to climb through or over handrails, and through openings in the side 

of the building. There is a gap between 24 and 30 inches between the handrails in the side of the building. A 30- to 40-foot fall could result. The 

standard requires the operator of a mine to provide safe access to all working places, and Respondent has failed to do so in this instance. That failure was negligent, and a serious accident could result. A penalty of $200 is 

assessed. 

2055 
ORDER 

It is therefore ordered that Respondent pay to MSHA, within 30 days, 

a total penalty in the amount of $2,650~ (?.. ~ ~ ~ 

Charles C. Moore, Jr. 

Administrative Law Judge 

Distribution: 

Barbara G. Heptig, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202. 

(Certified Mail) 

Ralph w. Scoggins, Esq., Suite 342, 5959 Gateway West, El Paso, TX 

79925 (Certified Mail) 

2056 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO •. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEST 79-94-M 

Petitioner A/O No. 04-00010-05001 

v. 

RIVERSIDE CEMENT COMPANY, 

Respondent 

Docket No. WEST 79-96-M 

A/O No. 04-00010-05003 

Appearances: 

Before: 

Docket No. WEST 79-138-M 

A/O No. 04-00010-05006 

Crestmore Mine and Mill 

Docket No. WEST 79-176-M 

A/O No. 04-00010-05008 

Docket No. WEST 79-177-M 

· A/O No. 04-00010-05009 

Docket No. WEST 79-198-M 

A/O No. 04-00010-05007 

Crestmore Plant 

DECISION 

Alan Raznick, Esq., Office of the Solicitor, U.S. Department 

of Labor, San Francisco, California, for Petitioner, MSHA; 

D. Marshall Nelson, Esq., Riverside Cement Company, 

Newport Beach, California, for Respondent, Riverside Cement 

Company. 

Judge Merlin 

The above-captioned cases are petitions for the assessment of civil 

penalties filed by the Mine Safety and Health Administration against 

Riverside Cement Company. A hearing was held on November 27, 1979. 

At the hearing, the parties agreed to the following stipulations: 

1. The operator is large in size. 

2057 
2. The operator has no history of prior violations. 

3. The operator's ability to continue in business will not be affected 

by the imposition of any penalties herein. 

4. There was good faith abatement with respect to the twelve alleged 

violations which involved an alleged violation of 30 CFR 57.14-1 (Tr. 2-3). 

Citation Nos. 376299, 375252, 375253, 375254, 376341, 376347, 376348, 

376305, 376309, 376313, 376327, 375285. 

Each of these citations alleges a violation of 30 CFR 57.14-1. At the 

hearing, the Solicitor and the operator introduced documentary exhibits and 

testimony with respect to these citations (Tr. 1-53). Upon conclusion of 

the testimony, counsel for both parties waived the filing of written briefs, 

proposed findings of fact and conclusions of law. Instead, they agreed to 

present oral argument and receive a decision from the bench (Tr. 53-54). 

After considering the evidence and oral argument, a decision was rendered 

from the bench as follows (Tr. 61-64): 

Citation 003J6299 involves a petition for the assessment 

of a civil penalty based upon an alleged violation of section 

57.14-1 of the mandatory standards. 

Section 57.14-1 provides as follows: "Gears; sprockets; 

chains; drive, head, tail, and take-up pulleys; fly wheels; 

couplings; shafts; saw blades; fan inlets; and similar exposed 

moving machine parts which may be contacted by persons, and 

which may cause injury to persons shall be guarded." 

Tne condition set forth in this citation is as follows: 

"The exposed moving machine parts (rollers) under the feed 

chutes where skirtiIJ.g is provided along the tail pulley area 

of crusher conveyor number eleven were not guarded. These 

rollers on the conveyor may be contacted by persons which may 

cause injury. This is located at the top deck of the 

secondary crusher." 

Three MSHA inspectors testified, including the inspector 

who issued the subject citation. They all stated that 

Section 57.14-1 would be cited in a case such as this because 

it presented a very dangerous situation. The hazardous condition was presented because a skirt board was present, 

attached to the belt at this location to prevent spillage. 

Due to the skirt board there was no play in the belt so that 

if an individual got caught between the belt and the rollers, 

he would not have time or space to get out and would be 

2058 
seriously injured. All the inspectors agreed that rollers 

along th~ belt where skirt boards are not present would not 

be cited under this mandatory standard. 

I find there was no violation. 

Section 57.14-1 talks of gears, sprockets, chains, drive 

pulleys, fly wheels, couplings, shafts, saw blades, fan 

inlets and "similar exposed moving machine parts". MSHA did 

not explain how or why rollers could be construed as similar 

to the enumerated items in the mandatory standard. Even more 

importantly, MSHA only cites rollers where skirt boards are 

present. As already stated, one of the inspectors specifically indicated that MSHA would not cite a roller where no 

skirt board was present, because if there was an injury from 

an individual touching a roller, it would not be a serious 

injury. I reject this argument. A mandatory standard simply 

cannot be administered on this basis. What constitutes or 

what might constitute a serious injury is so subjective that 

an operator would~never know what was expected of it. 

Moreover, if rollers fall within the definition of 

"similar exposed moving machine parts", then they are always 

within the definition and should be guarded everywhere. In 

other words, reference to this mandatory standard for this 

case either proves nothing for MSHA or it proves far too 

much. The Solicitor, during his oral argument, admitted that 

MSHA was selectively applying this mandatory standard to 

situations only where a serious injury would result. However, 

as I already have stated, a mandatory standard simply cannot 

be utilized in thi~ way. Undoubtedly, a hazard is presented 

by the cited condition and by other such conditions, but it 

is unfair to the operator and to the inspector as well to 

attempt to use a standard which either goes nowhere or goes 

too far. The proper course would be for MSHA to amend the 

regulations to cover this situation. 

I have neither the authority nor the inclination to substitute myself for the rule-making procedures set forth in 

the Act. The Secretary must realize that he cannot circumvent rule-making procedures regardless of how time-consuming 

they may be by attempting to persuade Judges of the Commission 

to interpret existing regulations in an unfair and unreasonable manner. 

I note that in Secretary of Labor v. Massey Sand and 

Rock Company, Docket Number Denver 78-575-PM, dated June 18, 

1979, Administrative Law Judge Koutras vacated ten citations 

under analogous circumstances. The reasons for my determination today are set forth herein. l./ 

'};./ As I advised the Solicit.or during oral argument, on July 27, 1979, 

the Commission denied the Secretary's petition for discretionary review 

of Judge Koutras' de~ision (Tr. 60). 

2059 
The parties have agreed that the interpretation adopted 

for citation 00376299 will govern eleven other citations 

involving this mandatory standard. 

Accordingly, I hereby vacate the following citations: 

376299, 375252, 375253, 375254, 376341, 376347, 376348, 376305, 

376309, 376313, 376327, and 375285. 

The foregoing twelve citations are-vacated and no penalty 

will be assessed. 

The bench decision is hereby affirmed. 

Citation Nos. 375261, 376323, 376318, 376340, 376286, 376310, 376291. 

The Solicitor moved to vacate these citations, stating that he did not 

feel there was sufficient evidence available to prove these violations. 

From the bench I granted this motion (Tr. 65). The granting of the Solicitor's motion to vacate is hereby affirmed. 

Citation No. 376332. 

The Solicitor moved to have a settlement approved for Citation No. 

376332 in the amount of $305, reduced from the original assessment of $530. 

The citation involved the inspector's finding of material spillage on the 

top work deck of the No. 2 reclaimer, a violation of 30 CFR 57.20-3(b). The 

Solicitor stated that there was apparently some confusion on the operator's 

part concerning the existence of a violation, and that this might have caused 

a delay in the abatement of the condition. From the bench I approved the 

settlement, stating that $305.00 was a substantial amount which would 

effectuate the purposes ·of the Act and that the original penalty seemed high, 

since the application of the Act to an operation such as this was very 

new (Tr. 66). Approval of this settlement from the bench is hereby affirmed. 

Citation Nos. 375248, 375250, 375259, 375265, 375267, 376284, 376301, 

376302, 376330, 375278, 375280, 375286, 376315, 376319, 375258, 375268, 

376285, 376342, 379001, 376283, 376322, 376311, 376336. 

The Solicitor moved to have a settlement approved for these citations 

in the amount of $1,826, 2./ which was the originally assessed amount. The 

Solicitor stated that ordinary gravity and ordinary negligence were involved 

in all of these citations. From the bench I approved these recommended settlements after having reviewed typewritten summaries of all the violations 

(Tr. 68). Approval of these settlements from the bench is hereby affirmed. 

2/ $1,826 added to $305 is $2,131 which was the figure referred to by the 

Solicitor (Tr. 67). 

2060 
ORDER 

It is hereby ORDERED that as set forth herein, the vacation of 

certain citations from the bench be AFFIRMED and that the imposition of 

penalties from the bench with respect to other citations, also as set 

forth herein, be AFFIRMED. 

In 

ORDERED to pay 

Issued: 

Distribution: 

the operator is 

this decision. 

Assistant Chief Administrative Law Judge 

Alan Raznick, Esq., Office of the Solicitor, U.S. Department of Labor, 

11071 Federal Bu"ilding, 450 Golden Gate Avenue - Box 36017, 

San Francisco, CA 94102 (Certified Mail) 

D. Marshall Nelson, Esq., Riverside Cement Company, 610 Newport 

Center Drive, Newport Beach, CA 92660 (Certified Mail) 

Administrator, Metal and Non-metal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

2061 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RIVERSIDE CEMENT COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. WEST 79-45-M 

A/O No. 04-00011-05001 

Docket No. WEST 79-46-M 

A/O No. 04-00011-05002 

Docket No. WEST 79-47~M 

A/O No. 04-0011-05003 

Oro Grande Plant 

DECISION 

Appearances: Alan Raznick, Esq., Office of the Solicitor, United States 

Department of Labor, San Francisco, California, for Petitioner, 

MSHA; 

D. Marshall Nelson, Esq., Riverside Cement Company, Newport 

Beach, California, for Respondent, Riverside Cement Company. 

Before: Judge Merlin 

The above captioned cases are petitions for the assessment of civil 

penalties filed by the Mine Safety and Health Administration against Riverside Cement Company. A hearing was held on November 27, 1979. 

At the hearing, the Solicitor moved to vacate six citations, stating 

that after reviewing the evidence available to MSHA regarding these citations, he had determined that MSHA could not prove the existence of the 

citations or the conditions that were cited in the citations. The citations 

MSHA moved to vacate were: 375084, 375091, 375092, 375505, 375513, and 

375119. From the bench I granted the motion to vacate. 

The Solicitor then moved that the remaining citations in these cases 

be settled for 100 percent of the assessed penalty, an amount totaling $510. 

He explained that after reviewing the evidence he had concluded that moderrate gravity and ordinary negligence were involved. I accepted the Solicitor's representations after I had independently reviewed each and every 

one of the citations. I pointed out that the assessed amounts were low but 

that I kept in mind that.the Act was being newly applied to an operation 

such as this. 

2062 
ORDER 

The decision granting the Solicitor's motion to vacate citations 375084, 

375091, 375092, 375505, 375513 and 375119 is hereby AFFIRMED; 

The acceptance of settlements i~ the amount of $510 for citations 

375097, 375506, 375107, 375110, 375114, 375120, 375525, 375085, 375089, 

375093, 375095, 375104, 375499 and 375501 is hereby AFFIRMED; the operator 

is ORDERED to pay $510 within 30 days from the date of this decision. 

~ ~ \\\~~-L~-- Paul Merlin 

Assistant Chief Administrative Law Judge 

Issued: 

Distribution: 

Alan Raznick, Esq., Office of the Solicitor, U.S. Department of Labor, 

11071 Federal Building, 450 Golden Gate Avenue - Box 36071, 

San Francisco, CA 94102 (Certified Mail) 

D. Marshall Nelson, Esq., Riverside Cement Company, 610 Newport Center 

Drive, Newport Beach, CA 92660 (Certified Mail) 

Administrator, Metal & Non-metal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

2063 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR . 

520! LEESBURG PIKE 

• FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RIVERSIDE CEMENT COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. WEST 79-98-M 

A/O No. 04-00010-05005 

Crestmore Plant 

DECISION 

ORDER TO PAY 

Appearances: Alan Raznick, Esq., Office of the Solicitor, U.S. Department 

of Labor, San Francisco, California, for Petitioner, MSHA; 

D. Marshall Nelson, Esq., Riverside Cement Company, Newport 

Beach, California, for Respondent, Riverside Cement Company. 

Before: Judge Merlin 

This case is a petition for the assessment of two civil penalties filed 

by the Mine Safety and Health Administration against Riverside Cement Company. 

At the hearing, the Solicitor moved that the two citations in this proceeding be settled for 100% of the assessed proposed penalty, amounting to 

$555. He explained that the gravity involved was serious but that ordinary 

negligence was involved, and that he felt the proposed penalty to be a fair 

one. From the bench, I stated the following: 

I want to state for the record what everyone here should 

know, and that is that a penalty proceeding before the judges 

of the commission is de novo; therefore, I'm not bound by the 

assessed amounts, either upwards or downwards. I have, therefore, reviewed both of these citations and the inspector's 

statement which were attached to the Solicitor's Motion to 

approve settlement. It appears to me that the proposed settlements are substantial and will effectuate the purposes of 

the Act. Accordingly, they are approved, and the operator is 

directed to pay $555.00 (Tr. 3). 

2064 
ORDER 

The operator is ORDERED to pay $555 within 30 days from the date of 

this decision. 

~ \-, ~"' ''°"' r ~~~\\~. Paul Merlin \ 

Assistant Chief Administrative Law Judge 

Distribution: 

Alan Raznick, Esq., Office of the Solicitor, U.S. Department of Labor, 

11071 Federal Building, 450 Golden Gate Avenue - Box 36017, 

San Francisco, CA 94102 (Certified Mail) 

D. Marshall Nelson, Esq., Riverside Cement Company, 610 Newport Center 

Drive, Newport Beach, CA 92660 (Certified Mail) 

Administrator, Metal and Non-metal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

2065 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5209 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. DENV 79-123-PM 

A/O No. 45-00572-05001 

v. 

ACME CONCRETE COMPANY, 

Respondent 

Acme Pit & Plant Mine 

Docket No. DENV 79-124-PM 

A/O No. 45-00659-05001 

Matheson Pit Mine 

DECISION 

Appearances: Marshall Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Monte Geiger, Director, Governmental Services & Safety, 

Inland Empire Chapter of General Contractors, Spokane, 

Washington,· for Respondent. 

Before: Judge Charles C. Moore, Jr. 

It was stipulated at the outset that Respondent has no prior history 

of violation, and that any penalty will not impair its ability to continue 

in business. I find the operator is medium in size and that all violations 

found to have occurred were abated promptly and in good faith. Matters of 

negligence and gravity will be considered with respect to each individual 

citation. 

DOCKET NO. DENV 79-124-PM 

The citation here was not introduced into evidence, but a copy was 

attached to the petition. It is Citation No. 346027 and alleges a violation 

of 30 CFR 56.9-11 in that there were radial cracks in the windshield of a 

front-end loader. The principal impact area was in the right upper corner 

of the windshield, but the radial cracks extended to the area in front of 

the driver and at that point were about 2 inches apart. The standard does 

not specifically prohibit cracked windshields, but it does require that windshields be maintained in good condition and inasmuch as these cracks 

impaired the driver visibility, the window was not being maintained in good 

condition. It was conceded that the cracks were caused by children throwing 

rocks down into the pit and hitting the windshield. 

2066 
The abatement consisted of removing the broken windshield, installing 

a large metal grill work in front of the window space and then replacing the 

glass window. Respondent's Exhibit No. 1 contains two photographs of the 

grill work designed to protect the windshield. While this grill work is considered as satisfactory abatement by MSHA, it is conceded that the grill 

restricts the drivers visibility more than the cracked windshield which was 

considered a violation. In other words, the situation is more hazardous now 

that the ~itation has been abated than it was at the time the citation 

was issued. In the circumstances, I have to consider negligence and gravity 

as extremely small. A nominal penalty of $1 is assessed. 

DOCKET NO. DENV 79-123-PM 

At the outset of the hearing with respect to this docket number, the 

Solicitor's attorney withdrew the following citations: 346017, 346019, 

346021, 346022, and 346023. Those citations are accordingly VACATED. 

Citation No. 346016 alleges a violation of 30 CFR 56.9-22 in that a berm 

was not provided on an outer bank of the elevated roadway to the crushing 

plant feed hopper. The evidence establishes that the road is used for hauling stone to the crusher and that on one side it is elevated about 4 feet 

above the surrounding terrain. On the elevated side, the angle of the bank 

at the edge of the road is approximately 32 degrees from the horizontal. 

While a 4 foot elevation with a 32 degree angle does not seem like a condition a frontend loader would have difficulty in negotiating, these were 

wheeled loaders and it was the inspector's opinion that one could possibly 

turn over if one wheel went over the edge. No witness appeared to dispute 

the inspector's testimony, and I will accordingly find that there was a 

possibility of an injury, in view of the angle and elevation, however, 

together with the fact that the front-end loaders contained roll over protection and seatbelts I think the gravity of the violation was very low. I 

also find a low order of negligence and assess a penalty of $25. 

Citation No. 346018 alleges a violation of 30 CFR 56.9-7 in that an 

unguarded surge conveyor with a walkway alongside was not equipped with an 

emergency stop device. While the regulations define "travelway" there is 

no definition of "walkway" in the regulations. Inasmuch as it is the purpose of the regulations to protect the miners, I am going to consider a 

walkway to mean, a place were a miner could reasonably be expected to walk 

even if he has no job related reason for going to the area in question. I 

believe the area involved in this surge tunnel was a walkway, and for that 

reason, either a guard or a stop cord was required on the conveyor. I find 

there was very little negligence and in the absence of any testimony concerning a pinch point I find the gravity was not high. A penalty of $25 

will be assessed. 

Citation No. 346020 alleges a violation of 30 CFR 56.14-1 in that a 

tail pulley was unguarded. The inspector. testified that a person could be 

injured at the pinch point, but that the structure of the conveyor itself 

guarded three-fourths of the area in question. He seemed to think it unlikely that someone would be injured. It was nevertheless a violation to leave 

a part of the pulley unguarded even though the negligence and gravity are of 

a low order. A penalty of $25 is assessed. 

2067 
Citation Nos. 346024 and 346025 both involve radial cracks in winding 

of equipment as did Citation No. 346027. The facts are similar and the same 

penalty is accordingly assessed, $1 for each citation. 

ORDER 

It is therefore ORDERED that Respondent pay to MSHA, within 30 days, 

a civil penalty in a total amount of $78. 

~~0;~~· 

Distribution: 

Charles c. Moore, Jr. 

Administrative Law Judge 

Marshall Salzman, Esq., Office of the Solicitor, U.S. Department of 

Labor, 450 Golden Gate Avenue, Box 36017, Room 10404 Federal 

Building, San Francisco, California 94102 (Certified Mail) 

Monte Geiger, Director, Governmental Services & Safety, Inland Empire 

Chapter, Association of General Contractors, P. o. Box 30266, 

Terminal Annex, Spokane, Washington 

2068 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CYPRUS INDUSTRIAL MINERAL CORP., 

Applicant 

Application for Review 

v. Docket No. DENV 78-558-M 

SECRETARY OF LABOOt, Order No. 34205 

MINE SAFETY AND HEALTH August 3, 1978 

ADMINISTRATION (MSHA), 

Appearances: 

Before: 

Respondent 

DECISION 

Scott H.~ Dunham, Esq., 0 'Mel veny & Myers, Los Angeles, 

California, for the applicant; 

Thomas E. Korson, Attorney, U.S. Department of Labor, Office 

of the Solicitor, Denver, Colorado, for the respondent. 

Judge Koutras 

Statement of the Proceedings 

This is an action filed by Cyprus Industrial Minerals Corporation 

(Contestant) pursuant to section 107(e)(l) of the Federal Mine Safety and 

Health Act of 1977, 30 v.s.c. § 817(e)(l), seeking review of an imminemt 

danger closure order issued by MSHA inspector Donald K. Everhard on 

August 3, 1978, pursuant to section 107(a) of the Act. The withdrawal 

order, No. 342065, cited a violation of 30 CFR 57.3-2, and the condition or 

practice which the inspector believed constituted an imminent danger warranting closure of the "whole mining area of the Bosa! Ill claim," is 

described as follows on the face of the order: "Dangerous loose rock and 

overburden was present on the north side of drift immediately above the 

working level of the drift. The face and south rib also had not been completely scaled and dangerous loose rocks were observed also." 

In its review petition, contestant asserted that the order was improprly and unlawfully issued because (1) the area which is the subject of the 

order is not a mine within the meaning of the Act and was beyond the jurisdiction of MSHA, and (2) even if the area cited can be construed to be a 

"mine," the operator was one Leonard "Pee Wee" Holmes, an independent contractor who was in fact the "operator" at the time the order issued. 

2069 
Respondent· filed an answer to the review petition on September 7, 1978, 

and moved to dismiss on the ground that contestant failed to include a copy 

of the order with its petition. Applicant filed a response to the motion, 

and by order issued by me on September 21, 1978, respondent's motion to dismiss was denied, and by notice of hearing issued on October 12, 1978, the 

matter was scheduled for a hearing on the merits in Helena, Montana, 

November 17, 1978~ 

On November 6 , 1978, respondent filed a motion for a continuance of 

the hearing on the ground that MSHA was in the process of reviewing its 

enforcement policy with regard to independent contractors and that there was 

a good possibility that in light of this review, the parties would probably 

resolve the matter without the necessity of a hearing on the merits. By 

order issued by me on November 8, 1978, the case was continued, and on 

January 24, 1978, I issued another order directing the parties to advise me 

of the.status of MSHA's policy review concerning independent contractors and 

whether the case should be scheduled for hearing. On February 6, 1979, 

respondent's Arlington, Virginia Solicitor's Office advised me by letter 

that MSHA had not changed its enforcement policy with regard to citing mine 

owners for violations committed by independent contractors and that it did 

not appear that any future policy changes in this regard would be applied 

retroactively. The Solicitor also advised that the order in question was 

still in effect and that a hearing would be required. Accordingly, by 

notice issued April 13, 1979, a hearing was scheduled for Helena, Montana 

on July 17, 1979, and the parties appeared and participated therein. The 

parties waived the filing of written proposed findings and conclusions but 

were afforded an opportunity to present their respective arguments on the 

record at the hearing, and the arguments presented have been considered by 

me in the course of this decision. 

Issues 

1. Whether the area'where the alleged imminent danger was found was a 

mine within the meaning of the Act. 

2. Whether the conditions cited and described by the inspector presented an imminent danger warranting the issuance of a closure order pursuant to section'l07 of the Act. 

3. Whether the mine owner, rather than the independent contractor, 

was the proper party to be served with the closure order in question. 

4. Additional issues raised by the parties are identified and discussed in the course of this decision. 

Stipulations 

The following admissions and stipulations were made by the parties 

(Exhibit JE-1): 

2070 
1. This review proceeding is properly before me pursuant to section 

107 of the Act. 

2. Applicant Cyprus Industrial Minerals (CIM) is an operator of certain mines generally subject to the jurisdiction of the Federal Mine Safety 

and Health Act of 1977, 30 U. S.C. §§ 801 et ~· (the "Act"), and MSHA is 

the governmental agency responsible for administration and enforcement of 

the Act. 

3. Leonard "Pee Wee" Holmes is an independent exploration contractor 

who contracted with CIM to perform work for CIM on property owned by CIM 

according to his own methods and without being subject to the control of 

CIM except as to the final result of his work. Holmes contracted with CIM 

to establish a portal and drive two exploration drifts for CIM, one at its 

Snow White Mining Claim and the other at its Bosal #1 Mining Claim. CIM 

specified the work it wished performed and the geographical area wherein the 

work was to be performed but Holmes was solely responsible for achieving the 

results desired by CIM. The only work being performed was for assessment. 

There was no production at these sites. 

4. In performing the work for CIM, Holmes furnished all the equipment, 

manpower and supplies. CIM did not supervise or otherwise direct Holmes in 

his work. He exercised complete control over the area in which he was working. He was not an agent or an employee of CIM. The completed work, however, inured to the benefit of CIM. 

5. Holmes has worked as an independent exploration contractor for more 

than 10 years and has worked in underground and aboveground mining of 

minerals for approximately 35 years. 

6. Raymond Pederson was an employee of Holmes. He was not an agent or 

enployee of CIM. · Holmes hired Pederson to work with him to perform the work 

Holmes contracted to do for CIM. Pederson had worked in aboveground and 

underground mining of minerals for approximately 18 years. 

7. The alleged violation of the Act cited in Order No. 342065 occurred 

during the course of work performed by the independent contractor, Holmes, 

and his employee Pederson. None of the employees of CIM were endangered by 

or involved in the occurrence which resulted in Order No. 342065. 

8. Holmes is not in any way affiliated with CIM other than pursuant 

to the Agreement for Services executed by Holmes and CIM which called for 

Holmes to do certain construction work. The Agreement for Services provided 

that the relationship between CIM and Holmes was to be that of owner and 

independent contractor. 

9. By Thursday, July 27, 1978, Holmes and Pederson completed without 

incident the portal and exploration drift at CIM's Snow White Mining Claim. 

The following day, Friday, July 28, 1978, Holmes and Pederson began working 

to establish a portal and exploration drift at CIM's Bosal #1 Mining Claim. 

2071 
10. On Wednesday, August 2, 1978, Holmes and Pederson began preparations for setting posts for the portal at the Bosal #1 Mining Claim. They 

proceeded to clear away the muck that had collected at the base of the 

portal as a result of barring and scaling the face of the hill. Also on 

Wednesday, Holmes and Pederson used a frontloader CAT 988 to clear the 

overburden above the portal. They also scaled from the top of the hill as 

well as from the ground and barred and scaled the brow. 

11. On Thursday, AUgust 3, 1978, Holmes and Pederson began working 

around 8 a.m. They did more barring and scaling of the face of the hill in 

preparation for setting posts. They completed the barring and scaling to 

their satisfaction and were in the process of setting the posts when rocks 

suddenly broke loose from the face of the drift and struck Pederson, crushing him. Pederson was pronounced dead at the scene. 

12. On August 3, 1978, MSHA inspector Donald K. Everhard served 

Order No. 342065 to Donald F. Kennedy of CIM. Order No. 342065 was issued 

pursuant to Secretarial Order No. 2977. Mr. Everhard believed that the 

barring and scaling had not been completed satisfactorily because of the 

presence of loose rock.~ 

Testimony and Evidence Adduced by the Respondent MSHA 

MSHA inspector Donald K. Everhard testified that he has been associated 

with the mining industry since 1948, and with MESA and MSHA as a mine 

inspector for the past 5-1/2 years. He has also worked as a contract miner 

and is familiar with the hazards of loose rock, since he has observed loose 

rock fall and has attended classes dealing with the subject. He went to the 

job site in question after receiving a phone call from his office advising 

him that there had been a fatality there. He arrived there at about 

4:45 p.m., and CIM engineer Don Kennedy, State mine inspector Bill Gilbert, 

and contractor Leonard Holmes were there when he arrived. Mr. Holmes 

explained what had taken place, and they examined the site from a safe distance. From the top right-hand edge of the site which had been cleared of 

loose rock, he observed loose rock in the face of the drift, some smaller 

loose rock on the right-hand side, and a high overburden on the left side 

(Tr. 24-28). 

Inspector Everhard identified a copy of the order he issued and confirmed that it refers to section 57.3-22 and he indicated that is what he 

intended to cite (Tr. 29). · He issued the imminent danger order after 

observing hanging loose rock in the center of the drift which was approximately 18 feet high, and hanging loose rock on the right-side of the drift. 

Although loose overburden had been cleared from the top edge of the face on 

the right-hand side back about 10 to 12 feet, the left~hand side had loose 

overburden above the solid rock which had not been cleared away for some 

25 feet. The rock was overhanging loose rock which could have slipped at 

anytime. Had work proceeded as previously done on the same schedule an 

accident could have occurred. He believed the loose rock on the right hand 

side should have been rebarred and rescaled and the high overburden on the 

left should have been completely removed (Tr. 29-32). 

2072 
On cross-examination, Mr. Everhard indicated that he prepared his 

"inspector's statements" no later than August 5, and that he did make reference to a violation of section 57.3-2 in the report. The loose rock he 

observed hanging on the face of the drift was in the same approximate area 

as the rock which fell from close to the center of the drift. He recalled 

the accident investigation report of August 3, 1978, and indicated that he 

prepared a rough drawing of the accident scene. The victim, Mr. Pederson, 

was standing on the right side of.the drift and Mr. Holmes on the left side. 

The rock which struck Mr. Pederson fell from somewhere near the center of 

the drift. He took no pictures of the job site once he arrived there 

because he had no camera, and he was not at the site prior to the accident. 

He was told by Mr. Holmes that barring and scaling of the walls had taken 

place prior to the accident and he did observe barring and scaling tools in 

the area, and he had no reason to believe that it was not done (Tr. 33-40). 

Inspector Everhard testified that he issued the order to the operator, 

Cyprus Industrial Mineral Company, rather than Mr. Holmes because he was 

verbally instructed to do so by his supervisor who advised him that this 

was the policy (Tr. 40). He did not question Mr. Holmes regarding who was 

controlling or supervising the operation on the day in question and he was 

aware of the fact that'the accident victim was employed by Mr. Holmes and 

had no affiliation with CIM (Tr. 41). 

On redirect, Mr. Everhard indicated that while scaling and barring of 

rock had been done when he arrived at the job site, it was not complete 

because he still observed loose rock in the face area and the sides and it 

was not adequately supported. He cited 57.3-22 because loose ground should 

have been removed and adequately supported to eliminate the hazard of loose 

rock. The operator's nearest mine is a mile and a half from the job site in 

question. He considered the job site to be an underground mining operation 

because there was a drift into the side of the mountain and underneath the 

ground (Tr. 4 7). 

In response to questions from the bench, Mr. Everhard testified that he 

was told that only two men, namely Mr. Pederson and Mr. Holmes, were working 

at the operation prior to the accident, and that this was the usual number 

of people working there. Neither Mr. Everhard nor MSHA had previously 

inspected the site at anytime. The work began there sometime in mid-July 

1978. Prior to the accident of August 3, the drift had been driven some 

18 to 21 feet. The men were establishing a drift under the brow into the 

side of the mountain. After establishing the brow, they were to drive in 

another 20 to 23 feet underground. The overburden and loose material was 

removed from the drift opening by a front end loader, and a jack-leg mining 

machine which was used to drill holes was also used and the material was 

blasted out. A compressor was also present to produce air to run the jackleg machine, and picks, shovels, and bars were also there. The drift was 

unsupported and it was an active working (Tr. 47-52). 

On recross Mr. Everhard stated that he was told a half a ton of loose 

rock covered the accident victim and that he was struck by a large rock. 

2073 
Mr. Everhard never received a copy of the contract between Mr. Holmes and 

the operator, and he indicated that his description of the drilling and 

blasting which was taking place was standard procedure for cutting a drift, 

and while he observed a post or two lying alongside the walls, no support 

timber was installed, and the two men were starting to install it at the 

time of the accident (Tr. 56-57). 

Applicant's Testimony and Evidence 

Donald F. Kennedy, production manager, CIM, Beaverhead Mine, testified 

that 21 employees work at the mine and that it is an open-pit operation 

mining talc, and is located about a mile and a half from the site of the 

accident. No mining was taking place at that site and no employees of the 

operator were there performing any work. He hired Mr. Holmes to do the work 

there because someone was needed with experience driving underground workings for assessment work on the mining claims, and the operator had no one 

with that experience. Mr. Holmes was recommended as someone who had done 

this type of work and the reports on him were good. He was at the site on 

one occasion prior to the accident for the purpose of showing Mr. Holmes the 

second site where another adit was to be driven. The contract with 

Mr. Holmes called for rhe driving of two adits, and Mr. Kennedy exercised 

no control or supervision over the work performed by Mr. Holmes. The purpose of the exploration drift was to determine the width of any talc in the 

area. At the time the drift was opened he did not intend to use it for 

mining, and it was possible that the portal would have been so used but this 

could not be determined until they knew what was found (Tr. 69-73). 

On cross-examination, Mr. Kennedy testified that had the drift being 

developed by Mr. Holmes produced substantial indications of the existence 

of valuable minerals further steps would be taken to mine the minerals, 

drilling would commence, and an open-pit mine would have been developed. 

Mr. Holmes' project was'to last for some 2 or 3 weeks, and his work was not 

expected to exceed 3 weeks. In fact, it.took him 2 weeks to drive the 

drift. Mr. Holmes was instructed to complete another drift first, and then 

start on the Basal work·(Tr. 73-77). Mr. Kennedy conceded that his company 

generally could have trained its own personnel to perform the work done by 

Mr. Holmes, but simply drilling a bore hole would not result in mineral 

samples as large as those disclosed by developing a drift (Tr. 79). At the 

time of the accident, he was the company official responsible for safety 

matters (Tr. 85). In open-pit mining, problems are encountered with loose 

rock (Tr. 89). 

On redirect Mr. Kennedy stated that one of the considerations in hiring 

Mr. Holmes to develop the drift in question was that he had prior experience 

in this type of work, and the company opted not to do the work because of its 

lack of expertise (Tr. 90). In response to bench questions, he testified 

that no mining is presently taking place on the Snow White Claim because no 

minerals of value were discovered and no mining is taking place at the site 

of the withdrawal order and no equipment is located there (Tr. 90-91). 

Although Mr. Holmes had not as yet developed an actual drift at the time of 

2074 
the accident, a trench was developed into the side of the hill. Mr. Kennedy 

viewed the conditions cited in the withdrawal order and conceded that some 

surface loose alluvium material was present on the left side up on the 

surface (Tr. 93). He surmised that the small amount of material which fell 

on the victim resulted in the fatality, and from all appearances of the fatality area he did not feel that a danger was present (Tr. 95). He believed 

that the remaining material which was located some 25 feet up the high face 

after the accident was small loose alluvium material consisting of rock and 

dirt (Tr. 95). If he were the inspector he would have issued a citation in 

order to clear some of the loose materials, but he would not have considered 

the conditions an imminent danger (Tr. 97). Mr. Holmes was developing a 

portal, and a portal is the initial entry into the underground drift (Tr. 

98). The drift established by Mr. Holmes at the Bosal claim was identical 

to the one established at the Snow 1..fuite Claim (Tr. 98, Exh. A-1). 

On recross, Mr. Kennedy testified that he visited the Bosal claim 

earlier prior to the accident and he did so to show Mr·. Holmes the approximate direction in which to drive the drift and Mr. Holmes intended to establish a brow at the job site in question (Tr. 100). 

Leonard Holmes testified that he owns a bar and has also engaged in 

contract mining for some 25 years, including experience in driving exploration drifts such as the one he was driving at the Bosa! claim, and that he 

has never had an accident. He contracted with CIM to drive two exploration 

drifts and he identified a copy of the contract (Joint Exh. 3). The accident victim, Ray Pederson, worked for him previously in 1975 performing 

drift work, cleaning out old raises,and performing ventilation work. He paid 

Mr. Pederson and Mr. Pederson had some 18 years of experience in mining, 

including the driving of many exploration drifts. He and Mr. Pederson 

worked on drifts at Cyprus' Snow White claim, including timbering work. 

They also intended to u~e timbers at the Bosal drift work. He described the 

work being performed at the time of the accident, including drilling and 

cutting preparations to establish a portal, and the cleaning of the sides of 

the brow in order to establish room for the installation of timbers. During 

this process, he borrowed a piece of equipment from CIM to help clean off 

the brow. He also described the work performed by him in attempting to clear 

an area to facilitate the installation of support timbers (Tr. 103-109). 

Mr. Holmes described how the accident occurred and indicated that a 

"slip" was encountered and he described it as "a greasy piece of ground 

that's under your rock." One of the walls "looked bad," but he indicated 

that it was a granite formation which interlocked with other rock and once 

this occurred "you didn't have to worry" because "the rock was interlocked." 

Prior to any attempts to set posts, material was barred and scaled from the 

foot of the rib wall, and the "cat" borrowed from CIM was also used for 

barring and scaling. No loose rock was observed at the foot of the wall and 

rib prior to the setting of the posts and he believed "we were safe." He 

identified the area on Exhibit A-2, labeled "Foot wall rib" where the 

accident victim was standing holding the posts when the rock fell and struck 

2075 
him. Mr. Holmes was standing to the left and was not struck by any rock. 

The base of the drift at the time was 10 feet wide and the face was some 

22 feet from where they could establish a portal and the timbering was from 

the face back. The ground conditions were examined on a daily basis while 

the work was being performed (Tr. 109-115). 

Mr. Holmes testified that based on the existing conditions immediately 

before the accident, he did not believe that an imminent danger existed, 

and that after the rock fell and struck Mr. Pederson he did not intend to 

continue setting posts before doing any other work. After Mr. Pederson was 

killed he intended to do nothing but leave the area. Assuming he went back 

the next day, he would have cleaned up the area and started ·again, and this 

work would have included additional barring and scaling since once the rock 

fell it would have "loosened up something else again." Once timbering 

begins, barring, scaling, and cleaning out the muck would have been the 

safest way to proceed. In his opinion, there was no way to bar and scale to 

eliminate the hazard which existed at the time the rock fell and struck 

Mr. Pederson. He had encountered loose rocks slips in the past and indicated that "you will run into that anytime you are mining." The only way to 

prevent rock slippage is to timber and he was in the process of doing that 

at the time of the accident. The purpose of setting the timbers was to 

establish a brow underneath the face of the drift in order to support it. 

Mr. Holmes defined an imminent danger" as "something that you could work 

under or around if you wanted to take a chance." In his opinion, after the 

accident occurred the conditions which existed did not present an imminent 

danger where sbmeone would be injured or killed if they continued work in 

that area. The rock which fell came from the hanging wall on the foot wall 

side of the area where work was being performed. Mr. Holmes stated he was 

responsible for the work being performed at the accident site because it was 

his contract (Tr. 115-120). 

On cross-examination, Mr. Holmes indicated that he was paid by CIM for 

the work performed on the· Snow White claim, but has not been paid for the 

work performed at the Basal site (Tr. 121). Mr. Holmes denied that there 

was loose ground at and above the face at the time of the accident, but that 

4 tons of rock struck Mr. Pederson at one time and he was not struck by a 

single rock although the material came out in one chunk. The rocks fell 

from approximately 4 to 6 feet above where he was holding the posts (Tr. 

128). The slip of ground which caused the fall occurred 4 feet back and 

2 feet into the face and they could not see it. They would not have been 

working underground had they observed the slip (Tr. 129-130). The "cat 988" 

which was used was owned by CIM since he did not own one (Tr. 131). Regarding the existence of any loose rock on the hanging wall side before the 

accident, Mr. Holmes stated that there was "none that was of any bother to 

us," but that overburden was present above the hanging wall and it could 

have fallen in at any time because "when you are mining it could happen" 

(Tr. 138). 

2076 
On redirect and in answer to a question as to whether the presence of 

the overburden on the left side hanging wall presented an imminent danger, 

Mr. Holmes stated "Not if they are miners, no, that hanging wall wouldn't 

have bothered them one bit" (Tr. 139). 

William H. Gilbert, testified that he is employed as a Montana state 

mining inspector with 30 years prior mining experience in underground mining 

and some surface mining experience. He was present at the mine site immediately after the accident and examined the job site immediately after the 

accident. He took some measurements and some photographs. In his view, the 

prevailing conditions after the accident did not present an imminent danger, 

but the area would have had to been barred down again. He is authorized 

under state mining laws to issue imminent danger withdrawal orders but did 

not issue one in this instance because Mr. Kennedy told him that he decided 

to stop the project and Mr. Holmes was going to move all of his equipment 

out. In view of this, he saw no point in issuing any order and he did not 

feel that the conditions at that time justified an imminent danger order and 

he would not have issued one (Tr. 143-144). 

On cross-examination, Mr. Gilbert stated that he would not have issued 

an imminent danger order because he "didn't think the conditions were that 

bad11 (Tr. 145). He knew that inspector Everhard had issued a citation, but 

did not know it was an order, and he first learned that an imminent danger 

order had issued the day of the hearing (Tr. 146). Mr. Holmes would have 

had to bar down the muck in order to work safely in the future (Tr. 148). 

In response to bench questions, Mr. Gilbert stated that under state 

law "imminent danger" is not defined. It simply states that if an imminent 

danger exists a withdrawal may be issued and it remains in effect until the 

condition is abated (Tr. 151-152). Regarding the conditions which prevailed 

after the accident, he testified that the ground, like all surface ground, 

was shattered and loose'(Tr. 153-154). 

Inspector Everhard was recalled in rebuttal and testified further as to 

the conditions which prevailed after the accident. Loos~, unstable overburden ground was present and it could have slipped off the top of the hanging wall and slipped into the work site onto the floor of the drift (Tr. 

158). On cross-examination, Mr. Everhardtestified as to how supporting 

timbers should have been installed and that a 22 foot area had been taken 

out (Tr. 164). He did not cite the operator for failure to examine the face 

and rib and has no way of knowing whether this was done or not (Tr. 166). 

Mr. Holmes was recalled and testified that no CIM employee operated the 

borrowed Cat 988 but that Mr. Pederson did (Tr. 169). 

Arguments Presented by the Parties 

Respondent MSHA 

Respondent argues that Inspector Everhard's concern about the loose 

material which remained on the hanging wall side of the overburden justified 

2077 
his imminent danger order and that the opinion of the state mine inspector 

regarding the presence of an imminent danger should be given no weight. 

Further, respondent argues that the testimony establishes that additional 

work had to be performed before any mining could continue after the fatal 

accident and that this factor also supports the inspector's order. As for 

the independent contractor question, respondent asserts that the record 

establishes that the work performed by Mr. Holmes at CIM's Snow White and 

Bosal claims indicates that it was of very short duration, that Mr. Holmes 

performs work at several locations and in effect has a very limited presence 

on the mine site, whereas CIM has an ongoing operation and could have 

performed the work itself by training its personnel• Under the circumstances, respondent submits that MSHA's discretionary policy of citing mine 

operators rather than contractors is a good policy which should be affirmed. 

With regard to the question as to whether the work being performed by 

Mr. Holmes constituted "mining" within the meaning of the Act, respondent 

argues that section 3(h)(l)(c) of the Act which defines a mine to include 

"shaft, excavation, or tunnel" indicates that the work being performed by 

Mr. Holmes justifies a finding that the work site was in fact a "working 

to be used in the work 0£ extracting minerals" and that it is covered by the 

Act (Tr. 171-179). 

Applicant 

Applicant argues that the primary issue in this case is the independent contractor question and CIM is not the proper party in the proceedings. 

Counsel argues that the parties have stipulated that Mr. Holmes is an independent contractor and that CIM exercised no control or authority over the 

work being performed by Mr. Holmes other than to instruct him as to the 

results which should come from his work. Although counsel conceded that 

CIM lent Mr. Holmes a bulldozer, it was operated by Mr. Holmes' employee 

Pederson and not by any C~M employees. Based on the Monterey Coal Company 

decision, counsel asserts that it is clear that CIM is not the proper party 

in this proceeding and that Mr. Holmes, as an indispensable party, should have 

been made a party and should be responsible for the imminent danger order. 

As for the suggestion by MSHA that CIM train its own personnel to perform 

the work done by Mr. Holmes, counsel argues that there is no requirement 

under the law that it do so and that the stipulation is dispositive of this 

question. Finally, counsel argues that MSHA's policy of citing mine operators rather that contractors, without any effort to ascertain such circumstances as control, operator expertise, safety considerations, etc., is 

arbitrary and without legal foundation. 

With regard to whether the work site in question may be considered a 

"mine site" covered by the Act, counsel argued that the work being performed by Mr. Holmes was clearly work being performed in order to determine 

the presence of an ore body worthy of being mined. Counsel conceded that 

there was an ore body present, but argues that the work by Mr. Holmes was 

exploration and assessment work and that the portal being established was 

2078 
not intended to be used for mining purposes. Rather, the ore would be 

mined by strip mining. Since the work was preliminary to any actual mining, 

counsel suggests that MSHA had no jurisdiction to cite violations. 

With regard to the existence of any imminent danger, counsel relies on 

the testimony of state mining inspector Gilbert who was of the opinion that 

the conditions presented did not justify the issuance of such an order, and 

that at the time of Mr. Everhard's arrival on the scene, all work had 

ceased, Mr. Holmes had left the scene, and the deceased accident victim had 

been removed. Further, counsel argues that Mr. Holmes testified that in the 

event further work would have proceeded after the rock fall, the first thing 

he would do would be to clear the area out and scale and bar down the materials which resulted from the apparent slip in the rock. In addition, 

counsel points to the fact that Mr. Holmes observed no rock in the area which 

presented any danger and that he believed the area was safe to work in 

(Tr. 179-187). 

Findings and Conclusions 

Were the activities and work being performed by Mr. Holmes at the mine 

site in question mining~operations covered by the Act, and did MSHA have 

jurisdiction to issue citations and orders? 

The Federal Metal and Nonmetallic Mine Safety Act of 1966, 30 u.s.c. 

§ 721 et ~·, defined the term "mine" as: 

(1) - an area of land from which minerals other than coal 

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

form, are extracted with workers underground, (2) private 

ways and roads appurtenant to such area, and. (3) land, excavations, underground passageways, and workings, structures, 

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

the surf ace or underground, used in the work of extracting 

such minerals other than coal or lignite from their natural 

deposits in no~liquid form, or if in liquid form, with 

workers underground, or used in the milling of such minerals, 

except that with respect to protection against radiation 

hazards such term shall not include property used in the 

milling of source material as defined in the Atomic Energy 

Act of 1954, as amended. [Emphasis added.] 

The Metal and Nonmetallic Mine Safety Act was repealed upon enactment 

of the Federal Mine Safety and Health Act of 1977, P.L. 95-164, November 9, 

1977. Section 3(h)(l) of this law defines a "coal or other mine" as: 

(A) an area of land from which minerals are extracted 

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

workers underground, (B) private ways and roads appurtenant 

to such area, and (C) lands, excavations, underground passageways, shafts slopes, tunnels and workings, structures, 

2079 
facilities, equipment, machines, tools, or other property 

including impoundments, retention dams, and tailings ponds, 

on the surface or underground, used in, or to be used in; or 

resulting from, the work of extracting such minerals from 

their natural deposits in nonliquid form, or if in liquid 

form, with workers underground, or used in, or to be used in, 

tlie milling of such minerals, or the work of preparing coal 

or other minerals, and includes custom coal· preparation 

facilities. In making a determination of what constitutes 

mineral milling for purposes of this Act, the Secretary shall 

give due consideration to the convenience of administration 

resulting from the delegation to one Assistant Secretary of 

all authority with respect to the health and safety of miners 

employed at one physical establishment; * * *· [Emphasis 

added.] 

Section 104(a) of the Act provides as follows: 

(a) 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 violation 

with reasonable promptness shall not be a jurisdictional 

prerequisite to the enforcement of any provision of this Act. 

Section 107(a), provides as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized 

representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of the 

area of such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine to cause 

all persons, except those referred to in section 104(c), to 

be withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary 

determines that such imminent danger and the conditions or 

practices which caused such imminent danger no longer exists. 

The issuance of an order under this subsection shall not 

preclude the issuance of a citation under sectton 104 or the 

proposing of a penalty under section 110. 

2080 
Applicant has stipulated that it is a mine operator covered generally 

by the Act. With. regard to the surface and underground activities and work 

conducted by Mr. Holmes at the No. 1 Bosal Claim on contestant's mine 

property, the testimony and evidence adduced here reflects that Mr. Holmes' 

work was in fact work normally associated with a talc mining operation. 

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

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

timbering, bulldozing overburden, barring and scaling of loose rock, and 

attempts at establishing a brow and a portal for the express purpose of 

extracting minerals. Similar work had previously been completed by 

Mr. Holmes at applicant's Snow White Claim, and it seems clear that 

Mr. Holmes is in fact an experienced mining man of many years experience in 

driving drifts. Further, applicant conceded the existence of a mineable 

ore body and that Mr. Holmes' work was directly related to the eventual 

mining of that ore; and, by the very terms of the contract (JE-3) 

Mr. Holmes agreed to establish a portal and to drive an exploration drift. 

Under these circumstances, I conclude and find that Mr. Holmes' work at the 

time of the accident were in fact mining activities within the meaning of 

the Act, that the work being performed at the Bosal Claim was work at a 

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

regulate those activiti~s through the applicable mandatory safety standards 

promulgated under the Act. Applicant's arguments to the contrary are 

rejected. 

Were the conditions described by the inspector an "imminent danger, 

and if so, was the withdrawal order properly issued? 

"Imminent danger" is defined in section 3(j) of the Act, 30 u.s.c. 

§ 802(j) as: "The existence of any condition or practice in a coal or other 

mine which could reasonably be expected to cause death or serious physical 

harm before such condition or practice can be abated." 

The legislative history of the Act brings out relevant testimony with 

regard to this question. The conference committee report, section-bysection analysis of the 1969 Act has the following to say about imminent 

danger: 

[T]he definition of an "imminent danger" is broadened from 

that in the 1952 Act in recognition of the need to be concerned with any condition or practice, naturally or otherwise 

caused, which may lead to sudden death or injury before the 

danger can be abated. It is not limited to just disastrous 

type accidents, as in the past, but all accidents which could 

be fatal or nonfatal to one or more persons before abatement 

of the condition or practice can be achieved. 

And, at pg. 89 of the report: 

The concept of an imminent danger as it has evolved in 

this industry is that the situation is so serious that the 

2081 
miners must be removed from the danger forthwith when the 

danger is discovered * * *· The serioiusness of the situation demands such immediate action. The first concern is 

the danger to the miner. Delays, even of a few minutes may 

be critical or disastrous. 

The former Interior Board of Mine Operations Appeals has held that an 

imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner or 

normal mining operations are permitted to proceed in the area before the 

dangerous condition is eliminated. The dangerous condition cannot be 

divorced from normal work activity. Eastern Associated Coal Corp. v. 

Interior Board of Mine Operations Appeals, et al., 491 F.2d 277, 278 

(4th Cir. 1974). The test of imminence is objective and the inspector's 

subjective opinion need not be taken at face value. The question is whether 

a reasonable man, with the inspector's education and experience, would conclude that the facts indicate an impending accident or disaster, likely to 

occur at any moment, but not necessarily immediately. Freeman Coal Mining 

Corporation, 2 IBMA 197, 212 (1973), aff'd, Freeman Coal Mining Company v. 

Interior Board of Mine Operations Appeals, et al., 504 F.2d 741 (7th Cir. 

1974). The foregoing principles were reaffirmed in Old Ben Coal Corporation 

v. Interior Board of Mine Operations Appeals, et al., 523 F.2d 25 (7th Cir. 

1975), and in this case the court phrased the test for determining an 

imminent danger as follows: 

[W]ould a reasonable man, given a qualified inspector's education and experience, conclude that the facts indicate an 

impending accident or disaster, threatening to kill or to 

cause serious physical harm, likely to occur at any moment, 

but not necessarily inim.ediately? The uncertainty must be of 

a nature that would induce a reasonable man to estimate that, 

if normal operations designed to extract coal in the disputed 

area proceeded, it is at least just as probable as not that 

the feared accident or disaster would occur before elimination of the danger.· 

In a proceeding concerning an imminent danger order, the burden of 

proof lies with the applicant, and the applicant must show by a preponderance of the evidence that imminent danger did not exist. Lucas Coal 

Company, 1 IBMA 138 (1972); Carbon Fuel Company, 2 IBMA 43 (1973); Freeman 

Coal Mining Corporation, 2 .IBMA 197 (1973). However, since withdrawal 

orders are "sanctions" within the meaning of ~ection 7(d) of the Administrative Procedure Act (5 u.s.c. § 556(d) (1970)), and may be imposed only 

if the government. produces reliable, probative and substantial evidence 

which establishes a prima facie case, MSHA must bear the burden of establishing a prima facie case. It should be noted that the obligation of 

establishing a prima facie case is not the same as bearing the burden of 

proof. That is, although the applicant bears the ultimate burden of proof 

in a proceeding involving an imminent danger withdrawal order, MSHA must 

still make out a prima facie case. Thus, the order is properly vacated 

2082 
where the contestant proves by a preponderance of the evidence that an 

imminent danger was not present when the order was issued. See: Lucas Coal 

Company, supra; Carbon Fuel Company, 2 IBMA 43 (1973); Freeman-coal Mining 

Corporation, supra; Zeigler Coal Company, 4 IBMA 88, 82 I.D. 111 (1975); 

Quarto Mining Company and Nacco Mining Company, 3 IBMA.199, 81 I.D. 328, 

(1973-1974); Kings Station Coal Corporation, 3 IBMA 322 81 I.D. 562 (1974). 

At the hearing, MSHA's counsel took exception to my ruling that he 

should proceed first and establish a prima facie case (Tr. 17-20). MSHA's 

exception is rejected and my prior ruling made at the hearing is hereby 

reaffirmed. 

I am not persuaded by applicant's argument that state mining inspector 

Gilbert did not believe that the conditions which existed did not constitute 

an imminent danger and that he would not have issued a withdrawal order under 

state law. It is clear from the record here that the state definition of an 

"imminent danger" is not the same as that set forth under the Federal law in 

question, and the fact that mining activities had ceased is irrelevant. 

Mr. Gilbert was obviously satisfied with the fact that all mining had ceased 

after the accident and order was issued and I believe that this fact served 

as the basis for his opinion that he would not have issued an imminent danger order. However, he candidly admitted that additional work of scaling 

and barring would still have to be done before any mining could continue 

after the accident, and I find his testimony that the prevailing conditions 

after the accident were "not that bad" to be somewhat equivocal. The critical question presented is not what Mr. Gilbert would have done, nor whether 

Mr. Everhard should have taken some other course of action instead of 

issuing an imminent danger withdrawal order, but rather, whether his action 

was justified by the circumstances presented. See Eastern Associated Coal 

Corporation, 2 IBMA 128, 173 (1973), where the former Interior Board of Mine 

Operations Appeals stated that "[W]e are not called upon here to decide 

whether the Inspector chose the most appropriate of several alternatives, 

but rather, we are called .upon to decide whether the action he did take was 

a proper and lawful exercise of authority under the Act." Further, the fact 

that all mining activities had ceased and Mr. Holmes had withdrawn both 

himself and his. equipment from the accident scene is likewise irrelevant. 

As pointed out by the Board of Mine Operations Appeals in the cases of UMWA, 

District #31, 1 IBMA 31 (1971), and The Valley Camp Coal Company, 1 IBMA 243 

(1972), the effect of an order of withdrawal not only takes the miner or 

miners out of the area of the dangerous condition, but also keeps them out 

until the danger has been eliminated. In the UMWA case, the Board stated: 

* * * an Order of Withdrawal is more extensive that the mere 

withdrawal of miners--it also confers jurisdiction on the 

Bureau to prohibit reentry until an authorized representative 

of the Secretary determines than an imminent danger no longer 

exists * * *· Thus the purpose of a withdrawal order is not 

only to remove the miners but also to insure that they remain 

withdrawn until the conditions or dangers have been eliminated. Regardless of the sequence of events of the method by 

2083 
which the miners were originally withdrawn, a mine, or section thereof, is officially closed upon the issuance of an 

order pursuant to section 104. 

Although Mr. Kennedy did not believe that an imminent danger existed 

after the accident occurred, he admitted that loose alluvium materials 

consisting of rock and dirt were still present some 25 feet up the high face 

of the area in question, and that if he were the inspector he would issue 

a citation requiring the materials to be cleaned up. Further, while 

Mr. Kennedy testified that a small amount of loose materials and rock fell 

on the accident victim, Mr. Holmes, who was present and an eyewitness to the 

fall, testified that approximately 4 tons of materials fell on the victim 

and that it came from the hanging wall side of the area where the work was 

being perfon:ied. He attributed the fall of materials, including "chunks" of 

rock, from a slip of the ground which he believed occurred some 4 feet back 

and above where the victim was standing attempting to install some posts. 

Mr. Holmes also testified that the slip was undetected and he candidly 

admitted that he and the victim would not have been working in the area had 

they known about the slip of ground. Further, Mr. Holmes admitted to the 

existence of overburden, including loose rocks, on the hanging side of the 

wall prior to the accident and while he dismissed it as something that did 

not "bother" him or would be of no concern to miners, he candidly admitted that 

the overburden could have fallen at any time because anything can happen 

when one is engaged in mining activities. It seems to me that after the 

slip of ground, which was not detected, and which apparently caused the fall 

of rocks and other materials which killed and covered up the victim on the 

day in question, that it was altogether likely that given the same circumstances after the accident, another slip could occur and again cause another 

fatality once the work was continued. The fact that additional barring and 

scaling would have again been accomplished before beginning work again a 

second time would not, ~n the circumstances here presented, insure that 

another slip would not occur. Barring and scaling had been previously done 

by Mr. Holmes, but that did not prevent the undetected slip of ground which 

caused the fatality. 

Inspector Everhard expressed concern over the existence of loose, 

unstable overburden and rocks, and overhanging loose rock located up an 

17 foot high drift and above the area where work had ceased after the fatal 

accident. He also expressed concern over the fact that he did not believe 

that the drift area where the work was being performed at the time of the 

accident had been adequately supported to prevent loose rocks and materials 

from falling. He was concerned over the fact that had Mr. Holmes continued 

work after the accident, following the same mining procedures which were 

described to him at the time of the accident, another fall could occur as a 

result of further ground slippage due to the loose materials present, and 

that if this occurred the slip would have fallen into the area where work 

would have been performed. In these circumstances, I conclude and find that 

Inspector Everhard acted properly in issuing the order and that the conditions which were present as described in his order presented an imminently 

2084 
dangerous situation that could reasonably be expected to result in serious 

injury or death before the conditions could be abated and that normal mining 

activities could not continue or proceed until those conditions were abated. 

Was the imminent danger order properly served on the mine owneroperator? 

Applicant argues that the imminent danger order here was inappropriately served on CL~, the mine owner, and that it should have been served on 

Independent Contractor Leonard "Peewee" Holmes. In support of this argument, 

contestant argues that the parties have stipulated that Mr. Holmes, as an 

independent contractor, was performing contract work· for CIM, and that 

Mr. Holmes is an indispensable party since he was the person who was operating and in control of the "mine" at the time the order issued and that CIM 

exercised no control or direction over the work being performed by Mr. Holmes 

at the job site (Tr. 5-8). 

Respondent MSHA's position is that the Secretary has discretion as to 

which mine "operator" to cite, and that in this case, in the exercise of his 

discretion, the Secretary decided to cite CIM as the owner-operator of the 

mine (Tr. 13-16). Further, it is clear from Inspector's Everhard testimony 

that although he was aware of the fact that the accident victim was employed 

by Mr. Holmes rather than CIM, and did not inquire of Mr. Holmes as to who 

was supervising and directing the work at the scene of the accident, he 

issued the order to Cyprus because his supervisor instructed him that this 

was MSHA's enforcement policy (Tr. 40-41). It is further clear to me that 

although MSHA's counsel attempted to make a record concerning the factual 

basis for the issuance of the order, i.e., supervision, direction, continuing presence on the mine, borrowed equipment, etc., that at the time the 

order issued on August 3, 1978, the inspector was merely following MSHA's 

enforcement policy of citing only the owner-operator and not the independent 

contractor. As a matter of fact, MSHA stipulated that the order was issued 

in compliance with Interior Secretarial Order 2977, a.nd I note that the 

reason for the delays in this proceeding is the fact that MSHA initially 

sought a continuance on November 17, 1978, on the ground that it was at that 

time reviewing its enforcement policy regarding independent contractors and 

the argument was then made that the review may resolve this controversy 

without the necessity of a hearing. Subsequently, on February 6, 1979, MSHA 

advised that no changes were made in its enforcement policy and the case 

proceeded to hearing. 

During the course of the argument, MSHA's counsel stated that the 

Secretary's decision to issue the order against the mine owner was based on 

a "matter of law and policy," and the fact that a contractor did not have a 

Mine Identification Number was part of the "mix" or considerations that 

goes to that policy determination (Tr. 83-84). When asked about the status 

of any proposed independent contractor guidelines or regulations, counsel 

stated that as of the hearing (August 3, 1979), none were promulgated but 

"it is hoped that in the near future there will be issued a proposed regulation on that subject for public comment" (Tr. 84). Counsel's position was 

succintly stated as follows at page 14 of the transcript: 

2085 
On the independent contractor issue, it is our position 

that the statute with its definition of operator as including 

independent contractors gives the Department of Labor the 

discretion to issue citations to operators for violations 

committed by their independent contractors. We think that is 

a position which the Congress intended. We think that we 

have the discretion to either issue the citation to the operator or to the independent contractor. We have exercised our 

discretion here to issue the citation to the operator, and we 

think essentially that that forecloses the issue. 

And, at PP• 174-178: 

On the independent-contractor issue, I submit that we 

have shown that the facts of this case show why the 

Secretary's policy of citing owners, operators, for the 

acts or omissions of independent contractors--we have shown 

why that's a good policy. 

This was a very small job. The Snow White claim, which 

was similar, took only three days. This particular work was 

not expected to last I believe it was either two or three 

weeks that the--according to the testimony of Mr. Kennedy. 

Mr. Holmes is clearly the type of businessman who works 

at different sites. He is hard to follow down. Cyprus, on 

the other hand, is a mile away. Cyprus has an ongoing 

operation. It is administratively practical for Cyprus in 

these circumstances to be held to Mr. Holmes' actions. 

Cyprus should be charged, and I submit that the legislative history shows that Congress intended to give the 

Secretary the discretion to cite the operator. .In this 

circumstance there is nothing in the legislative history 

which indicates that Congress wanted the Secretary to proceed 

against the independent contractor. It was for the Secretary 

to decide, and I submit that that exercise of discretion by 

the Secretary is sound. 

JUDGE KOUTRAS: Now, let me stop you on that point. You 

feel that the legislative history supports the conclusion that 

the reason that Congress included an independent contractor 

was to give the Secretary the discretion to--which party to 

cite? 

MR. KORSON: I think it was the intention to give the 

Secretary the discretion to decide that issue. 

JUDGE KOUTRAS: Standard of discretion? 

2086 
MR. KORSON: Well, Your Honor, under the Administrative 

Procedure Act, ·there are circumstances under which the discretion of an agency may be examined, yes. 

JUDGE KOUTRAS: Which is to. see whether it's arbitrary 

or capricious? 

MR. KOR.SON: That's correct. 

JUDGE KOUTRAS: If the agency hadn't decided for the 

independent contractor without any standards at all, would 

that be arbitrary or capricious? 

MR. KORSON: That would be arbitrary or capricious, but 

that is not what .happened here. What I. am suggesting is 

there are at least two alternative positions here that could 

have been taken with the Secretary here with the statutory 

language. The Secretary could have concluded that he would 

direct his inspectors to cite the independent contractor in 

this situation, but he decided not to do that, at least for 

the time being, and I submit that the two choices presented 

are both entirely defensible policies based on the statute. 

The Secretary's policy decision to proceed against a mine operatorowner rather than an independent contractor was recently reviewed by the 

Commission in MSHA v. Old Ben Coal Company, Docket No. VINC 79-119, 

October 29, 1979. While expressing some doubt concerning the Secretary's 

"owners only" enforcement policy, and while expressing some concern that any 

unduly prolonged continuation of a policy that prohibits direct enforcement 

of the Act against contractors, the Commission nevertheless in Old Ben 

affirmed the Secretary's present discretionary enforcement policy of proceeding only against the mine opeator-owner. Further, upon review of the 

decision of Judge Michels in MSHA v. Monterey Coal Company, Dockets 

HOPE 78-469- 78-476, rejecting MSHA's absolute or strict operator-owner 

liability theory, the Commission, on November 13, 1979, reversed Judge 

Michels and in so doing relied on its ruling in Old Ben. 

On October 23, 1978, MSHA published a draft of its proposed regulations 

dealing with certain guidelines which are intended to enable mine inspectors 

to proceed directly against contractors for their violations, and on 

August 14, 1979, proposed regulations were published in the Federal Register, 44 Fed. Reg. 47746-47753 (1979). Although the Commission views this as 

an intent by the Secretary to enforce the Act directly against contractors 

for violations they commit, and alluded to the fact that continued enforcement against owner-operators rather than contractors on the ground of administrative convenience would be an abuse of discretion and contrary to 

Congressional intent, the Commission nevertheless opted to allow the Secretary additional time to implement changes in his contractor enforcement 

policy and chose not to disturb the Secretary's interim policy decision to 

2087 
proceed solely against owner-operators out of consideration for the Secretary's "consistent enforcement for reasons consistent with the purposes and 

policies of the 1977 Act." Under the circumstances, while I may be in 

agreement with Judge Michels' well-reasoned ruling in his Monterey decision 

and with Commissioner Backley in his dissents in Old Ben and Monterey, I am 

constrained to apply the Commission's decisions in those cases to the facts 

presented here, and, following those decisions,! conclude and find that the 

order in question here was properly issued to CIM and contestant's arguments 

to the contrary are rejected. 

Although there was a question raised during the opening arguments at 

the hearing with respect to the question as to whether MSHA has established 

the fact of violation concerning the specific mandatory standard cited by 

the inspector on the-face of his order (Tr. 10-15), it is unnecessary for 

me to make a specific finding on this question at this time. It is clear, 

and the parties are in agreement, that an.imminent danger order may be 

validly issued and affirmed for conditions or practices constituting an 

imminent danger but not constituting violations of any specific mandatory 

safety standard, Eastern Associated Coal Company, 1 IBMA 233, 235 (1972). 

In this regard, I take note of the fact that on November 19, 1979, MSHA 

filed its proposal for assessment of civil penalty against Cyprus Industrial 

Minerals pursuant to section llO(a) of the Act, seeking a $1,000 civil penalty assessment for an alleged violation of 30 CFR 57.3-22, the mandatory 

safety standard cited by the inspector on the face of the imminent danger 

order here in question. That matter is still pending before me and the 

parties will have an opportunity to address the pertinent issues presented 

in that proceeding. 

Conclusion 

In view of the aforementioned findings and conclusions, and on the 

basis of the preponderance of the reliable and probative evidence adduced in 

this proceeding, I find that the conditions described in the order of withdrawal constituted an imminent danger and that the order was properly issued. 

The evidence of record supports the inspector's judgment that the conditions 

he found on the day in question presented a situation that could reasonably 

be expected to result in death or serious injury before the conditions could 

be abated and that normal mining operations could not continue or proceed 

until the conditions were abated. I have also concluded that the work being 

conducted by Independent contractor Holmes for CIM at the time the order 

issued were activities directly related to mining at a mine within the meaning and intent of the Act and that the order was properly issued to CIM as 

the mine owner. 

ORDER 

Order of Withdrawal No. 342065 issued August 3, 1978, is AFFIRMED and 

this proceeding is DISMISSED. 

~~ut«.?'~ Administrative Law Judge 

2088 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

v. 

W. A. BOWES, INC., 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR. 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-337-PM 

A.c. No. 35-02386-05002 

Cougar Mine 

DECISION 

Appearances: Donald F. Rector, Esq., Office of the Solicitor, Department 

of Labor, for Petitioner; 

Warde H. Erwin, Esq., Portland, Oregon, for Respondent. 

Before: Administrative Law Judge Michels 

The above-captioned civil penalty proceeding was brought.pursuant to 

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

30 u.s.c. § 820(a) by a petition filed February 12, 1979. A timely answer 

was filed by the Respondent denying the charges and requesting a hearing. 

On August 30, 1979, a hearing was held in Pendleton, Oregon, at which both 

parties were represented by counsel. 

Issues 

1. Whether the Cougar Mine of the Respondent is engaged in "commerce" 

within the meaning of that term under Section 3(b) of the Act. 

2. Whether Respondent violated the mandatory standards as charged, 

and, if so, the amount of penalty which should be assessed. 

Commerce 

The matter of whether the Cougar Mine is engaged in interstate c9mmerce 

was decided tentatively from the bench for the purpose of permitting the 

rendering of decisions on the merits of the citations. I found, subject to 

full and complete reconsideration upon the submission of briefs, that interstate commerce was established (Tr. 44). The parties duly filed briefs on 

the matter which I have carefully considered. The following is my reconsidered determination on the question of interstate commerce. 

2089 
Facts on "Commerce" 

The following is a statement by Respondent's counsel which provides 

helpful general background about the Respondent and the Cougar Mine, as well 

as factual data on the issue of commerce. See pages 10-15 of the transcript. 

Counsel for MSHA stipulated that if witnesses were called they would testify 

to the facts contained in Respondent's opening statement. Counsel in effect 

accepted the statement as facts (Tr. 18-19). It is as follows: 

MR.. ERWIN: Well, basicically we have just now touched 

on what I was going to say, because the evidence will probably be very simple. 

There is a question, a serious question, as to whether 

or not this operation is within interstate commerce. And I 

think by way of opening statement I can tell you what I 

expect the evidence will show because it is going to come 

from our clients anyway. 

One is that ~illiam Bowes, Incorporated, is not a production company. It has properties -- Now, it doesn't own 

any properties. Let me put it that way first. Every property that it is in the process of developing is separately 

incorporated and there are properties being developed under 

contract with New York owners. There is property in Wyoming, 

not being developed at all. There is a property owned by 

New York people. There is property in Colorado which is 

being developed I presume under a lease but no production as 

far as William Bowes is concerned. There is a property in 

South Mountain -- incidentally, that property in Colorado is 

copper. It is a d~ff erent operation than what we are talking 

about here. These are precious metal mines. 

There is a property in South Mountain, Idaho, which is 

not producing, has ·not produced. There is a property in 

Nevada which has not produced and only assessment work is 

being done on it. There is a property in southern Oregon, 

but that's not true. The only other property in Oregon is 

this property as far as I know. 

Now, these properties are being developed with the idea 

that they will perhaps some day be put into production. To 

this date they have not produced any ore nor has any been 

shipped from the mine, no by~product has been shipped from 

the mine. They are totally in the development stage of their 

operation. * * * 

The purpose of the work they are doing now is eventual 

production so that they can remove the precious metal from 

the ore in some method. I think it is a little important 

2090 
that you know why this is an exceptional situation insofar 

as the pr.ocessing of the raw product is concerned. And it 

is because this particular vein that they are interested in 

in the Cougar Mine is a type of.material which is susceptible 

to what they call a heap leaching method of extraction. 

Normally when we think of hard rock ore, we think of 

going to a crushing plant or a reduction plant of some kind 

of thing that you normally think of. And if that were true 

we certainly would be having to ship ore into Tacoma and we 

would probably have to have other kinds of reduction plants, 

some sort of a mill someplace to do that. 

Not all ore is susceptible to the heap leaching process. 

So on the Cougar Mine what they have done is to build what 

appears to be almost the size of a small football field and it 

is paved with asphaltic pavement, it has ridges in it, squaring it off into sections so they can put a heap of ore on 

this section and another heap of ore on another section and 

so forth. Because in this particular case the people in 

New York do not own this but they are leasing this property 

from another party. So this is not an owned property. The 

property is being developed for the same owners but under a 

lease with a different party. 

What they do when they get these heaps of ore on these 

various pads, each one slopes down so that the fluid that 

they use will eventually go into the same trough. They 

put a hose, just like a garden hose which has holes in it 

and spray like you water your lawn a diluted solution of 

cyanide. 

Now, cyanide as it permeates these heaps of ore carries 

with it and leaches out the precious metal of both gold and 

silver. 

So what runs off of these piles from this other operation is a solution of cyanide. So that is saturated with 

gold and silver ore, we hope. And it is then pumped --

ALJ: Is this a new process? 

MR.. ERWIN: It's not completely new but it has not been 

used in this part of the country, and the only other one that 

I know that is in operation is in New Mexico no, it is in 

Carlin, Nevada, where the same type of thing is used. It is 

an open pit gold mine there. 

After this saturated solution drains off of these piles, 

it is then pumped into a tower where there is carbon columns 

2091 
where the water or solution rate of flow is controlled so 

that it goes down through these carbon columns, the carbon 

extracts from the solution basic mineral that we are · 

interested in recovering. 

To date there has been no production from that except 

for test purposes and that's all. None of it has been 

shipped. 

To be quite frank, at this moment we are having difficulty in trying to extract from the carbon columns the precious metal and determine whether or not they are getting a 

sufficient quantity out of this operation to make this procedure worthwhile. 

The point of all of this explanation is to show the 

court and really for counsel's edification, too, that there 

is nothing at this moment being shipped interstate by way of 

product, nothing has been shipped outside the State of Oregon, 

nothing probably will be shipped outside the State of Oregon 

for a long time, {£ ever. I don't know. After they recover 

the gold out of these carbon columns, I don't know whether 

the gold would be sold in interstate commerce then or whether 

people would come t·o the mine to pick it up. I am not knowledgeable enough to know how that would be done. 

But in any event at this moment this mine is totally in 

the development stages, as are the rest of the properties of 

William Bowes, many of which there is no activity on yet. 

They are merely in the assessment stages on many of them • 

. Counsel asked some questions about supplies. Most of 

our supplies are bought locally. In fact I will ask 

Mr. Henderson to testify, and I guess probably all of them 

are bought locally~ I don't know where the cyanide come 

from but I suspect it could be purchased locally, although 

it might have to be shipped in. But my understanding is 

that that doesn't constitute interstate commerce. It is 

the transportation out or the sale of the product which 

constitutes interstate commerce. 

So there is a little question as to whether at this · 

stage we come under this act at all. And I thought it might 

be helpful if I would explain to the court why this is an 

unusual type of mining operation, why it is not subject to 

the usual situation. 

There are few other facts in the record bearing directly on the commerce question. Kenneth D. Henderson, mine manager at the Cougar Mine 

testified that he was familiar with two other mine sites of the Respondent, 

2092 
namely, the South Mountain property in Idaho and the operation in the Steamboat Springs area, Colorado (Tr. 20). Also he testified that Cougar property is owned by a family in Baker, Oregon, and leased to the Respondent, 

a New York corporation (Tr. 21). 

Mr. Henderson explained that the mine was not producing ore on the 

lower level but that the operator was working the upper levels on a part 

time basis and the personnel used varies from 14 to as many as 25 

(Tr. 21-22). The approximate length of the tunnel worked in August 1978 

was about 470 feet (Tr. 27). 

Explosives are used in the operator's conventional method of mining. 

The explosives are purchased on a 60-day interval basis. These are obtained 

in Boise, Idaho, and shipped from there to the Cougar Mine in Oregon. Fifty 

cases are purchased at a time which cost a total of $2,500 (Tr. 23-24). 

Discussion of "Commerce" Issue 

Respondent contends that its Cougar Mine operation is solely developmental, that no ore has been produced or shipped, and that the mine operation therefore neither is in "commmerce" or affects "commerce." It cites 

Morton v. Bloom 373 F. Supp. 797 (WDC Pa. 1973) as holding that a one man 

coal miner who sold the production of the mine in intrastate commerce is not 

subject to the provisions of the Federal Coal Mine Health and Safety Act of 

1969. 

In approaching this discussion, it is first noted that the delegation 

of authority under the act is very proad. In affirming the District Court 

decision, the United States Court of Appeals for the 3rd Circuit in Kraynak 

Coal Company v. Marshall, Docket No. 78-2576 F.2d (3rd Cir. 1979) 

held on interstate commerce as follows: ~- -~ 

Appellants also argue that the Coal Mine Act does not 

reach them because their mine sells coal only intrastate to 

the Penntech Papers Company. They contend that these sales 

are insufficient to bring their operation within section 803, 

which declares that the act covers "[e]ach coal of other 

mine, the products of which enter commerce, or the operator 

or products of which affect commerce." In enacting the 

statute Congress intended to exercise its authority to 

regulate interstate commerce to "the maximum. extent feasible 

through legislation." S. Rep. No. 1005, 89th Cong., 

2d Sess. 1, reprinted in [1966] U.S. Code Cong. & Ad. 

News 2072, 2072. We agree with Judge Rosenberg's conclusion 

that "the selling by the defendants of over 10,000 tons of 

coal annually to a paper producer whose products are nationally distributed enters and affects interstate commerce 

within the meaning of § 803 of the Act." 457 F. Supp. at 

911. See also Shingara, 418 F. Supp. at 694-95. 

2093 
While the court was passing on the 1969 Act, the present Act, the 

Federal Coal Mine Health and Safety Act of 1977, was not changed with 

reference to commerce. It may be concluded, therefore, that the 1977 Act 

contains a delegation of authority over commerce as broad as that which 

Congress can give. 

Respondent's principal argument in this case, as noted above, seems to 

be that because the Cougar Mine was developmental and no ore was produced, 

nothing therefore either moved in commerce or affected commerce. The commerce grant in Section 4, however, does not necessarily require that products be produced. It states in part "or the operations or products of which 

affect commerce" (emphasis added). "Commerce" in Section 3(b) is defined 

very broadly as encompassing "trade, traffic, commerce, transportation, or 

communication among the several states or between a place in a State and 

anyplace outside thereof* * *"· In this case the facts, as will be related 

in more detail below, show at a minimum an "operation" which affects commerce, i.e., affects any trade, traffic, transportation, or communication 

among the-several states or otherwise as set out in section 3(b). 

The evidence or reasonable inferences therefrom demonstrates that the 

operation affects commerce in several direct ways. First, Respondent is not 

a one man operation or a small, localized business as was true in the Bloom 

case, supra. Far from it. Respondent is in a way a multi-state operation. 

William Bowes, Incorporated, is not a "production "company, but it does 

separately incorporate and under contract or lease develop certain properties. Some of the properties include one in Wyoming, one in the Steamboat 

Springs area in Colorado, a South Mountain property in Idaho, a property in 

Nevada and the Cougar Mine in Oregon, the subject of this proceeding. 

Apparently none are at this time in production, but rather are in a developmental stage. 

1he fact of these different properties in different states, even though 

not in production suggests an operation which affects trade, traffic, or 

communication between two or more states. It is a fair inference that communication by telephone, mail, or otherwise has occurred between states 

involving the New York Corporation and the Oregon Corporation or other 

properties. 

Specifically concerning the Cougar Mine, although there has been no 

production, the leasing of the property in Oregon by a New York Corporation 

and the building of a significant facility including an area paved the size 

of a small football field and all reasonable inferences therefrom permits a 

conclusion that the operation has affected trade, traffic, or communication 

between states. Finally, as to the Cougar Mine, the evidence expressly shows 

the movement of goods from out of state: specifically, the shipments of 

explosives from Boise Idaho, to the plant site in Oregon. Secretary of the 

Interior v. Shingara, 418 F. Supp. 693 (M.D. Pa. 1976). Therein, the court 

held that the "purchase of several items of equipment and an insurance 

policy produced by out-of-state sources also brings [the mine] within the 

2094 
affecting commerce rubrique and exposes them to the Act." Cf. Kraynak Coal 

Company v. Marshall, supra, and Brennan v. OSHRC, 492 F.2d 1027 (2nd Cir. 

1974). 

Finally, the holding of the Ninth Circuit in Godwin v. Occupational 

Safety and Health Review Commission, 540 F.2d 1013 (9th Cir. 1976), appears 

to be dispositive of the argument that the Cougar Mine was only in the 

developmental stage. In that case, involving the Occupational Safety and 

Health Act, the court held that the activity of clearing land for the purpose of growing grapes is an activity which, if performed under unsafe conditions, will adversely affect commerce; that clearing land is an integral 

part of the manufacturing of wine, and therefore commerce is affected by the 

activity. In this proceeding, the activity of developing a mine is an 

integral part of gold mining and the subsequent production of gold and 

similarly will affect commerce. 

Based on the above cited facts and circumstances, I affinil my decision 

from the bench that the Respondent at its Cougar Mine facility is engaged 

in "commerce" within the meaning of that term in the Act and subject to the 

Act and the regulations. 

Decisions on the Citations 

Citation No. 350060 

The decision made orally from the bench on this citation is contained 

in the record at pages 70-75 and reads as follows: 

This decision deals with Citation No. 00350060. My 

finding on the fact of the alleged violation is as follows: 

The mandatory standard in this case, alleged to have 

been violated, is 30 CFR 57.13-21 and reads as follows, 

"Except where automatic shutoff valves are used, safety 

chains or other suitable locking devices shall be used at 

connections to machines at high pressure hose lines of 

three quarter inch inside diameter or larger, and between 

high pressure hose lines of three quarter inch inside 

diameter or larger, where a connection failure would 

create a hazard." 

The inspector in citing the ·violation stated, "A safety 

chain or other suitable locking device was not used at the 

connection of the high pressure air line to the jack leg air 

drill in use at the face of the decline to prevent persons 

from being injured in the event the air line came loose from 

the drill." 

The evidence consists mainly of the testimony of the 

inspector and is not in dispute on most aspects of the charge. 

The inspector did testify that he found -- or that he 

2095 
observed the jack leg drill in use and while he did not see 

an automatic shutoff valve, he believed that there may [not] 

have been one. He also observed that the machine was of the 

type that normally requires the three quarter inch inside 

diameter hose. He also observed that the jack leg drill did 

not have the safety chain or other suitable locking device. 

A locking pin was acceptable to the inspector and abatement 

consisted of inserting of the locking pin. 

I find these to be the facts •. And I should add that no 

evidence in defense was presented which would suggest that 

there was an automatic shutoff valve or that this machine 

otherwise was not covered by this mandatory standard. 

In circumstances and for the reasons that I am going to 

shortly explain, I find this to be a violation of the standard as charged. 

The principal defense as I understand it and which I 

believe deals with the aspect of negligence more than it 

does the fact of the violation is to the effect that this 

was the fault of the individual employee. However, I will 

deal with that right here and now because it was a defense 

raised. 

Perhaps my view is colored to some extent. I have grown 

up and developed under the coal mine law or when the law was 

applied only to coal mines. The question of responsibility 

of the operator was fairly early settled and did not ever 

seem to be in serious doubt. I think the legislative history, 

the way the Act is.written, all tell us that Congress intended 

for the operator and not the employee to be held responsible. 

It was only I think in perhaps one rare instance, and that is 

in the securing of the smoking materials, do they ever place 

responsibility on the employee. 

Now, I fully recognize and I think that everybody that 

works with this does, that there are occasions when no matter 

what the operator does, it is just simply impossible to carry 

out a particular regulation. That is, where you fail to get 

the employees' cooperation. Some of those areas I have mentioned previously. That is, personal protective devices. 

And the board has ruled on that. 

However, in other areas dealing with the use of machines 

and devices, I don't think that rule applies. 

The argument was made and put very strongly and very 

ably, that * * * it was impossible for the operator here 

to comply with this particular regulation, and I would say 

2096 
from what I have seen, that it was perhaps difficult, but I 

cannot agree with the impossible designation. I accept the 

fact that in this case the operator was diligent, used all 

reasonable means available to it to comply with the law, but 

in spite of all of that employees did get out of line and did 

not follow through and engaged in the acts that they weren't 

supposed to for the purposes of safety. 

So what is the answer to that? It would just be glib 

of me [if] I sit here and say there is an answer; that you 

can somehow penalize men. Maybe that's impossible, labor 

relations being what they are. I don't know what the answer 

to it is. 

I simply could not subscribe, however, to the proposition that there is no answer, and my general conclusion wou1d 

be that further efforts or other efforts could be employed to 

prevent this sort of a violation. 

My judgment, of course, is based upon the clear requirements of the law which place the responsibilities solely and 

exclusively upon the operator. And if I did not so hold, I 

would just be going contrary to the very settled law in this 

area. So that would then be the reason for my finding of the 

violation in this case as to this citation. 

I will go through all of the criteria for this first 

alleged violation and that won't be necessary ~ereafter. 

As to the history of prior violations, based on the 

stipulation, there were only two other prior citations. I 

find there was no significant history of prior violations. 

As to the appropriateness of the penalty to the size 

of the operator, pursuant to the stipulation I find that 

the penalties herein will be appropriate to the size of the 

operator. I should make the finding that there were 

20 employees working at the mine and that they worked some 

19,000 man-hours. 

I would conclude that this would be a small mine under 

the circumstances and that the penalties, if any, that are 

assessed herein will be appropriate to its size. 

The effect on the operator's ability to continue in business. Pursuant to the stipulation, I find that the fines 

which will be assessed will not affect the operator's ability 

to continue in business. 

2097 
Good faith compliance. Again, based upon the stipulation, I find that the operator which abated all of the viola~ 

tions within the times established, demonstrated good faith 

efforts to achieve rapid compliance. 

Gravity. On this criterion, the only evidence that we 

have is that by way of the inspector who testified that if 

this hose breaks loose, it might whip around and injure 

employees, and in this instance one employee might have been 

subjected to the effects, could have resulted in bruises and 

eye inJury. And also that employee could not have easily " 

avoided the whipping hose. I appreciate the statement by 

counsel for the operator that this maybe isn't all that 

serious. However, that would not be evidence of record and 

I could not rely on it. Accordingly, I find it to be a 

moderately serious violation. 

1he last and final criterion is negligence. I have 

already indicated some of my thoughts on the negligence. I 

think it is evident that the operator did have a program to 

check these kinds of activities to make sure that this hose 

was iocked. In this instance it appears that it might have 

been the fault of an individual man, not inserting the key. 

In the circumstances I would find slight negligence. 

Accordingly, and in summation, I find that the operator 

violated the regulations as charged and that an appropriate 

penalty would be that which has been recommended by the 

Secretary, which is $18. I hereby assess the penalty of 

$18. 

This. decision is her'eby affirmed. 

Citation No. 350061 

The decision made orally from the bench on this citation is contained 

in the record at pages 88-89 and reads as follows: 

ALJ: I will proceed now to make my decision from the 

bench on this citation, which is 00350061, with the same 

reservations that I mentioned for the prior citation [that 

is, subject to reconsideration of the "commerce" issue]. 

In this case the inspector has alleged in his citation 

that there was a violation of 30 CFR 57.6-5, which reads 

"Area surrounding magazines and facilities for the storage 

of blasting agents shall be kept clear of rubbish, brush, 

dry grass, or trees (other than live trees ten or more feet 

tall), for a distance not less than 25 feet in all direc~ 

tions, and other unnecessary combustible materials for a 

distance of not less than 50 feet." 

2098 
The inspector indicated in his citation the condition or 

practice to be that the area around the powder magazine had 

an accumulation of rubbish, dry brush and other combustible 

materials. 

The only evidence we have in this citation is that 

received through the inspector. That is, his testimony and 

certain of the exhibits. 

The inspector has testified that there was an accumulation of materials which included a fallen tree, grass, possibly some brush and bark. This material was close up and 

even on top of the magazine. 

There is also evidence that at this particular time it 

was not dry but that it had rained a short time before. 

In light of this evidence and there being nothing to the 

contrary, I find that there has been a violation of the mandatory standard as alleged. My findings on the two criteria of 

gravity and negligence are as follows: On gravity, I find 

that while it may not have been extremely serious on this particular day because of the dampness, it was a situation in 

which dry periods do occur and therefore it could have been 

dangerous. I find therefore that this violation was moderately serious. On negligence, for the circumstances it 

appears to me that this was a situation.which the operator 

knew or should have known about. And I find that this was 

ordinary negligence. 

Accordingly, in summation, I find that the operator violated the regulation as charged and that an appropriate penalty is that proposed by the Secretary in this case, the sum 

of.$10. 

The above decision is hereby affirmed. 

Citation No. 350062 

The decision on this citation was rendered orally from the bench. 

It will be found at pages 103-106 of the transcript and reads: 

ALJ: The following is my decision with refersnce to 

citation No. 00350062. 

This decision is made with the same reservations as those 

made previously. 

The inspector alleged in this case a violation of 30 CFR 

57.6-20(f) which requires that "Magazines shall be* * * 

(f) Made of non-sparking material on the inside, including 

floors." 

2099 
And the inspector alleged as the condition or practice 

that the storage explosive magazine seen had exposed sparking material on the inside of the magazine. 

The evidence received consists of the testimony and the 

exhibits of both the inspector and of the operator, 

Mr. Henderson. There is not much, if any, dispute about the 

facts. The magazine had a door of an outside metal construction to which was nailed wooden planks. The nails came 

through the backs on the inside and were bent over. 

The inspector has testified that this was a sparking 

material and could be the source of a spark or an explosion 

of the dynamite stored in the magazine. 

The inspector's statement which was filed indicates that 

the possibility of the event occurring would be rare. So far 

as the fact of violation is concerned, which has nothing to 

do with the freque'ncy or the likelihood of the event, I do 

find that the standard was violated as alleged. 

I think, as I understand it at least, the defense is 

mainly along the lines that there was such a small amount of 

sparking material as to make it virtually impossible that a 

spark would ever occur. 

lliw, unfortunately, the standard does not specify the 

amount of sparking material. That is, whether it could be 

a small amount or a large amount. 

1he inspector has given his view as to the possibilities 

in which even what is obviously a relatively small amount of 

sparking material could still be sufficient under some circumstances to cause a spark. The main point that I would have 

to decide, then, was whether or not that was sufficent sparking material to come within the standard and, based on the 

inspector's testimony, I find that it is. 

My findings on the two statutory criteria of gravity 

and negligence are as follows: * * * I do not find that 

that would be serious. I would refer back to the inspector's view that the possibility of the event occurring would 

be rare. I believe in light of that circumstance that I 

would find it to be non-serious. 

N:>w, that leaves negligence. In light of all the testimony including that of Mr. Henderson who held the view that 

this wo.uld not cause a spark and that he never realized that 

this would be required under the regulations, I find that 

there was a small degree of negligence. The penalty proposed 

2100 
by the Secretary which is $10, I believe, already takes into 

account the factors of non-seriousness and a small degree of 

negligence, so I would find the same amount ••• I would 

assess the same amount, that is, a penalty of $10. 

In summation, if it is not clear, I find that the operator has violated this regulation as alleged and that appropriate penalty, taking into account all of the statutory criteria, would be the sum of $10. 

Citation No.350063 

A decision was rendered from the bench on this citation and will be 

found at pages 136-138 of the transcript as follows: 

ALJ: I will make my decision in the citation 

No. 00350063. It will be made subject to the same reservations heretofore mentioned. 

The inspector has charged a violation of 57.12-2 which 

reads "Electric equipment and circuits shall be provided with 

switches or other controls. Such switches or controls shall 

be of approved design and construction and shall be properly 

installed." The inspector found as the condition or practice 

that the diesel electric power generator did not have a disconnect switch located at the generator set and that the 

diesel electric generator was located within 150 feet of the 

mine portal. 

In this instance there is not a great deal, if any, dispute as to the basic situation. The diesel is located 150 

feet or so from the mine portal. There is a line running 

therefore from the diesel to the portal and as I understand 

it, at least, there is no question that that line is not 

protected. There is no dispute that if a line • • • or I 

should say circuit or piece of equipment needs to be protected, that the type of switch required was appropriate. 

This is more or less the classic situation in which the 

inspector in his view and in his judgment, based upon his 

experience and knowledge, [determined] that such line should 

have been protected by a disconnect switch. 

On the other hand, Mr. Henderson testified at least as 

I understood it that the switch on this particular circuit 

was not necessary. 

My finding is that this did violate the regulation as 

charged and I would give my reason as T view it. The mandatory standard does require that every circuit be provided 

2101 
with a switch. Now, this may not have been a highly vital or 

important circuit. I really don't know that. But it was, 

as I understand it, an unprotected circuit. This may be for 

all I know an area in which we are talking about something 

that becomes quite technical in electrical terms. That is 

certainly possible. But at least strictly speaking, as I 

understand it, the standard does require such a switch and I 

therefore find the violation as alleged. 

The gravity of that violation. As the inspector testified, in the case of a short there was a possibility of electrical shock. I find the violation to be moderately serious. 

On negligence, this is a condition which the operator knew or 

should have known about and I find it to be slightly negligent. Under all of the circumstances mentioned and because 

of the disagreement about the strict need for the switch, I 

find that only a nominal penalty should be assessed. The 

Secretary has recommened $36, which under the circumstances 

may be too large. In my view the penalty should be $18. 

And in summation I find that the operator violated the 

regulation charged and that an appropriate penalty, taking 

into account all of the statutory criteria, is $18. 

This decision is hereby affirmed. 

Citation No. 350064 

A decision was rendered orally from the bench as to this citation 

and is found at pages 162-164 of the transcript as follows: 

ALJ: The inspector in this instance charged a violation 

of 30 CFR 57.9-110, which reads as follows: "Shelter holes 

shall be provided to ensure the safety of men along haulageways where continuous clearance of at least 30 inches from 

the farthest projection of moving equipment on at least one 

side of the haulageway cannot be maintained." 

In his citation the inspector charged the condition or 

practice to be as follows, "Shelter holes were not provided 

along the main haulageway to ensure the safety of men along 

the haulageway. At least 30 inches of clearance must be 

provided from the farthest projection of moving equipment on 

at least one side of the haulageway." 

On this alleged violation we have the testimony of the 

inspector, Mr. Moore, and also of Mr. Henderson. Mr. Moore 

has indicated that he did not actually make any of the 

measurements but that it was his view that at times the clearance would be less than 30 inches because of his experience and 

because of his estimate of the size of the entry. 

2102 
Mr. Henderson has testified on the other hand that the 

entry would. be at least 108 inches and more, possibly another 

foot, to make it 120 inches, and that based upon the manufacturer's design, the scoop is 61 inches wide, which would leave 

in actuality a total of approximately 5 feet at the maximum. 

In looking at the standard, I observe that it does state 

that shelters are required where clearance of at least 30 

inches on one side of the haulageway cannot be maintained. 

Now, it would be apparent if the measurements mentioned 

by Mr• Henderson are true, that certainly 30 inches could be 

maintained. It is a question of whether they were. I believe 

that the inspector's belief was that with the conditions of the 

mine, the nature of the rubber tired vehicle and so forth, 

that they were not being maintained. The testimony does indicate his view that this would be a safety measure regardless 

of the regulation. I don't believe that I would be able nor 

would I want to rule on whether it should be a safety measure 

regardless of the regulation. My function would be to look at 

the regulation and see if it comes within it. 

My holding is that there is insufficient evidence here 

to prove the violation. That is based mainly on the fact 

that the inspector did not have accurate measurements. So it 

does provide a certain amount of uncertainty. It is perhaps 

likely that when you consider rubber tired vehicles going down 

that entry, that maybe 30 inches was not maintained at all 

times on one side, but the main point that I would rely on is 

that we just simply don't know from the testimony that we 

have. 

So, accordingly, I would find in this citation that there 

is no violation and that citation will be vacated. And hereby 

it is vacated. 

This decision is hereby affirmed and the petition as to this citation 

is dismissed. 

The assessments for the above citations are summarized as follows: 

Citation Nos. 

350060 

350061 

350062 

350063 

350064 

Total Assessment 

2103 

Assessments or 

other disposition 

$18. 

10. 

10. 

18. 

vacated 

$56. 
ORDER 

It is ordered that Respondent pay the penalty of $56 within 30 days 

of the date of this decision. 

Distribution: 

·1 . ,. ·-+- . . J /J r .() : ,.14 Ii !J . . ._;;.-~--l~O.~ /' ' /il~~ 

Franklin P. Michels 

Administrative Law Judge 

Donald F. Rector, Esq., Office of the Solicitor, u.s. Department 

of Labor, 450 Golden Gate Ave., Rm. 10404, San Francisco, CA 94102 

(Certified Mail) 

Warde H. Erwin, Esq., Optographic Bldg., 3323 s. w. Harbor Dr., 

Portland, OR 97201 (Certified Mail) 

2104 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

Civil Penalty Proceedings 

Docket No. VINC 79-107-PM 

A.c. No. 20-01047-05Q01 

SUPERIOR SAND & GRAVEL, INC., 

Respondent 

Docket No. VINC 79-191-PM 

A.C. No. 20-01047-05002 

Superior Wash Plant 

DECISION 

Appearances: Karl Overman, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Norman McLean, Esq., Houghton, Michigan, for Respondent. 

Before: Administrative Law Judge Michels 

These proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a). The petitions 

for assessment of civil penalty were filed in VINC 79-107-PM on January 4, 

1979, and in VINC 79-191-PM on February 15, 1979. Timely answers and a 

motion to consolidate the above proceedings were filed by the Respondent. 

A hearing was held in Houghton, Michigan, on September 27, 1979, at which 

both parties were represented by counsel. 

VINC 79-107-PM concerns five alleged violations. VINC 79-191-PM concerns six alleged violations. Evidence was received as to each citation 

except for two that were settled and decisions thereon were rendered from 

the bench. These decisions as they appear in the record, with certain 

necessary corrections or changes, are set forth below. In some instances 

it has been necessary to slightly alter sentence structure for clarity. 

Also certain deletions and additions have been made which are gen'erally 

indicated by appropriate markings. 

VINC 79-107-PM 

Citation Nos. 286419, 286420, 286821, 286825, issued September 7, 1978 

The following is the bench decision on t.he above citations found at 

pages 94-103 of the transcript: 

I am deciding the issue presented here in Docket 

79-107-PM with respect to four berm citations 

2105 
numbered 286419; 286420; * * * 286821; and 286825. In each 

of these citations the inspector alleged a substantially 

similar practice or condition, except that each citation is 

related to a particular part of the pit or mine. I will read 

into the record only the allegation in the first citation 

which is 286419. "A berm of mid.:..axle height of the largest 

vehicle using the elevated roadway leading into the crusher 

area was not provided along the right side for a distance of 

approximately 100 feet marking this roadway. This roadway 

was being used by heavy-duty mobile equipment." This concerns a violation in each instance of 30 CFR 59.9-22, which 

states as follows: "Adequate berms or guards shall be provided on the outer banks of elevated roadways.'' ·Berms are 

defined as follows: "Berm means "a pile or mound of material 

capable of restraining a vehicle." * * * 

As to this fact of violation, it seems to me the evidence is reasonably clear that there were no berms as defined 

by the regulation. A berm means a pile or mound of material 

capable of restraining a vehicle. I believe it is quite clear 

from the inspectorJs testimony, and I rely on that, that there 

were some piles of dirt in at least three locations. 

Other testimony indicates that due to apparent washouts, 

the piles or mounds were not continuous. It seems to be quite 

clear that that would create an opportunity for a vehicle to 

leave that roadway and those mounds would fail to prevent it 

from going over the side. I want to at this point make clear 

that at present, I am only talking about the first three 

citations. I am going to disregard for the moment, the last 

citation which is 286825 because I believe it is in a slightly 

different category.· Furthermore, as to those first three 

citations it does appear that the berms, where they did exist, 

were neither substantial enough nor high enough to prevent or 

to deflect a vehicle of the size being used on the roadways. 

That is not to say that the evidence as to washouts or 

other problems is not relevant and important and would be 

taken into account in an assessment of the penalties. However, as to the first three citations, based on the inspector's testimony, which I believed as far as the nature of the 

berms or the nature of· the mounds was concerned, was not 

seriously contested. I find a violation of 56.9-22. 

As to the last citation which is 286825, the circumstance is slightly different. The evidence indicates the 

road at the time was being widened and improved. There was a 

berm on the road, but part of the berm had been removed in 

the course of repairing or widening the road. The inspector's testimony is that he did not know and had no reason to 

know that the road was being widened or improved. There is 

2106 
some conflict about what he knew and what he said, however, I 

don't know that I have to consider that in making this decision. It seems to me on the basis of what we now know, 

which is that the road was being repaired, that had the 

inspector known this he might very well not have issued that 

citation. 

I am not finding fault with the inspector for issuing 

[the citation], however, on the basis of this whole record, 

we now know it was being repaired. It would be an unusually 

harsh interpretation to require the road, under those circumstances, to have a berm of the size and type·set forth. 

Accordingly, I find that the last berm citation, 286825, is 

not a violation of the standard as charged. * * * 

My findings on the statutory criteria are as follows: 

The size of the company. The testimony was that there are 

[approximately] five employees, and in my judgment I think 

this is a small company. No evidence was presented as to 

history of past violations. There is a substantial amount 

of evidence, however, as to the company's safety record. 

They have had a good safety record and appear to be safety 

conscious. I will certainly take that into account. There 

is no evidence that the peμalty to be assessed will restrict 

the operator's ability to continue in business. There is 

no evidence of any lack of good faith to achieve rapid compliance. So I assume that good faith compliance was 

achieved. 

I have taken into account all of the following various 

circumstances: * * * Only one man principally used this 

road or these roads. The road was generally or fairly wide 

and there is a relatively small chance [of] an accident; yet, 

if a truck did get into trouble or did go over these relatively high banks there could be a serious accident. So I 

find [these violations were] moderately serious in the circumstances mentioned. 

On negligence, the law requires proper berms. The evidence is clear that the company continued to operate without 

full berms after some had been washed out. In the circumstances, I find some degree of negligence for the assessment 

of these three citations. 

The assessment officer has assessed various amounts, the 

lowest being $20. I believe for the most part the assessment 

officer has taken into account some of the [mitigating] 

factors that were here mentioned. * * * [I assess] $20 for 

each of the three violations for a total of $60. That will 

complete my decision on the berms. 

The above bench decision is AFFIRMED. 

2107 
Citation No. 286822, issued September 7, 1978 

The following is the bench decision on the citation set forth at pages 

128-131 of the transcript: 

This is the last citation in this docket. It is 286822. 

The inspector cited improper guarding for the drive coupling 

on the portable generator plant. * * * He alleged this to be 

a violation of.30 CFR 56.14-6. This standard reads as 

follows: "Except when testing the machinery, guards shall be 

securely in place while the machinery is being operated." 

The first question is the fact of the violation. The 

inspector testified and there seems to be no question at all 

that the screen guard was in place, but not bolted. The issue 

is whether it was securely in place. There is also testimony 

that this screen is heavy, weighing something like 30 pounds. 

It would not be easily moved. If [the screen] were pushed, it 

would simply push into the coupling machinery. Based on all 

of the evidence on the probability of an accident, the nature 

of the conditions-which existed and so forth, it seems to me 

that this would be no more than what might be described as a 

technical violation, if it is a violation at all. 

I don't know whether this particular law requires securing by bolting in every instance. In this case and under 

these circumstances, and based on the testimony here I am 

going to give the benefit of the doubt to the operator. [The 

screen] was standing on legs which were stuck into the floor. 

From the testimony * * * it seems to me almost impossible, if 

not impossible, that that screen could be moved so that somebody could come in'and fall into the coupling. So, for the 

purpose of this machine, it was securely in place. * * * 

I find that there is no violation of [30 CFR 56.14-6] as 

charged in Citation 286822. Accordingly, the citation * * * 

is hereby vacated, and there will be no penalty assessed; 

The above bench decision is AFFIRMED. 

VINC 79-191-PM 

Citation Nos. 286417 and 286418, issued September 7, 1978 

The following is the bench decision on the above citations found at 

pages 158-163 of the transcript: 

This involves Citations 286417 and 286418. In 286417, 

the inspector found as the condition or practice that an 

automatic audible warning device was not provided on a 

Michigan 175 front-end loader, serial 13AHG306. The loader 

was used to feed the rock crusher in the pit. An observer to 

2108 
signal when it was safe to back up, was not present. In 

286418, an audible automatic warning device was not provided 

on the Koering dumpster, D5711. The dumpster was used to 

haul material from the crusher loadout to a stockpile. An 

observer to signal when it was safe to back up was not provided as set forth in 30 CFR 56.9-87. * * * 

In both instances it is clear from the inspector's testimony, [upon which I rely] that there was no automatic 

reverse warning device on the machines.*** "The mandatory 

standard involved which is 56.9-87, [requires] that heavyduty mobile equipment shall be provided with audible automatic warning devices when the operator of such equipment has 

an obstructed view to the rear. The equipment shall have 

either an automatic reverse signal alarm audible above the 

surrounding noise level of the machine or a signalman to 

signal when it is safe to back up. In this instance, the 

inspector testified, and there was no contrary testimony, 

that the equipment was heavy-duty mobile equipment * * * and 

that there were no audible warning devices. That testimony 

is not contested. Accordingly, I find that in each of the 

two instances, violations of 56.9-87 occurred. 

It is unnecessary to make findings on the criteria as 

to the history, size of the company, and ability to pay since 

these have already been made in this record. It appeared to 

me from the testimony that the company did use good faith 

efforts to achieve rapid compliance. So as far as the gravity 

is concerned, I think it is clear from the testimony and I 

believe experience in this area bears this out, that the lack 

of audible warning signals is a grave hazard. The mere fact 

that men might not always be behind the machines is not really 

too relevant because there is always that one rare instance 

where somebody would be in back of the machine and become 

gravely injured or die. I find that [these are] grave 

violations. 

Now, as the first citation, namely 286417, witnesses 

for the Respondent testified that they had a [corrective] 

device ordered and that when they received and placed it on 

the machine, it failed to function properly. It was taken 

off the machine with the object of returning it [to the 

manufacturer]. I believe that this is a mitigating circumstance as far as the negligence is concerned. However, 

* * * somebody could have. been injured when the device was 

not on the machine and I find some negligence [in 286417. 

In Citation 286418 I find ordinary negligence.] 

2109 
Taking into account the mitigating circumstances in 417, 

I will reduce that penalty by one~half which will make it $28. 

[In Citation 286418, I believe the proposed penalty is 

appropriate and I hereby assess $56 for it]. 

My bench decision is hereby AFFIRMED. 

Citation Nos. 286823 and 286824, issued September 7, 1978 

The following is the bench decision on the above citations found at 

pages 206-213 of the transcript: 

This part of the decision deals with two citations, 

numbers 286823 and 286824. The inspector charges the following: The stairway leading into the parts and lube van in the 

pit was not provided with handrails in violation of 30 CFR 

56.11-27. In 824, the inspector cited as a condition or 

practice the following: elevated walkways on both sides of 

the Cedar Rapids Wash Plant were not provided with handrails. 

The walkways are approximately 10 feet above the ground level. 

That is charged as~a violation of 30 CFR 56.11-27, a mandatory 

standard which [requires that] adequate crossovers, elevated 

walkways, elevated ramps, and stairways shall be of substantial construction, provided with handrails and maintained in 

good condition. Where necessary, toeboards shall be 

provided. 

The first violation to [which] I address myself is 823. 

The testimony demonstrates clearly that there was a stairway 

and that it had no handrails. There is some evidence to the 

effect that it is a. relatively short stairway and also that 

it was not used except infrequently to obtain materials 

within the van. Nevertheless, the inspector testified, and 

there is no evidence to t4e contrary, that there was grease 

on the stairway. It is the type of situation that could provide the background for an accident even though it is a 

relatively small stairway. The men going in and out could 

easily slip and fall and be seriously hurt. * * * [l/] 

The next citation is 286824. * * * So far as the actual 

standard is concerned,. it does, as I have interpreted it 

here, require a handrail for obvious safety reasons, so I 

therefore, find a violation ~n 286824. 

1/ The Respondent argued at the hearing that in abating the violation it 

installed two handrails and that as a result the door of the van could not 

be opened without removing the rails. The inspector testified that one 

handrail is sufficient (Tr. 176). This would permit the door to open. 

Accordingly, I held that only one rail was needed on the lube van (Tr. 210). 

2110 
The violation in both cases, [concerns] standard 

56.11-27. There being no evidence to the_ contrary, I find 

abatement in good faith was rapidly achieved. The gravity, I 

think, has already been referred to in part. There is a very 

good likelihood of injury from men stepping off or accidentally falling off such a walkway· or stairway. Accordingly, I 

find that it is a serious violation. Insofar as negligence is 

concerned, the testimony demonstrates disgreement as to an 

absolute need for such handrails in both of these instances. 

The company honestly and in good faith apparently did not 

believe they were needed. However, the standard does require 

it and it is negligent not to comply with the standard. So I 

find * * * a slight degree of ordinary negligence. 

It seems to me as far as assessments are concerned, the 

assessment officer's penalties took into account the factors 

I have been talking about. These are not high penalties. In 

the circumstances, I will assess those penalties * * *· For 

286823 I assess the penalty of $36 and for 286824 I assess 

the penalty of $34. 

The above bench decision is hereby AFFIRMED. 

Citation No. 286826, issued September 7, 1978 

Citation No. 286826 alleges a violation of 30 CFR 56.14-1 which 

requires that gears, sprockets, chains, drive, head, tail and takeup 

pulleys; flywheels, couplings, shafts, sawblades, fan inlets; and similar 

exposed moving machine parts which may be contacted by and cause injury to 

persons be guarded. The parties have agreed to settle this citation because 

there is a factual dispute as to whether the employees were actually exposed 

to the hazard. The proposed assessment is $66. The settlement is $14. 

Considering the circumstances, I approved this settlement and hereby 

incorporate it as part of my decision. 

Citation No. 286400, issued September 8, 1978 

Citation No. 286400 alleges a violation of 30 CFR 56.5-20 which sets 

forth permissible exposure to noise according to the American National 

Standards Institute (ANSI). The parties have agreed to settle for the proposed amount, $26. I approved this settlement and hereby incorporate it as 

part of my decision. 

A summary of the dispositions in this case are as follows: 

Citation 

286419 

286420 

286821 

286825 

286822 

2111 

Action/Assessment 

$ 20 

20 

20 

vacated 

vacated 
286417 

286418 

286823 

286824 

286826 

286400 

Total 

ORDER 

28 

56 

36 

34 

14 

26 

$254 

IT IS ORDERED that Respondent pay the penalties totaling $254 within 

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

Distribution: 

-· 7 :_) - -~.··i;!J ,~ .d /;; : ~ ./ '---_.... > / .vu--·Yl,...('~~ '--' ~ 

" \ 

Jru.~_.11-0 

Franklin P. Michels 

Administrative Law Judge 

Karl Overman, Esq., Office of the Solicitor, U. S. Department of 

Labor, 231 W. Lafayette St., 657 Federal Building and U. S. Courthouse, Detroit, MI 48226 (Certified Mail) 

Norman McLean, Esq., McLean & McCarthy, P.O. Box 65, Houghton, MI 

49931 (Certified Mail) 

2112 
FEDERAL MIN~ SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR . 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No, DENV 78-578-PM 

A/O No, 04-01036-05001 

v. 

Red Lava Pit & Mill 

RED LAVA PRODUCTS OF CALIFORNIA, 

Respondent 

DECISION APPROVING SETTLEMENTS 

ORDER TO PAY 

The Solicitor has filed a motion to approve settlements in the 

above-captioned procee4ing. 

This case involves four citations. The citation numbers, the 

mandatory standards, the original assessments, and the proposed penalties 

are set forth below. 

Citation No. 

00374661 

00374663 

00374664 

00374665 

Date 

5-31-78 

5-31-78 

5-31-78 

5-31-78 

Health or Safety 

Standard Violated 

(CFR Title 30) 

55.9-54 

55.12-13 

55.9-22 

55.9-22 

Proposed Proposed 

Penalty Amended 

Penalty 

$60.00 $51.00 

84.00 62.00 

28.00 24.00 

44.00 39.00 

The Solicitor advises in her motion that further investigation leads her 

to believe that negligence is less than was originally assessed. 

In addition, the Solicitor advises that there is no prior history of 

violations and that these violations were abated in good faith. 

The Solicitor's motion is deficient because it discusses all the 

violations as a group. Each alleged violation should be discussed 

individually and the reason for each proposed settlement should be 

discussed item by item. Nevertheless, in this case, since the proposed 

reductions are not large I have reviewed the citations, the assessment 

sheet and the attached inspector's statements. I particularly note 

that the operator has no history of prior violations. Based upon my 

review of pertinent materials I conclude that the recommended settle-

. ments are consistent with and will effectuate the purposes of the Act, 

However, the Solicitor should not submit a motion such as this in the 

future because I will not approve it. 

2113 
ORDER 

In light of the foregoing the recommended settlements are approved 

and the operator is ORDERED to pay $176 within 30 days from the date of 

this decision. 

Paul Merlin 

Assistant Chief Admiriistrative Law Judge 

Distribution: 

Judith G. Vogel, Esq., Office of the Solicitor, U.S. Department of 

Labor, 10404 Federal Bldg. , .450 Golden Gate Avenue, Box 36017, 

San Francisco, CA 94102 (Certified Mail) 

William L. Feeney, Esq., Windrem, Feeney, Wood and Williams, 301 North 

Forbes Street, Lakeport, CA 95453 (Certified Mail) 

2114 
-·-·,: 

...,...., ~,,,, . . <;;;/ - .. ~·s CJ&-

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (USHA), 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Petitioner 

December 26, 1979 

Civil Penalty Proceeding 

Docket No. VINC 79-154-PM 

A.c. No. 20-00044-05001 

Alpena Stone Quarry and Mill 

CEMENT DIVISION, NATIONAL GYPSlil1 

COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

William B. Moran, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for Petitioner; 

Timothy A. Fusco, Esq., Dykema, Gossett, Spencer, Goodnow 

& Trigg, Troy, Michigan, for Respondent. 

Chief Administrative Law Judge Broderick 

Statement of the Case 

'Ille proceeding arose upon the filing of a petition for the assessment 

of civil penalty (now called a proposal for a penalty, 29 CFR 2700.27) for 

11 alleged violations of mandadato~y safety standards contained in 30 CFR 

Part 56. The violations were charged in citations issued to Respondent 

following an inspection of the Alpena Stone Quarry and Mill between 

April 25 and May 9, 1978. 

Pursuant to notice, a hearing on the merits was held in Bay City, 

Michigan, on August 9 and 10, 1979. Federal mine inspectors Robert Wallace, 

Richard Keith, Alex Harju, Frank Gerovac, and Royal Williams testified on 

behalf of Petitioner. Dennis Charles Lane and Bruce Wagner testified on 

behalf of Respondent. Both parties have filed posthearing briefs. To the 

extent the contentions therein contained are not incorporated into this 

decision, they are rejected. 

Statutory Provisions 

Section 104 of the Federal Mine Safety and Health Act of 1977 provides 

in part: 

2115 
(a) 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. 

F.ach 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. 

* * * * * * * 

(d)(l) If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, 

he shall include such finding in any citation given to the 

operator under this Act. 

* * * * * * * 

(e)(l) If an operator has a pattern of violations of 

mandatory health or safety standards in the coal or other 

mine which are of such nature as could have significantly 

and substantially contributed to the cause and effect of 

coal or other mine health or safety hazards, he shall be 

given written notice that such pattern exists. If, upon 

any inspection within 90 days after the issuance of such 

notice, an authorized representative of the Secretary finds 

any violation of a mandatory health or safety standard 

which could significantly and substantially contribute to 

·the cause and effect of a coal or other mine safety or 

health hazard, the authorized representative shall issue 

an order requiring the operator to cause all persons in 

the area affected by such violation, except those persons 

referred to in subsection (c), to be withdrawn from, and 

to be prohibited from entering, such area until an authorized representative of the Secretary determines that such 

violation has been abated. 

2116. 
Section 110 of the Act provides in part: 

(a) The operator of a coal or other mine in which a 

violation occurs of a mandatory health or safety standard 

or who violates any other provision of this Act, shall be 

assessed a civil penalty by the Secretary which penalty 

shall not be more than $10,000 for each such violation. 

Each occurrence of a violation of a mandatory health or 

safety standard may constitute a separate offense. 

* * * * * * * 

(i) The Commission shall have authority to assess all 

civil penalties provided in this Act. In assessing civil 

monetary penalties, the Commission shall consider the operator's history of previous violations, the appropriateness 

of such penalty to the size of the business of the operator 

charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of 

the violation, and the demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after 

notification of a violation. 

Regulatory Provisions 

30 CFR, Part 56 provides in part: 

56.4-9 Mandatory. All heat sources, including lighting 

equipment, capable of producing combustion shall be insulated 

or isolated from combustible materials. 

* * * * * * 

56.4-33 Mandatory. Valves on oxygen and acetylene tanks 

shall be kept closed when the contents are not being used. 

* * * * * * * 

56.9-87 Mandatory. Heavy duty mobile equipment shall 

be provided with audible warning devices. When the operator 

of such equipment has an obstructed view to the rear, the 

equipment shall have either an autonatic reverse signal 

alarm which is audible above the surrounding noise level 

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

* * * * * * * 

56.11-1 Mandatory. Safe means of access shall be provided and maintained to all working places. 

* * * * * * * 

2117 
56.12-8 Mandatory. Power wires and cables ·shall be 

insulated adequately where they pass into or out of electrical c·ompartments. Cables shall enter metal frames of 

motors, splice boxes, and electrical compartments only 

through proper fittings. When insulated wires, other than 

cables, pass through metal frames, the holes shall be 

substantially bushed with insulated bushings. 

* * * * * * 

56.12-32 Mandatory. Inspection and cover plates on 

electrical equipment and junction boxes shall be kept in 

place at all times except during testing or repairs. 

* * * * * * 

56.12-34 Mandatory. Portable extension lights, and 

other lights that by their location present a shock or 

burn hazard, shall be guarded. 

Issues 

* 

* 

1. Whether the violations described in the citations occurred or 

existed as alleged? 

2. In each instance where a violation is found, what is th_e appropriate penalty for each violation? 

3. In each instance where a violation is found, was the additional 

finding that it could have significantly and substantially contributed to 

the cause and effect of mine health or safety hazards properly made? 

Findings of Fact and Conclusions of Law 

Penalty Proceedings Before the Review Commission 

A civil penalty proceeding before the Commission is in no sense a 

review of the actions or determinations of the MSHA inspectors or Assessment Office. It is in fact a de novo proceeding in which the Secretary 

seeks to have the Commission impo-;;-c-ivil penalties for what ne contends 

were violations of mandatory safety standards contained in the Act or in 

regulations promulgated pursuant to the Act. The Commission must determine on the basis of the evidence presented at a hearing before an 

Administrative Law Judge, whether the alleged violations occurred. For 

those found, the Judge will impose a penalty based on the six criteria 

in llO(i) of the Act. The burden of proof is on the Secretary to establish the existence or occurrence of the violations and, to the extent 

that he urges that any of the statutory criteria should increase the 

penalty, he has the burden of establishing the existence of the 

aggravating factor. The important factors concerning which the parties 

to these proceedings disagree are gravity and neglige~ce. 

2118 
The gravity of a violation depends upon the possible hazard to miners 

and the likelihood that the hazard will result in injury. Robert G. Lawson 

Coal Company, 1 IBMA 115. A violation is the result of the operator's 

negligence if he knew or should have known of the condition and failed to 

take corrective action. The knowledge of a for~man may be imputed to the 

operator. The Valley Camp Coal Company, 3 IBMA 463. 

Significant and Substantial 

Fach of the citations involved in this proceeding contain a finding 

that the condition is "significant and substantial." This phrase I take 

to be shorthand for a finding that the "violation is of such nature as 

could significantly and substantially contribute to the cause and effect 

of a * * * mine safety or health hazard." Section 104(d)(l). In its 

answer, Respondent challenged these findings. At the hearing, the parties stipulated that the propriety of these findings is properly an issue 

in the present civil penalty proceeding. In its posthearing brief, 

Respondent argues that such findings are not proper in a citation issued 

under section 104(a) and therefore should be vacated. It cites the decision of Judge Koutras in Secretary v.·Lone Star Industries, Docket No. 

VINC 79-21-PM, issued July 3, 1979, as standing for the proposition that 

such findings are only properly made in a 104(d)(l) citation for unwarrantable failure to comply with a standard. 

Petitioner moved "to strike" Respondent's argument because it was not 

raised prior to the filing of its posthearing brief. The motion is DENIED 

and the request for additional time to respond is DENIED. 

Respondent's position overlooks, however, the fact that under section 104(e), sanctions may be applied for a pattern of violations which 

are of such nature as could have significantly and substantially contributed to the cause and effect of·a mine health or safety hazard. 

There is no requirement in section 104(e) that the violations be caused 

by unwarrantable failure. I conclude that findings in a 104(a) citation that the violation is significant and substantial are not improper 

provided the findings are supported by the facts. 

In a decision under the Coal Mine Safety Act,· the Board of Mine Operations Appeals interpreted the phrase "significantly and substantially 

contribute to the cause and effect of a mine safety or health hazard" to 

include all violations except "violations posing no risk of injury at all, 

that is to say, purely technical violations, and violations posing a source 

of any injury which has only a remote or speculative chance of coming to 

fruition." Alabama By-Products Corporation (On Reconsideration), 7 IBMA 

85, 94. This tortured construction of language was said by the Board to 

have been compelled by the decision of the Court of Appeals in International Union, United Mine Workers of America v. Kleppe, 532 F.2d 1403 

(D.C. Cir. 1976), cert. den., 429 U.S. 858 (1976). In fact, the court's 

opinion did not construe the language in question at all, but merely held 

that the Board had mistakenly read in a significant and substantial 

2119 
requirement for a section 104(c)(l) withdrawal order when no such 

requirement was contained in the statute. 30 u.s.c. § 814(c)(l). 

When it was issued, I thought the Board's interpretation was 

wrong and I think it wrong today. However, the Senate Committee on 

Human Resources in its Report on f, 717, which became the Federal Mine 

Safety and Health Act of 1977, stated: 

'Ihe Committee notes with approval that the Board of Mine 

Operations Appeals has reinterpreted the "significant and substantial" language in Alabama By-Products Corp., 7 IBMA 85, 

and ruled that only notices for purely technical violations 

could not be issued under Sec. 104(c) (1). 

s. Rep. No. 95-181, 95th Cong., 1st Sess. 31 (1977), reprinted in U.S. 

Senate, Committee on Htmlan Resources, Subcommittee on Labor, Legislative 

History of the Federal Mine Safety and Health Act of 1977, 95th Cong., 

2d Sess. at 619 (1978). · 

'Iherefore, although I would not so interpret the language if it were 

a matter of first impression, I feel constrained to follow the Board's 

construction, and conclude that only purely technical violations, and 

violations which have only a remote or speculative chance of causing any 

injury, cannot be cited as significant and substantial. 

The Violations 

(1) Citation No. 288294 charged a violation of 30 CFR 56.9-87 

which requires that heavy duty mobile equipment be provided with audible 

warning devices. When the operator of such equipment has an obstructed 

view of the rear, the standard requires that the equipment have either 

an automatic reverse signal alarm which is audible above the surrounding 

noise level or an observer to signal when it is safe to back up. Respondent had a 120 Hough bulldozer which had an inoperative reverse alarm at 

the time of inspection. The bulldozer is a large vehicle with an 

obstructed view. No observer was present. The inspector testified that 

an individual in the vicinity of the bulldozer could be hurt if that person did not hear the alarm. I find that a violation was established and 

that it is moderately serious; however, there is no evidence of negligence. Because the violation could result in injury, I find that it was 

significant and substantial. 

(2) Citation No. 288295 alleged a violation of 30 CFR 56.4-9 which 

requires that all heat sources, including lighting equipment capable of 

producing combustion, be insulated or isolated from combustible materials. 

The inspector testified that a foreign substance, possibly oil or grease, 

contacted the insulation around the number one cyclone duct, causing the 

insulation to smolder. The inspector stated that the fire was extinguished 

and the machinery was repaired to prevent any further overheating. The 

duct was located approximately 4-6 inches from the travel pattern of the 

2120 
walkway. The duct was a source of heat and it was not sufficiently separated from combustible materials, namely, oil or grease. A violation was 

established which was moderately serious. No evidence was presented to 

show how or when the oil or grease came to be on the duct and therefore 

negligence was not established. Since the violation could have resulted 

in injury, I find that it was significant and substantial. ' 

(3) Citatio.n No. 288296 alleged a violation of 30 CFR 56.12-32 

which requires that inspection and cover plates on electrical equipment 

and junction boxes be kept in place at all times except during testing 

or repairing. The inspector testified that the paddle switch junction 

box at the No. 14 conveyor was not provided with a cover. Due to the 

location of the box, near an elevated walkway, a person who contacted 

the wires in the box could get a shock and fall 30 to 40 feet. A v~olation was established and it was serious. The evidence establishes 

that the condition had existed for some time and should have been known 

to Respondent. Respondent was negligent. Since an injury could have 

occurred, the violation was significant and substantial. 

(4) Citation No. 288297 alleges a violation of 30 CFR 56.11-1 

which requires that safe means of access be provided and maintained to 

all working places. I find that spillage up to 24 inches existed on 

the walkway around the head pulley of the #14 conveyor. This spillage 

created a tripping hazard. The inspector testified that an employee 

could fall 30 to 40 feet from the walkway to the ground below. The 

inspector also stated that the spillage was impacted, indicating that 

it had been present for some period of time. I find that a violation 

existed. It was moderately serious and was caused by Respondent's 

negligence. I further find that this violation was significant and 

substantial. 

(5) Citation No. 288298 alleges a violation of 30 CFR 56.12-34 

which requires that portable extension lights and other lights that ·by 

their location present a shock or burn hazard be guarded. A 200-Watt 

bulb at the No. 3 high line conveyor was not provided with a guard. The 

light could have been broken and caused injury to an employee. A violation of the standard was established. The Respondent abated.the violation by placing a guard on the bulb. I find that the violation was 

caused by Respondent's negligence since the condition was obvious to 

visual observation. However, the evidence does not establish that it 

was a serious violation. I· find that because the violation could 

contribute to a health or safety hazard, it was significant and 

substantial. 

(6) Citation No. 288721 charges a violation of 30 CFR 56.12-8 

which requires that power wires and cables be insulated adequately when 

they pass into or out of electrical compartments. When insulated wires 

pass through metal frames, the regulation requires that the holes be 

substantially bushed with insulated bushings. The electrical power 

wires entering the switch box at the impactor floor hydraulic cylinder 

2121 
did not have a bushing. The inspector stated that the wires could rub 

against the bare metal and cause an electrical short. He also stated 

that the weight of the cable could pull the wire free, also causing a 

short. There is both a burn hazard and a shock hazard. The Government 

conceded that the violation was not significant and substantial. I find_ 

that a violation was established. The violation was not serious. The condition was apparent, should have been known to Respondent and therefore 

was caused by its negligence. The violation was not significant and 

substantial. 

(7) Citation No. 288722 alleges a violation of 30 CFR 56.11-1 

which requires that a safe means of access be provided and maintained 

to all working places. The evidence established that there was excessive buildup of limestone dust at the top raw grind silo between th~ 29 

and 33 conveyor belts. The evidence further shows, however, that the 

area in question is not used by workmen, nor is it a means of access to 

any working place. 

'Iherefore, I find that the Government has failed to sustain its 

burden of proof and that no violation has been established. 

(8) Citation No. 288827 alleges a violation of 30 CFR 56.4-33 

which requires that valves on .oxygen and acetylene tanks be kept closed 

when the contents are not being used. The oxygen and acetylene cylinders 

in the #2 storeroom were in an open position at the time of inspection. 

There were ignition sources close by and there was a possibility of 

explosion. A violation was established and was moderately serious. The 

condition was known or should have been known to Respondent. Therefore, 

it was caused by Respondent's negligence. Because the violation could 

have resulted in injury, it was significant and substantial. 

(9) Citation No. 288826 charges a violation of 30 CFR 56.12-34 

which requires that portable extension lights and other lights that by 

their location present a shock or burn hazard be guarded. There was an 

unguarded light bulb in Respondent's carpenter's shop. This is a violation of the standard. Since the condition was obvious, it was due to 

Respondent's negligence. It was not serious. However, it could have 

resulted in injury and therefore was significant and substantial. 

(10) Citation No. 288566 was issued for an alleged violation of 

30 CFR 56.11-1 which requires that a safe means of access be provided and 

maintained to all working places. An accumulation of limestone was present 

along the walkway to the tail pulley of the #41 conveyor belt. The accumulation was up to 2 feet deep and covered an area 30 feet long. I find 

that a violation was established which was moderately serious. Because the 

condition was evident, I find that Respondent was negligent. I also find 

that the violation was significant and substantial. 

(11) Citation No. 288567 alleges a violation of 30 CFR 56.11-1, 

which is set forth in t~e preceding paragraph. A hole measuring 6 inches 

2122 
by 8 inches was present at the low end of the #16 walkway. The condition 

w:is apparent and obvious to the Respondent. The violation was due to 

Respondent's negligence and was moderately serious. I further find that 

the violation was significant and substantial. 

Conclusions of Law 

1. The undersigned Administrative Law Judge has jurisdiction over 

the parties and subject matter of this proceeding. 

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

to the provisions of the Federal Mine Safety and Health Act of 1977. 

3. Except as otherwise found herein, Respondent violated the mandatory health and safety standards as charged in the notices of violation. 

4. The penalties hereafter assessed are based on my findings that 

the violations occurred, and on a consideration of the following criteria 

with respect to each violation: The operator's history of previous violations, the appropriateness of the penalty to the size of the business 

of the operator, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violations 

and the demonstrated good faith of the operator in attempting to achieve 

rapid compliance. 

ORDER 

Based on the foregoing findings of fact and conclusions of law, Respondent is assessed the following penalties: 

Citation No. Date 30 CFR Standard Penalty 

288294 04/18/78 56.9-87 $ 150 

288295 04/25/78 56.4-9 75 

288296 04/25/78 56.12-32 150 

288297 04/25/78 56.11-1 250 

288298 04/25/78 56.12-34 50 

288721 04/25/78 56.12-8 50 

288722 04/27 /78 56.11-1 0 

288827 05/09/78 56.4-33 150 

288826 05/09/78 56.12-34 50 

288566 05/02/78 56.11-1 150 

288567 05/04/78 56.11-1 150 

Total $1,225 

Respondent is ORDERED to pay penalties in the total amount of $1,225 

within 30 days of the date of this decision. 

)~:!!!~~ Chief Administrative Law Judge 

2123 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52oS LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

! - .~ 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PITT 79-132-P 

A/O No. 36-00963-03002 

v. 

Mathies Mine 

MATHIES COAL CO., 

Respondent 

DECISION APPROVING SETTLEMENTS 

ORDER OF VACATION 

ORDER TO PAY 

The Solicitor has filed a motion to approve settlements for five 

citations and to approve the vacation of one citation in the abovecaptioned proceeding. 

Citation No. 233436 was issued for an alleged violation of 30 CFR 

75.1720(a). According to the Solicitor this citation was issued when an 

inspector observed a miner driving an electric motor car without adequate eye protection. The Solicitor further states that discussions 

with the operator indicate that the miner had been provided with the 

required safety glasses and had them in his pocket at the time the 

citation was issued. The Solicitor states that since this violation was 

due primarily to the employee's negligence rather than a lack of diligence on the part of the operator no penalty should be assessed. The 

Solicitor is correct that the citation should be vacated but he gives 

the wrong reason. The former Board of Mine Operations Appeals held that 

where a miner intentionally failed to wear goggles the operator is not 

guilty of a violation where it has diligently enforced the requirements 

of the regulation. North American Coal Corp., 3 IBMA 93 at 106-108 

(April 17, 1974). This appears to be the case here. Accordingly, there 

is no violation. See also the recent decision of Administrative Law 

Judge Koutras in Peabody Coal Company, DENV 77-77-P (August 30, 1978). 

Lack of negligence is not, and never has been, a basis for va~ating a 

citation. 

The Solicitor recommends a settlement of $150, the originally 

assessed amount, for Citation 233435 which was for a failure to provide 

adequate separation between explosives and detonators, a violation of 

30 CFR 75.1306. This settlerr:.ent appears reasonable and is approved. 

Settlements are recommended for the remaining four citations in 

amounts only slightly less than the originally assessed amounts. The 

2124 
settlements appear reasonable in light of the gravity of the conditions 

presented. However, the Solicitor is advised that the fact that the 

operator abated the violations immediately is not a ground for reduction 

of the original assessment. Presumably the Assessment Office took into 

account rapid abatement in determining the original assessments. The 

Solicitor should not use this reason again as a basis for recommending 

any reduction. If he does so in the future in any case of mine, the 

settlement will be disapproved. 

ORDER 

The operator is ORDERED to pay $995 within 30 days from the date of 

this decision. Citation No. 233436 is VACATED. 

c 

\ 

\ 

Administrative Law Judge 

Distribution: 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of 

Labor, Rm. 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

2125 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREAT NATIONAL CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-189-P 

A.O. No. 34-00676-03001 

McCurtain No. 2 Mine 

DECISION 

Appearances: 

Before: 

David S. Jones, U.S. Department of Labor, Office 

of the Solicitor, Dallas, Texas, for Petitioner; 

Jerry D. Pruitt, Fort Smith, Arkansas, for Respondent. 

Judge Stewart 

PROCEDURAL BACKGROUND 

The above-captioned case is a civil penalty proceeding 

brought pursuant to section 110 of the Federal Mine Safety and 

Health Act of 1977 (hereinafter, the Act), 30 U.S.C. § 820(a) 

(1978). Petitioner filed a petition for assessment of civil 

penalties for the three violations included under this docket 

number on January 9, 1979. Respondent answered this petition 

on February 5, 1979. 

The hearing in this matter was held on September 19, 1979, 

in Fort Smith, Arkansas. Petitioner and Respondent each 

called a single _witness. Petitioner introduced five exhibits. 

At the conclusion of the hearing the parties waived their right 

to file proposed findings of fact and conclusions of law. 

Findings of Fact and Conclusions of Law 

The violations alleged herein were observed by Inspector 

Farrin E. Walker during the course of inspections of Respondent's 

McCurtain No. 2 Mine. These inspections were conducted in June of 

1978. In each instance, the inspector issued a section 104(a) 

citation. 

2126 
At the hearing, the parties stipulated that Respondent's 

McCurtain No. 2 Mine was a small mine. Thirty-three employees 

work at the mine, producing approximately 250 tons of coal per day 

and 80,000 to 90,000 tons per year. 

There is nothing o,n the record which would indicate that any 

penalty assessed herein would have an adverse effect on Respondent's 

ability to remain in business. MSHA's proposed assessment form 

indicates that Applicant had no relevant history of prior assessed 

violations. 

Citation No. 00391338 

The inspector issued Citation No. 00391338 on June 1, 1978, 

citing a violation of 30 CFR 77.1605(a). He described the relevant condition or practice as follows: "The left cab window in 

the Trojan Front-end loader, Model 254 (Company No. 22), was 

broken and shattered. The loader was in operation at the loading 

tipple." The window was replaced within the time set for abatement by the inspector. The inspector testified that the operator 

took immediate action, thereby demonstrating good faith. 

Section 77.1605(a) requires that cab windows shall be in good 

condition and shall be kept clean. Both Inspector Walker and Jim 

Beam, manager of the McCurtain No. 2 Mine, testified that the left 

cab window of the front-end loader had been broken. The inspector 

added that dust had gathered on the window. This uncontradicted 

testimony-- that the windshield was broken and dirty-- established 

that a violation of section 77.1605(a) existed as alleged. 

The operator was negligent in that this condition was readily 

observable, yet no corrective action was taken prior to the issuance 

of the citation. 

It was improbable that this condition would result either in 

accident or injury. Although he testified that 90 percent of 

the windshield had shattered, the inspector admitted that. a collision was unlikely. The front-end loader transported waste material 

between the tipple and a dump, a distance of approximately 100 feet. 

It operated 5 days per month, making four or five trips per day. 

It was unlikely .that another vehicle would be operating at the same 

time in this area. The inspector observed coal haulage trucks at 

the tipple but noted that they did not cross the front-end loader's 

path. The inspector also admitted that injury would be improbable 

even if an accident were to occur. 

Citation No. 00391340 

Inspector Walker issued Citation No. 00391340 on June 13, 1978, 

again citing a violation of 30 CFR 77.1605(a). He described the 

2127 
relevant condition or practice as follwos: "The No. 12 servicetruck front -cab -window was broken and shattered. The truck is 

used to service the equipment in the pit areas." The operator 

abated the condition within the time set by the inspector for 

abatement, thereby demonstrating a normal degree of good faith. 

As noted above, section 77.1605(a) requires that cab windows 

shall be in good condition. Both Inspector .Walker and Mr. Beam 

testified that the window directly in front of the driver's seat, 

was broken. This condition was in violation of section 77.1605(a). 

The operator was negligent in its violation of the mandatory 

standard. The condition was readily observable, yet the operator 

did not take steps to replace the window prior to the issuance of 

the citation. 

It was improbable that the condition would lead to an accid.ent 

or injury. The cracks in the windshield were on the driver's side 

of the vehicle. The inspector testified only that the vision of the 

driver would be obstructed. Mr. Beam testified, on the other hand, 

that the window had six to eight cracks in it, and that the vision 

of the driver was unobstructed. It is found that the cracks in the 

windshield slightly interferred with the driver's vision. Because 

the vehicle was used primarily between the hours of 4 p.m. and midnight, the likelihood that an accident would occur was further 

reduced. Other vehicles were not operated on a regular basis when 

the service truck was in use. The inspector testified that he 

observed the vehicle in operation between the shop and pit during 

regular working hours. Mr. Beam testified that it only did so when 

emergency repairs were necessary. The inspector testified that the 

vehicle traveled very slowly. Therefore, even if an accident were 

to occur, the injury expected to result, if any, would be 

nondisabling. 

Citation No. 391341 

The inspector issued Citation No. 391341, on June 14, 1978, 

citing a violation of 30 CFR 77.400(a). He described the relevant 

condition or practice as follows: "The drag drum mechanism on the 

2400 Lima Drag line operating at the Pit No. 002 was not provided 

with a guard to prevent contact of the exposed moving machine-parts 

which may cause injury to persons." The condition was corrected 

within the time set by the inspector for abatement, thereby demonstrating a normal degree of good faith. 

Section 77.400(a) requires that moving machine parts which 

may be contacted by persons and which may cause injury to persons 

shall be protected. In this instance, the upper half of a drag 

drum was unprotected. This drum was located within the outer body 

2128 
of the dragline. The inspector testified that a person on the walkway 

inside the body of the dragline would be standing within 4 inches of 

the drum. This testimony was contradicted by that of Mr. Beam who 

stated that a person would be approximately 30 inches away from the 

drum. Despite this inconsistency, the testimony of both witnesses 

established that a person could make injurious contact with the moving 

drum. The condition was, therefore, in violation of the mandatory 

standard. 

The operator was negligent in its failure to guard the drum. 

The condition was readily observable, but steps were not taken to 

guard the drum until after the issuance of the citation. 

It was probable that this condition would lead to an accident. 

The inspector observed one of Respondent's employees--presumably the 

oiler--inside the dragline. Mr. Beam testffied that the oiler who 

was normally on duty inside the machine while it was in operation had 

been instructed to use the outside walkwaf to get from·one part of the 

machine to the next. It was not established that he complied with 

these instructions, and there was nothing to prevent him from using 

the inside walkway for this purpose. It was not established that this 

oiler did not pass on the walkway, alongside the drum, in the course 

of his duties. If an accident were to occur, permanently disabling 

injury would be expected to result. 

ASSESSMENTS 

In consideration of the findings of fact and conclusions of law 

in this decision, based on evidence of record, the following assessments are appropriate under the criteria of section llO(i) of the 

Act: 

Citation No. 

00391338 

00391340 

00391341 

ORDER 

Penalty 

$ 50 

50 

150 

The Respondent is ORDERED to pay the amount of $250 within 

30 days of the date of this decision. 

Forrest E. Stewart 

Administrative Law Judge 

2129 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520°B LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. YORK 79-58-M 

Petitioner A/O No. 30-00989-05002 

v. 

Nedrow Plant 

W. F. SAUNDERS & SONS, 

Appearances : 

Before: 

Respondent 

DECISION 

Jonathan Kay, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Sherman v. Saunders, Jr., Nedrow, New York, for Respondent• 

Administrative Law Judge Melick 

This case is before me upon a petition for assessment of civil penalty under section llO(a) of the Federal Mine Safety and Health Act of 

1977 ( 30 u. s.c. § 801 et ~·, hereinafter referred to as the "Act~'). On 

August 20, 1979, Petitioner filed a proposal for assessment of civil penalty, for an alleged violation on March 21, 1979, of mandatory safety 

standard 30 CFR 56.2-3(a), charging that Respondent's shop and adjacent 

storeroom were in a cluttered condition. In its notice of contest filed 

August 31, 1979, Respondent challenged the jurisdiction of Petitioner to 

inspect and to cite violations in this shop and storeroom. A hearing was 

held in Syracuse, New York, on November 21, 1979, at which the parties 

appeared and presented evidence. 

The issues in this case are (1) whether Petitioner, the Mine Safety and 

Health Administration (MSHA), has jurisdiction under the Act to inspect and 

to cite violations in Respondent's truck shop and storeroom, and, if so, (2) 

whether Respondent has violated the provisions of the Act and implementing 

regulations as alleged in the petition for assessment of civil penalty filed 

herein, and, if so, (3) the appropriate civil penalty to be assessed for the 

alleged violation. Respondent concedes in this case that if MSHA had jurisdiction over his truck shop and storeroom then he was admittedly in violation of the cited standard. 

2130 
r. Jurisdiction 

The essential facts are not in dispute. Respondent operates a sand and 

gravel pit in Nedrow, New York, and, a few miles away, operates a preparation plant for the crushing, cleaning and sorting of the sand and gravel, 

a concrete plant where the sand is mixed with cement and the truck shop and 

storeroom at issue. The storeroom, about 30 feet wide and 100 feet long, 

is used primarily to store new replacement parts for the operator's trucks 

and conveyor systems. James Woods, plant superintendent, conceded that the 

truck parts stored therein could be, and were in fact, used for the belly 

dump trucks, the trucks used to haul sand and gravel from the pit area to 

the preparation plant. Woods also conceded that the rollers and electric 

motors stored therein could be, and were in fact, used on the conveyor 

system in the sand and gravel pr.eparation plant. Woods did not deny that 

certain screens described by the inspector were in the storeroom at the time 

of the cited violation and admitted that such screens could only have been 

used in the sand and gravel preparation plant. Woods emphasized, however, 

that most of the parts in this storeroom were used in connection with the 

cement plant and for the "10 wheeler" trucks, not used in the pit operation. 

The parties have stipulated that Respondent's operations affect interstate commerce and there is no disagreement that sand and gravel are 

"minerals" for purposes of the Act. MSHA's jurisdiction over the storeroom 

in question thus depends on whether that area comes within the definition 

of "mine" as set forth in the Act. Section 3(h)(l) of the Act, as relevant 

herein, provides as follows: 

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

which minerals are extracted in non-liquid form or, if in 

liquid form, are extracted with workers underground, (B) private ways and roads pertinent to such area; and (C) lands, 

excavations * * * and workings, structures, facilities, 

equipment, machines, tools, or other property* * * on the 

surface or underground, used in, or to be used in, or resulting from~ the work of extracting such minerals from their 

natural deposits.in non-liquid form*** or used in, or to 

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

preparing coal or other minerals * * *· 

Commenting on this definition, the Senate Human Resources Committee in 

the report on Senate Bill 717, which was the basis for the 1977 Act, stated 

that: 

[I]t is the Committee's intention that what is considered to 

be a mine and to be regulated under this Act be given the 

. broadest possibly [sic] interpretation, and it is the intent 

2131 
of this Committee that doubts be resolved in favor of 

inclusion· of a facility within the coverage of the Act. [_!/] 

In this regard a preparation plant for the processing of sand and gravel has 

been found to be within the jurisdiction of the Act as a mineral preparation 

facility. Cf. Secretary of Labor v. Stoudt's Ferry Preparation Company, 

602 F.2d 58-g-(1979). 

In the case at bar, it is undisputed that at least some of the equipment and machinery kept in the storeroom was to be used in the belly trucks 

used to haul sand and gravel from the pit area, where it was extracted, to 

the preparation plant and that at least some of the rollers kept in the 

storeroom were to be used in the sand and gravel preparation plant. There 

can no question then that this equipment and machinery was to be used in 

the work of extracting sand and gravel from their natural deposits and to 

be used in the work of milling or preparing the sand and gravel in the 

preparation plant. I have no difficulty in finding therefore, that the 

"structure" and "facility" at issue herein, the storeroom in which such 

equipment and machinery was kept, similarly was "used in" and "resulted 

from" the work of extracting the sand and gravel from its natural deposits, 

and in the work of milling or preparing the sand and gravel in the preparation plant. It is immaterial that some of the equipment and machinery, or· 

even most of it, may have been used in areas that may not have been under 

MSHA's jurisdiction. It is of course also immaterial for purposes of this 

decision that an MSHA inspector may have expressed an opinion that the subject storeroom was not within MSHA's jurisdiction. Under all the circumstances, I find that the storeroom in question is subject to MSHA's 

jurisdiction under the Act. 

II. The Alleged Violation and Penalty 

The citation at bar charged a violation of 30 CFR 56.2-3(a) which 

requires that work places, passageways, storerooms, and surface rooms be 

kept clean and orderly. Specifically, the uncontradicted evidence shows 

that when the citation was issued the storeroom was cluttered, with sundry 

equipment and machine parts strewn about the floor. The passageway was 

obstructed and a tripping hazard existed. MSHA inspector Robert 

Kinterknecht had previously warned Superintendent Woods of cluttered conditions in the storeroom and had asked him to clean it up. Woods admitted 

that he was aware of t:he problem but claimed that the person in charge of 

area maintenance had been absent from work. The inspector thought it probable that a man could trip over the objects on the floor, but that the 

potential injuries would not be serious or fatal, resulting in only 1 or 

2 days of lost work. The evidence shows that the condition was corrected 

"well within" the specified time for abatement. 

lf Senate Report 181, 95th Cong., 1st Sess. 1, 14, reprinted in U.S. Code. 

Cong. and Admin. News, 3401, 3414 (1977). 

2132 
The operator in this case is small in size and had three previous 

unrelated violations (on September 13, 1978), with penalties totaling $90. 

As previously noted, Respondent does not take issue with the fact of the 

violation or the amount of the penalty assessed, assuming jurisdiction under 

the Act. Under all the circumstances and considering the evidence presented 

in light of the criteria set forth in section llO(i) of the Federal Mine 

Safety and Health Act of 1977, I find that the penalty of $84, originally 

assessed in this case, is appropriate. 

Wherefore the Respondent is ordered to pay a penalty assessment of 

$84 within 30 days of the date of this decision. 

Distribution: 

Jonathan Kay, Esq., Office of the Soli 

Room 3555, 1515 Broadway, New York, 

or, U.S. De rtment of Labor, 

10035 (Certified Mail) 

Sherman v. Saunders, Jr., W. F. Saunders & Sons, Inc., Drawer "A," 

Nedrow, NY 13120 (Certified Mail) 

2133 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. HOPE 78-690-P 

A/O No. 46-01576-02021 

v. 

ITMANN COAL COMPANY, 

Itmann No. 3 Mine 

Respondent 

DECISION APPROVING SETTLEMENT 

AND 

ORDERING PAYMENT OF CIVIL PENALTY 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner; 

Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Cook 

A petition for assessment of civil penalty was filed pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977 (Act) in the 

above-captioned proceeding. An answer was filed and a prehearing order was 

issued. Subsequent thereto, various motions and related documents were 

filed requesting approval of a settlement and dismissal of the proceeding. 

The statements contained in these filings are set forth below. 

Information as to the six statutory criteria contained in section 110 

of the Act has been submitted. This information has provided a full disclosure of the nature of the settlement and the basis for the original determination. Thus, the parties have complied with the intent of the law that 

settlement be a matter of public record. 

ht agreed settlement has been reached between the parties in the amount 

of $229. The assessment for the al.leged violations was $310. 

The alleged violations and the settlement are identified as follows: 

Notice or 30 CFR 

Order No. Date Standard Assessment Settlement 

7-0056 4/12/77 70.lOO(b) $90 $ 9 

7-0139 7/22/77 75.200 220 220 

2134 
The initial motion to approve settlement and dismiss was filed by the 

Petitioner on January 2, 1979, proposing to settle Notice No. 7-0056, 

April 12, 1977, 30 CFR 70.lOO(b) (alleged respirable dust violation) for 

$9 and Order No. 7-0139, July 22, 1977, 30 CFR 75.200 (alleged roof violation) for $110. On January 31, 1979, an order was issued indicating that 

the proposed settlement for the alleged respirable dust violation could be 

approved 1/, but that the information contained in the record was insufficient for-purposes of determining that the public interest would be adequately protected by approval of the settlement for the alleged roof violation. Accordingly, the request for approval of settlement was denied. 

The motion set forth the following reason in support of the settlement of 

the alleged respirable dust violation: "l. The respirable dust standard 

violation * * * is covered by the blanket agreement approved by Judge Kennedy 

in May of 1978." 

The Petitioner filed its second motion for approval of settlement on 

July 19, 1979, reiterating the previously submitted settlement proposal for 

the alleged respirable dust violation, but proposing to settle the alleged 

roof violation for $220. On September 12, 1979, an order, similar to the 

January 31, 1979, order, was issued denying the Petitioner's request for 

approval of s,ettlement. 

Since the alleged roof violation has been the sole impediment to a disposition of this case short of an evidentiary hearing, it is appropriate to 

set forth the allegations pertaining to it contained in the petition for 

assessment of civil penalty. The order of withdrawal, a copy of which 

accompanied the petition, states the following: 

Loose, inadequately supported roof and loose overhanging 

brows were observed at numerous locations along the sugar 

run track haulageway from survey station spad 3977 inby 

for approximately 650 feet to an area near station spad 

4260. Several areas along the above-mentioned haulageway were observed where bolt spacing exceeded 10 feet 

and some of the installed bolts were inaffective due to 

sloughing. The ribs in three fallen areas were not supported. Numerous crossbars (6 inches by 8 inches by 

varying lengths) installed in the affected area were 

broken and/ or sagged (to what appeared to be a maximum 

load) due to excessive weight. Four men were working 

approximately 200 feet inby the beginning of the 

affected area and the operator stated that they had 

closed the area for rehabilitation purposes; however, 

no danger signs were observed and the conditions were 

not listed in the preshift examiner's book on this date. 

On October 5, 1979, the Respondent filed a motion to approve settlement 

and dismiss stating, in part, as follows: 

];,/ The attached copy of a decision in Secretary of Labor, Mine Safety and 

Health Administration v. Consolidation Coal Company, Docket No. MORG 78-339-P 

(September 29, 1978) sets forth the reasoning for such settlement approval. 

2135 
1. On or about December 28, 1978, the original motion 

to approve settlement was filed by MSHA. On January 31, 

1979, the Judge issued a decision disapproving the proposed 

settlement. Since then the parties reviewed the entire matter in light of the Judge's disapproval. They believed that 

a second proposed settlement would have been an appropriate 

disposition of the case. However, they recognized that 

reasonable men might differ and there might be more than one 

proper disposition for any case. Therefore, on July 18, 1979, 

a different settlement was proposed. 

The Judge, in his decision disapproving the original proposed settlement, stated that the proposed settlement of the 

alleged violation of 30 CFR 70.lOO(b) could be approved as 

proposed. Therefore, the second motion dealt only with the 

settlement of the alleged violation of 30 CFR 75.200. The 

Judge disapproved the second settlement on September 12, 1979. 

This, the third proposed settlement of the alleged-violation of 75.200 is for $220, i.e., 100 percent of the amount 

proposed by the Office of Assessments. 

2. This amount is proper. (At any hearing the operator 

would produce testimony that only men working to correct the 

condition went. inby the beginning of the affected area.) 

MSHA could produce no testimony to the contrary. The inspectors who signed the Order would testify that the miners they 

observed inby were working to correct the condition. 

3. Respondent is a large operator. 

4. Payment of the proposed assessment will have no 

effect on Respondent's ability to remain in business. 

5. Respondent's history of previous violations has been 

submitted in prior proposals by MSHA. 

6. Respondent demonstrated good faith in attempting to 

achieve rapid compliance. 

7. The alleged violation was the result of ordinary 

negligence. 

8. The alleged violation was not serious under the 

circumstances. 

9. The previously submitted Proposed Assessment and 

Inspector's Comment Sheets are hereby incorporated by 

reference. 

NEW MATTER 

10. The mine was on vacation from July 3, 1977, through 

July 17, 1977. 

2136 
11• Shortly after vacation, management became aware of 

the roof and rib conditions in the general area from spad 

3977 through spad 4260 along the Sugar Run Track Haulageway. 

Management does not agree that the entire area presented a 

problem. There were only a few areas where work had to be 

done. 

12. Management closed what it considered to be the 

affected area on or about July 19, 1979. No persons except 

those authorized by the operator to enter the place to work 

at eliminating the condition traveled into the subject area. 

13. A plan was posted describing the rehabilitation work 

being done. 

14. On Wednesday, July 20, 1979, Inspector Sammy Bell 

inspected the Itmann No. 3 B Mine. Before the inspector 

went underground, Superintendent Glen Blankenship informed 

him that an area of the Sugar Run Track Haulageway had been 

closed for repairs. Only experienced and certified people 

were working in the area under the supervision of a certi-· 

fied foreman. The track was closed not being used [sic] for 

any reason. Inspector Bell and Lee Stewart, mine foreman, 

traveled to the subject area. When he returned to the surface, Mr. Bell discussed the situation with Superintendent 

Blankenship and Mine Foreman Stewart. Inspector Bell stated 

that he knew the area was closed and work was already being 

performed to rehabilitate the area. However, Mr. Bell said 

that he intended to discuss the situation with the MSHA roof 

control experts at his office. Inspector Bell left the mine 

without issuing any notices or orders in the subject area. 

15. Two days later, on Friday, July 22, 1977, Inspector 

Bell returned to the mine followed by Inspectors Charles 

Hambric and Hubert McKinney. All inspectors were told by 

Superintendent Blankenship that the area was closed and that 

work was already being performed to correct the condition. 

The three inspectors, Superintendent Blankenship and Mine 

Foreman Stewart traveled to the subject area. After observing 

the subject area for about thirty (30) minutes the Inspectors 

verbally issued a closure order. They came to the surface 

and after calling their MSHA supervisor, wrote the subject 

104(a) Order. 

16. The allegation that men were working two hundred 

(200) feet inby the beginning of the affected area is totally 

false. The operator had already rehabilitated the first 

two hundred (200) feet of the area to the point where the men 

were working. A difference of opinion arose as to whether 

more work was needed on certain brows found outby where the 

men were working. 

2137 
17. There were no other crews working anywhere near the 

area of the mine. 

18. Since the operator had complied with the roof control plan by posting a plan for the rehabilitation work, it 

did not feel that hanging a danger sign and making an entry 

in the pre-shift examination book were necessary. MSHA agreed 

with this argument at the time or they would have issued an 

additional notice of a violation of 30 C.F.R. Section 75.303. 

19. Respondent strenuously contends that a violation of 

Section 75.202 may have existed but that alleged violation was 

certainly not an imminently dangerous condition as evidenced 

by the fact that Inspector Bell himself permitted the same 

conditions, practices and procedures to exist for over 

two (2) days from the time he first observed them. 

Paragraph Nos. 2, 3, 4, 5, 6, 7 and 9 merely restate the justifications 

advanced by the Petitioner in its July 19, 1979, motion. In paragraph No. 8, 

supra, Respondent classifies the alleged violation as "not serious under the 

circumstances," whereas the Petitioner's July 19, 1979, motion classified it 

as "moderately serious in the circumstances." 

On October 18, 1979, the Petitioner filed a motion requesting that the 

Respondent's settlement motion be approved, stating, in part, as follows: 

The Respondent, Itmann Coal Company, has moved that 

§104(a) Order of Withdrawal No. 1 SRB/HM/SRB (7-0139) which 

issued on July 22, 1977, citing 30 CFR 75.200, be approved by 

Respondent's payment of $220.00 (which amount was received by 

the Office of Assessments on August 7, 1979). The payment is 

in the same amount as that proposed by the Assessment Officer, 

see Form A0-2lc attached, which shows the points assessed pursuant to 30 CFR 100.3 in each of fifteen categories by which 

the proposed civil penalty of $220.00 was determined. The 

Office of the Solicitor by reference adopts the allegations 

and attachments contained in its previous two motions for 

approval of settlement, which show the Respondent is a large 

operator, payment will have no effect on its ability to 

remain in business, that there have been 478 previously paid 

violations and 34 paid·30 CFR 75.200 violations, that a 

normal degree of good faith was demonstrated in abating the 

condition after the order of withdrawal issued, that the violation was the result of ordinary negligence, and, in view 

of the fact that the area had been closed, that the violation was only moderately serious. 

The Office of the Solicitor notes the new material submitted by the Respondent and deems it additional reasons why 

the settlement in the amountof $220.00 should be approved as 

being a reasonable amount under the facts shown. 

2138 
On November. 27, 1979, an order was issued noting that the last· paragraph in the above-quoted passage appeared to be an adoption of the "new 

matter" submitted by the Respondent on October 5, 1979. 

The order stated that: 

[i]f the Petitioner intends this as an adoption, then the 

Petitioner is ORDERED to file with the undersigned Administrative Law Judge, within 20 days of the date of this order, 

an affirmative statement that it adopts the "new matter" submitted by the Respondent on October 5, 1979, as an accurate 

statement of facts and as additional reasons in support of 

the proposed settlement. 

On December 5, 1979, the Petitioner responded to the November 27, 1979, 

order as follows: 

The undersigned attorney on behalf of the Mine Safety 

and Health Administration (MSHA) responds to the Order that 

MSHA either expressly adopt or reject the various Respondent's "new matter" quoted in the Order as follows: 

1. The Order quotes a statement by the Petitioner reading, "The Office of the Solicitor notes the new material submitted by the Respondent and deems it additional reasons why 

the settlement in the amount of $220 should be approved as 

being a reasonable amount under the facts shown." This 

statement was intended only as acknowledgement that at a hearing Respondent's witnesses would testify as alleged in support of the allegations designated by the Respondent as "new 

matter", so it is appropriate to consider in approving settleinent. The Petitioner had already stated its position in 

two motions to have the settlement approved, and had indicated in a telephone conference call that there was little 

more it could offer. The Respondent at that time offered to 

reveal its position and subsequently by the "new matter" did 

so. 

2. Federal Coal Mine Inspectors Charles D. Hambric, Jr., 

and Herbert (not Hubert) McKinney have each communicated by 

telephone more than once with the undersigned attorney and we 

have discussed in depth the quoted material in the above mentioned Order, and the undersigned attorney has read to each 

Inspector the Response to each statement and MSHA's comment 

which the Inspectors have agreed is, in their respective 

opinion, true. Sammy R. Bell is a former Federal coal mine 

inspector no longer employed by the Federal Government. 

Mr. Bell is believed to reside in Crab Orchard, West Virginia, 

and so he should be available as a witness in response to an 

appropriate subpoena. Nevertheless, since Mr. Bell is not a 

2139 
present employee of MSHA, the Office of the Solicitor has at 

present only office records and the recollection of Messrs. 

Hambric and McKinney and other MSHA personnel to develop 

Mr. Bell's position concerning the issuance of the subject 

order of withdrawal. 

3. Brief Statement of Facts: (According to Inspectors Hambric and McKinney): There had been a substantial 

unplanned roof fall in the underground bituminous coal mine 

and Respondent's personnel, as a result, had hauled away a 

substantial amount debris. The area was along a rail haulageway used, or to be used, at least after the unplanned 

roof fall as a haulageway for supplies only. Inspector Bell 

had briefly observed the beginning of the area where the 

unplanned roof fall has occurred [sic] a few days prior 

to July 22, 1977 (the day the subject order of withdrawal 

issued), and had been concerned with the manner in which 

the roof had been and was planned to be rehabilitated. 

There appears to have been a discussion between former 

Inspector Bell and unknown Management personnel in which 

the latter justified the roof rehabilitation plan posted 

for the reasons that only supplies would be hauled on the 

travelway and miners had verbally been ordered to stay out 

of the area. Mr. Bell took no action at that time based 

upon his cursory view of the scene, but obviously he was 

concerned because he, upon returning to the MSHA Office, 

through office channels, requested a roof control specialist 

be assigned to return with him to the mine while an inspection was made of the entire area affected by the unplanned 

roof fall. In response to former Inspector Bell's request, 

Mr. Hambric and Mr. McKinney (roof control specialists) 

returned with Mr. Bell to the mine on July 22, 1977, where a 

careful inspection of the entire area taking several hours 

(not thirty minutes, as suggested by the Respondent) was 

made by the three inspectors. The Inspectors are looking 

for, but have not located, a mine map which would show the 

distance of the area affected by the roof fall but suggests 

that as much as 1,000 feet was involved. The Inspectors were 

alarmed to observe that there was a power center at the rear 

of the area where the roof was substandard. Under certain 

conditions mine personnel must go to the power center to 

inspect equipment and possibly reset breakers and perform 

other services. True, the power center can be reached by 

traveling in a long loop so it can be entered from the rear, 

but this route is so much longer and more difficult than 

passing under the area where the roof was substandard that 

all three MSHA inspectors were concerned that mine personnel 

would use the haulageway to reach the power center instead 

of using the haulageway only to haul supplies as the Mine 

Operator insisted it would be used. The Respondent was only 

2140 
opening up the area by removing debris and taking down roof 

where necessary so track haulage equipment could pass, 

insisting that that was all that was necessary since the 

area would only be used to haul supplies. The three inspectors required that loose brows be supported by roof bolts or 

taken down, and other work, as described in the order of withdrawal, be done. We emphasize that Mr. Bell had not previously inspected the area, other than superficially, before 

the three inspectors on July 22, 1977, went over every bit of 

it. The three inspectors were unanimous in the opinion that 

the roof and rib conditions observed by them during the 

inspection constituted an imminent danger. The area had 

not been posted with a danger sign although the miners had 

verbally been told to stay away from the area unless authorized to work on the roof rehabilitation. The three inspectors verbally issued a §104(a) order of withdrawal after 

completing their inspection. Then, the inspectors returned 

to the surface where a discussion was had with mine personnel 

who, although recognizing that the roof presently posed a 

danger, were of the opinion that the verbal orders issued to 

prevent employees from entering the area were adequate and no 

danger sign need be posted, and Management was of the opinion 

that its posted plan to rehabilitate the area was sufficient. 

The Inspectors and MSHA take the position that, since the 

roof and ribs were admittedly inadequately supported, there 

was a violation of 30 CFR 7 5. 200 in the absence of dangering 

off the area. A verbal order to prevent entrance to the area 

is only effective as to miners who hear the order, so a 

physical sign is necessary warning.miners to stay away. In 

this connection, the two Inspectors (Messrs. Hambric and 

McKinney) agree that an experienced miner should have been 

able to look at the mine roof after the fall and know enough 

not to continue under it. The witnesses agree that the roof 

control plan to rehabilitate the area was posted as required 

by the roof control plan whenever there had been an unplanned 

roof fall; however, MSHA is uncertain as to the relevancy of 

this fact since the Respondent has not been charged with 

violating this part of the roof control plan. 

MSHA' s Position on Ead \!legation Under "New Matter" and Our 

Comment: 

4. Responding to paragraph numbered ten of Respondent's 

Motion, Inspectors Hambric and McKinney state they have no 

exact recollection but the allegation is probably true. 

COMMENT: A miners' vacation is normally taken about 

this time of the year. 

5. Concerning paragraph numbered eleven of Respondent's 

Motion, the Inspectors agree that the allegations therein are 

2141 
true except the two MSHA employees consider that several areas 

rather than "a few areas" had to have work done, and refer to 

the order of withdrawal for a description of what had to be 

done. 

COMMENT: The difference of opinion appears to be a difference of opinion as to whether the area had to be made safe 

for pedestrian traffic or merely safe as a haulageway for supplies. There does not appear to be much difference between 

the parties as to the physical condition of the area, merely a 

difference of opinion among experts as to what was needed to 

be done. 

6. Concerning paragraph nmnbered twelve, HSHA agrees that 

Management had verbally ordered that no one except authorized 

personnel enter the area, and we do not know when or how that 

order issued, so the allegations are true. 

COMMENT: The area had not been dangered off and MSHA 

urges that, in view of the dangerous condition of the roof 

and ribs, a danger sign must be posted to prevent a violation 

of 30 CFR 75.200. Furthermore, MSHA is concerned that the 

verbal order would not preclude persons from approaching the 

power station by traveling under the roof area under 

discussion. 

7. Concerning the allegation contained in paragraph 

numbered thirteen, as stated previously, MSHA agrees that 

such a plan was required after a roof fall and it had been 

posted. The allegation is true. 

COMMENT: Posting of such a plan would not be in lieu of 

posting a danger sign. 

8. Concerning the allegations in paragraph nmnbered 

fourteen of Respondent's Motion, because Mr. Bell is no 

longer a Government employee we were unable to discuss the 

matt~r with Mr. Bell. However, the allegations are supported in part by certain MSHA records, and we believe the 

allegations are probably true. 

9. Concerning the allegations in paragraph nmnbered 

fifteen, the two Inspectors are uncertain as to what day 

Mr. Bell first saw the area of the unplanned roof fall, but 

agree it could have been July 20, 1977. The three inspectors went over the entire area so it took several hours 

rather than thirty minutes. The other allegations in the 

paragraph are true. 

2142 
COMMENT: The reason the inspectors telephoned the MSHA 

office for advice was because, although they agreed the condition constituted an imminent danger, they were uncertain 

whether to follow through with what they had verbally told 

Respondent's personnel underground and issue a written 

§104(a) imminent danger order of withdrawal or instead to 

issue an order of withdrawal under §103(f) of the 1969 Coal 

Mine Act since there had been an unplanned roof fall which 

is an accident. The three inspectors were properly instructed by Mr. Bell's supervisor that where an inspector considers a condition of imminent danger exists, it is mandatory 

that a §104 (a) order of withdrawal issue even though the 

situation also meets some other provision of the Act (such 

as §103(f)). Thus, the three inspectors drafted and each 

signed and issued the subject order of withdrawal. 

10. Concerning paragraph numbered sixteen of-the Motion, 

the two inspectors insist that they observed four miners working approximately 200 feet inby the beginning of the area 

affected by the unplanned roof fall, so MSHA denies all but 

the last sentence of that paragraph. 

COMMENT: The Inspectors were dissatisfied with some of 

the work which Management considered completed, which would 

be the reason for the above.disagreement. The Inspectors 

observed loose bolts and loose brows (see order of withdrawal) 

and insisted the same be corrected. Management insisted that 

since the area would be used only to haul supplies, such work 

was unnecessary. 

11. The allegation in paragraph numbered seventeen of 

the Motion is true. 

COMMENT: Nevertheless, the two Inspectors were concerned that at some time miners may travel the haulageway to 

obtain access to the power center, so they insisted that 

places dangerous to pedestrian traffic in the area be 

corrected. 

12. Concerning paragraph numbered eighteen, MSHA agrees, 

as stated previously, that the required plan to rehabilitate 

the area where the unplanned roof fall had occurred had been 

posted. MSHA agrees that Respondent's personnel did 

sincerely believe that it was not necessary to post a danger 

sign and make an entry in the preshift examination book, but 

the opinion of Respondent's personnel was erroneous and contrary to law. MSHA denies the allegation or reasoning of the 

second sentence of paragraph numbered eighteen. 

2143 
COMMENT: Even though the conditions were less than an 

imminent danger, the fact that dangerous roof and rib conditions existed caused there to be a violation of 30 CFR 

75.200 since no danger sign was posted. This is true 

even though the condition was being corrected before the 

inspection. Concerning the second sentence of paragraph numbered eighteen, inspectors often have a choice of mandatory 

safety standards that can appropriately be cited as a result 

of a particular condition or practice observed, and sometimes 

an inspector will cite only the standard of standards most 

pertinent or best supported by what the inspector personally 

observed. Since the three Inspectors did not have personal 

knowledge as to when the mine roof fell, the Inspectors cited 

30 CFR 75.200 based on the conditions which each inspector had 

personally seen rather than the circumstantial evidence which 

would be required under the circumstances to support 30 CFR 

75.303. Furthermore, a 30 CFR 75.303 violation would not have 

been an imminent danger. The failure to cite 30 CFR 75.303 

is not evidence that the Inspectors did not consider that a 

danger sign must be posted. The Respondent's reasoning lacks 

validity. 

13. Concerning paragraph numbered nineteen, MSHA denies 

the allegations contained therein. 

COMMENT: Obviously Inspector Bell did not recognize 

that a condition of imminent danger existed when he observed 

the area earlier, but he did not proceed far enough into the 

area to recognize the potential of the problem. Mr. Bell 

merely saw enough to recognize that a MSHA mine roof control 

specialist should inspect the area, and then he left. Whether 

there was a 30 CFR 75.202 violation is not relevant to this 

proceeding. This is not a face area or near a face area, and 

even the administrative law judges are divided on the issue as 

to whether other than the first sentence of 30 CFR 75.202 

relates to a mine area other than "at or near each working 

face." There was a violation of 30 CFR 75.200 which requires 

that the roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of 

the roof or ribs. Obviously, Respondent recognized the roof 

and ribs in this area were inadequately supported or the verbal order requiring the miners to not enter without authorization would not have issued, but the area should have been 

dangered off so there is a violation of the mandatory safety 

standard. Considering the speed with which a loose brow can 

fall, we consider there was an imminent danger if pedestrian 

traffic were present, not otherwise. In this connection we 

note that the Respondent's personnel did assure the Inspectors ·that the area would only be used to haul supplies, but 

2144 
the Inspectors were not satisfied because of the location of 

the power center and required additional work to be done. 

14. The Office of the Solicitor suggests that $220.00 

is a reasonable amount to asses·s as a civil penalty for these 

reasons: 

a. The Respondent is correct that there is no imminent danger in the event there is no pedestrian traffic, and 

Respondent insists that the haulageway would only be used to 

haul supplies. 

b. MSHA inspectors admit that the power center can 

be reached by a route other than passing under the substandard roof. 

c. The Respondent was attempting to correct the 

condition before any inspector observed it. 

d. There was a question between MSHA experts and 

Management experts as to whether the work was being done 

properly; however, the fact that Inspector Bell had to obtain 

the aid of MSHA roof control specialists demonstrates that the 

problem was somewhat complicated and lent itself to a diffence 

of opinion among experts. 

e •. The Respondent was sincere in its erroneous 

belief that the verbal instructions to stay out of the area 

sufficed, without a dang.er sign. 

The reasons given above by counsel for the parties for the proposed 

settlement have been reviewed in con.Junction with the information submitted 

as to the six statutory criteria contained in section 110 of the Act. After 

according this information due consideration, it has been found to support 

the proposed settlement. It therefore appears that a disposition approving 

the settlement will adequately protect the public interest. 

ORDER 

.Accordingly, IT IS ORDERED that the proposed settlement, as outlined 

above, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that the Respondent be, and hereby is ASSESSED 

a civil penalty in the agreed-upon amount of $229. 

Since the Respondent has paid the agreed upon settlement amount of $220 

for the alleged violation of 30 CFR 75.200, IT IS FURTHER ORDERED that the 

petition for assessment of civil penalty be, and hereby is, DISMISSED as 

relates to such alleged violation. 

2145 
IT IS FURTHER ORDERED that the Respondent pay a civil penalty in the 

agreed-upon amo.unt of $9 for the alleged violation of 30 CFR 70.lOO(b) 

within 30 days of the date of this decision if such amount has not been 

paid to date. 

Law Judge 

Distribution: 

John H. O'Donnell, Esq., Office of the Solicitor, u.s. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

2146 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGIN IA 22203 

September 29, 1978 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

,;Docket No. MORG 78-339-P 

• A/O No. 46-01455-02001 

v. 

Osage No. 3 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

AND 

ORDERING PAYMENT OF CIVIL PENALTY 

Michael V. Durkin, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

Karl T. Skrypak, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Respondent. 

Judge Cook 

The Mine Safety and Health Administration (MSHA) filed a petition for assessment of civil penalty pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977 (Act) in the abovecaptioned proceeding. Subsequent thereto, MSHA filed a motion 

requesting approval of a settlement. 

Counsel for MS!μ stated in part as follows in its motion: 

2. MSHA submits the assessment file which contains 

the order of assessment, the notices of violation, the 

computer printouts, the notices of termination, and the 

inspector's statements f.:.r all of the violations alleged 

herein. 

3. Consolidation has already paid $9.00 for the 

violation of Section 70.lOO(b) on January 30, 1976 as 

part of a general settlement of all respirable dust 

cases. Said settlement was negotiated through the 

Office of the Solicitor. This penalty has already been 

paid. 

2147 
4. Consolidation Coal Company has agreed to pay 

$160. 00 ._ the full proposed assessment, for the violation 

of § 75.309 on March 17, 1976. 

Pursuant to an order of the Administrative Law Judge, information as to the six statutory criteria contained in section 110 of the 

Act was submitted. Thus, the parties have complied with the intent 

of the law that.settlement be a matter of public record. 

As stated by counsel for MSHA in the motion the settlement as to 

the notice of violation citing 30 CFR 70.lOO(b) is a part of a general 

settlement of many respirable dust cases. 

A settlement statement was filed by counsel for MSHA in a number 

of prior cases, one of which is entitled Secretary of Labor, Mine 

Safety and Health Administration (MSHA), v. Bishop Coal Company, 

Docket No. HOPE 76X459-P, setting forth some of the background of 

these cases and reasons for. a·pproval of settlement. These cases have 

a long history, some of which is alluded to in the settlement statement of MSHA which refers to the case entitled Eastern Associated 

Coal Corp. (On Reconsideration En Banc), 7 IBMA 133 (1976); Eastern 

A$sociated Coal Corp., 7 IBMA 152 (1976), and a later Department of 

the Interior Secretarial stay of that decision. (This stay was later 

dissolved by an order of the Secretary of the Interior.) 

In view of the background of these cases as ·reviewed in the 

above-described documents and the Board of Mine Operations Appeal's 

decisions referred to above, the actions of the Secretary of the 

Interior as relates to those decisions, the action of Congress in the 

passage of the Federal Mine Safety and Health Amendments Act of 1977, 

P.L. 95-164, and the stipulation for settlement, it is considered 

that it would be in the public interest, and in the interest of the 

parties hereto, to approve the proposed settlement. 

As relates to the proposed settlement concerning an alleged 

violation of 30 CFR 75.309, in view of the fact that the proposed 

settlement is in the same amount as the original assessment of 

penalty, thus constituting no reduction in penalty, and in view of 

the disclosure as to the elements constituting the foundation for 

the applicable statutory criteria, it appears that a disposition 

approving the settlement will adequately pro~ect the public interest. 

ORDER 

Accordingly, IT IS ORDERED that the proposed settlement as 

outlined above be, and hereby is, APPROVED. 

Counsel for MSHA states that the proposed settlement penalty as 

to the alleged violation of 30 CFR 70.lOO(b) has been paid. 

2148 
IT IS THEREFORE ORDEREL that Respondent within 30 days of the date 

of this decision pay the agreed upon perialty of $160 assessed in this 

proceeding as relates to the alleged violation of 30 CFR 75.309. 

Law Judge 

Date Is~ued: September 29, 1978 

Distribution: 

Michael V. Durkin, Ee;., ·25fi:ce of the Solicitor, Mine Safety 

and Health Administration, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

Karl T. Skrypak, Esq., Consolidation Coal Company, 

Consol Plaza, Pittsburgh, PA 15241 (Certified Mail) 

2149 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

•015 WILSON BOULEVARD · 

ARLINGTON, VIRGtNiA 22203 . 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GENERAL MATERIALS, INC., 

Respondent 

Docket No. DENV 79-315-PM 

A/O No. 34-0091.9-05001 

Portland Pit 

DECISION 

Appearances: Barbara G. Heptig, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, 75202 

for the Petitioner; 

Leroy Powers, Esq., 

Oklahoma City, Oklahoma, 73102 for the Respondent. 

Before: Judge Stewart 

Procedural Background 

The above-captioned proceeding is brought pursuant to section 110 

of the Federal Mine Safety and Health Act of 1977 (hereinafter, the 

Act) 30 u.s.c. § 820(a) (1978). The hearing in this matter was held 

on September 17, 1979, in Oklahoma City, Oklahoma. Petitioner called 

one witness and introduced five exhibits. Respondent called a single 

witness. Both parties waived the rights to submit posthearing briefs. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The two violations of mandatory safety standards at issue herein 

were alleged to have occurred at Respondent's. Portland Pit on 

July 26, 1978. Inspector Russell Smith observed the alleged violations during the course of a regular inspection and in both instances 

he issued a section 104(a) citation. 

The parties offered the following stipulations at the hearing: 

(a) The number of annual man hours worked at the Portland Pit 

in 1977 was 18,110, and 

2150 
(b) General Materials, Inc., has received no previous citations 

under the Mine Safety and Health Act of 1977. 

There is no indication on the record that any penalty assessed 

in this proceeding would adversely affect Respondent's ability to 

remain in business. 

Citation No. 00166186 

Inspector Smith issued citation No. 00166186 alleging a violation of 30 CFR 56.14-1. 1/ He described the pertinent condition as 

follows: "V-Belt drive on 1F3 stacker conveyor was not guarded to protect workers." The operator placed a guard over the V-belt drive 

within the time set for abatement by the inspector, thereby demonstrating a normal degree of good faith. 

The V-Belt drive observed by the inspector was located at the 

top of a conveyor. To reach this drive, a person would climb a 

4~or-5 foot ladder and proceed approximately 120 feet up a walkway 

adjacent to the conveyor belt. A double railing extended along the 

walkway. The bottom railing was 18 inches and the top railing 

was 42 inches above the walkway. 

Section 56.14-1 requires that drive pulleys and similar exposed 

moving machine parts which may be contacted by persons and which 

may cause inJury to persons shall be guarded. The condition at issue 

was in violation of the mandatory standard as alleged. Inspector 

Smith and Naaman Gentry, Respondent's plant manager, agreed that the 

pulley in question was unguarded. Moreover, the pinch point was 

located where the V-belt rotated over the pulley, 10 inches above 

and out from the top railing. A person could contact this pinch 

point and suffer injury. 

The respondent was negligent in that the condition was readily 

observable, but corrective action was not taken until after the 

issuance of the citation. 

It was improbable that this condition would result in an accident or inJury. Respondent's employees had occasion to work in the 

vicinity of the V-Belt drive only when repair or maintenance was 

necessary. The company rule on these occasions forbade work on 

conveyors or equipment when such machinery was in operation. Before 

such work was undertaken, a disconnect switch in the control tower 

1_/ 30 CFR 56.14-1 reads as follows: 

Gears; spockets; chains; drive, head, tailm and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and 

similar exposed moving machine parts which may be contacted by 

persons, and which may cause injury to persons, shall be guarded. 

2151 
was locked out. A second disconnect switch located rear the drive 

was also pulled. Since Respondent's employees were in the area 

only when the machinery was inoperative it was unlikely that the 

lack of a guard would result in an accident. If an accident were 

to occur, however, it coulo result in the severing of a hand or 

fingers. 

Citation No. 00166187 

The inspector issued Citation No. 00166187 alleging a violation 

of 30 CFR 56.ll-12. 2/ He described the pertinent condition as follows: 

"One stand for guardrail on dredge was broken leaving an area without 

protection." The operator replaced the broken stanchion within the 

time set by the inspector for abatement, thereby demonstrating a 

normal degree of good faith. · 

The guardrail or barrier at issue was comprised of a chain supported by stanchions which had been placed at intervals of 8 feet. 

Because the stand was broken, the chain was hanging at a height 

of 18 to 24 inches, 16 to 18 inches lower than it would have otherwise, for a distance of 16 feet. 

The guardrail and broken stand at issue were located along a 

walkway on the outer perimeter of a dredge. This walkway was used 

by the dredge operator when boarding and leaving the dredge. It was 

also used once every 2 weeks when the dredge was refuelod. 

Section 56.11-12 requires that openings near travelways through 

which men may fall shall be protected by railings or barriers. The 

condition was in violation of this mandatory safety standard as 

alleged. Because the. stanchion had been broken, the chain would not 

protect those who used the walkway from falling into the water. 

The operator was negligent in that the condition was known, yet 

corrective action had not been taken. The dredge operator told the 

inspector that repair efforts had already been contemplated. Even 

if mine management did not have actual knowledge, they should have 

known of the condition because it was visually obvious. The chain 

was hanging at a noticeably lower height. 

It is probable that this condition would result in accident. 

The operator of the dredge walked through the area on a daily basis 

to get on and off the dredge and he had occasion to work in the area 

at least one every two weeks while refueling the dredge. It is 

~/ 30 CFR 56.11-;2 reads as follows: 

Openings above, below, or near travelways through 

which men or materials may fall shall be protected by railings, 

barriers, or covers. Where it is impractical to install such 

protective devices, adequate warning signals shall be installed. 

2152 
unlikely that injury would result, however, if an accident were to 

occur. The inspector testified that an uninjured man would have no 

problem climbing back onto the barge. The dredge was stationery when 

in operation and there was no appreciable current in the pond. In 

addition, a company rule in effect at the time required that life 

jackets be worn to and from the dredge. Mr. Gantry testified that 

this rule was generally observed. 

ASSESSMENTS 

In consideration of the findings of fact and conclusions of law 

in this decision, based on evidence of record, the following assessments are appropriate under the criteria of section llO(i) of the Act: 

Citation No. 

00166186 

00166187 

ORDER 

Assessment 

$35 

30 

The Respondent is ORDERED to pay the amount of $65 within days 

of the date of the decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Barbara Heptig, Esq., Office of the Solicitor, U.S. Department 

of Labor, Suite 501, 555 Griffin Square Building, Griffin and 

Young St'reets, Dallas, TX 75202 (Certified Mail) 

Leroy Powers, Esq., 620 100 Park Avenue Building, Oklahoma City, 

OK 73102 (Certified Mail) 

2153 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

Civil Penalty Proceeding 

Docket No. PENN 79-24 

A/O No. 36-00823-03016 

Jane Mine 

KEYSTONE COAL MINING CORPORATION, 

Respondent 

DECISION 

Appearances: James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner, 

MSHA; 

Jerome H. Simonds, Esq., Freedman, Levy, Kroll and Simonds, 

Washington, D.C., for Respondent, Keystone Coal Mining 

Corporation. 

Before: Judge Merlin 

This case is a petition for the assessment of a civil penalty filed by 

the Mine Safety and Health Administration against Keystone Coal Mining 

Corporation. A hearing was held on December 13, 1979. 

At the hearing, the. parties agreed to the following stipulations 

(Tr. Vol I, 4-5)t 

(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. 

(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 properly 

served upon the operator. 

2154 
(6) Copies of the subject citation and termination of the violation 

at issue in this. proceeding are authentic and may be admitted into evidence 

for purposes of establishing their issuance but not for purposes of establishing the truthfulness or relevancy of any statements asserted therein. 

(7) The alleged violation was abated in good faith. 

(8) Imposition of any penalty in this proceeding will not affect the 

operator's ability to continue in business. 

(9) The operator is large in size. 

At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. Vol. I, 1-103). At the conclusion of the taking of evidence, the parties waived the filing of written 

briefs, propo32d findings of fact, and conclusions of law. Instead, they 

agreed to make oral argument and have a decision rendered from the bench 

(Tr. Vol. I, 103). A decision was rendered from the bench setting forth 

findings, conclusions, and determinations with respect to the alleged violation (Tr. Vol. II, 2-6). 

Bench Decision 

The bench decision is as follows: 

This case is a petition for the assessment of a civil 

penalty under Section 110 of the Act. The alleged violation 

is of 30 CFR 75.807. This mandatory standard provides: 

All underground high-voltage transmission cables 

shall be installed only in regularly inspected air 

courses and haulageways, and shall be covered, buried, 

or placed so as to afford protection against damage, 

guarded where men regularly work or pass under them 

unless they are 6-1/2 feet or more above the floor or 

rail, securely anchored, properly insulated, and guarded 

at ends, and covered, insulated, or placed to prevent 

contact with trolley wires and other low-voltage 

circuits. 

The citation sets forth, in part, that the 4160 volt 

high-voltage cable was not protected from damage nor was it 

guarded where persons were required to cross under it. At 

issue here is the provision in 75.807 that guarding be provided "* * * where men regularly work or pass under" the 

high-voltage cable. 

There is no dispute that the cable in question was high 

voltage within the purview of the mandatory standard. In 

addition, there is no dispute that the cable was 4 feet 

from the floor. During the course of the hearing, I 

earlier ruled that "regularly" modified both "work" and 

"pass under." I adhere to that ruling. 

2155 
The travelway in question, along which this highvol tage cable was hung, passes by two crosscuts identified 

as "C" and "D" on Respondent's Exhibit No. 1. The evidence 

shows that in crosscut "D," there was a supply car with some 

roof bolts and also some other junk in it. In crosscut "C," 

there were 15 posts. 

The inspector testified that he cited these areas as 

ones where men regularly worked or would pass under the 

cable because miners would go into these crosscuts to get 

the materials there. However, the operator's safety 

inspector testified that by the time the citation was 

issued, the working face had advanced 200 more feet beyond 

this area and that there were crosscuts further inby where 

posts arid other materials were stored. Accordingly, the 

operator's safety inspector testified that even if these 

crosscuts previously had been supply areas, they no longer 

were so. Moreover, the operator's safety inspector testified that on the day before the subject citation was issued, 

the inspector had traveled further inby the cited area past 

new crosscuts which now constituted present supply areas. 

I accept the testimony of the operator's safety inspector. 

It_appears, therefore, that at the time the subject 

citation was issued, the inspector actually knew that the 

areas cited here were not places where men working in the 

section would ordinarily go to get supplies. The Solicitor 

expressly admitted that the fact that the posts or other 

materials in crosscuts "C" and "D" might be obtained in an 

emergency or when other supplies ran out would not bring 

those crosscuts within the scope of the mandatory standard. 

In light of the foregoing, I conclude that men did not 

regularly work or pass under the high-voltage cable with 

respect to crosscuts "C" and "D." 

The high-voltage cable entered the transformer box in 

the crosscut identified as "B" on Respondent's Exhibit 1. 

I reject, as unpersuasive, evidence that either a man or a 

toolbox was in that crosscut on the day the citation was 

issued. No such contention is made in the citation itself. 

The allegation made at the hearing is belated and not probative. Men could conceivably go under the high-voltage 

cable to reach the transformer box, although this would be 

very unlikely because, as the operator's safety inspector 

testified, the cable was 4 feet off the ground at the 

entrance to this crosscut and then ran down to 2 feet from 

the ground where it entered the supply car in the crosscut. 

Even more importantly, the operator's safety inspector 

testified that although the transformer could malfunction, 

it rarely breaks down. I found the operator's safety 

inspector a persuasive witness. I accept his testimony. 

2156 
Based upon the testimony of the operator's safety 

inspector and upon his description that a breakdown in the 

transformer box is a rare occurrence, I find that men would 

not regularly work or pass under the high-voltage cable in 

order to reach the transformer box. Accordingly, I find 

that there was no violation of this mandatory standard with 

respect to crosscut "B." 

On the basis of the foregoing, the citation must be 

vacated. 

There is, however, another basis for vacating the citation. The mandatory standard requires that the high-voltage 

cable be guarded unless it is 6-1/2 feet or more above the 

floor. The inspector testified that at the dinner hole and 

other places, high-voltage cables are "additionally" guarded. 

However, no sample of a high-voltage cable was introduced 

into the record and there was no evidence from MSHA as to 

precisely how much or what kind of guarding is required by 

75.807. From the record MSHA has made before me, it does 

not appear what 75.807 requires of the operator in the form 

of guarding; whether the operator knows what these requirements are; whether any guarding was present here and, if so, 

why it did not satisfy the standard; and finally whether any 

requirment of additional guarding can be read into the standard. On this basis also, the citation would have to be 

vacated. 

In light of the foregoing, I conclude there was no violation. The citation is vacated, the Solicitor's petition 

is dismissed. 

The foregoing bench decision is hereby AFFIRMED. 

ORDER 

It is hereby ORDERED that Citation No. 229408 be VACATED and the instant 

petition be DISMIS::-~· ....,,,.~--~\ .. -~ 

Paul Merlin 

• 

Assistant Chief Administrative Law Judge 

Distribution: 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of 

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

PA 19104 (Certified Mail) 

Jerome H. Simonds, Esq., Freedman, Levy, Kroll and Simonds, 1730 K 

Street, NW., Washington, DC 20006 (Certified l1ail) 

2157 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520J LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 79-0029-P 

Petitioner A.O. No. 44-05007-03002 V 

v. 

Mine No. 1 

GRUNDY RED ASH COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

James H~ Swain, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, for the 

Petitioner; 

Terry L. Jordan, Esq., Grundy, Virginia, for Respondent. 

Judge Stewart 

The above-captioned civil penalty proceeding was brought pursuant to 

section llO(a) of the Federal Mine Safety and Health Act of 1977 (hereinafter, the Act), 30 u.s.c. § 820(a). The Petition for Assessment of Civil 

Penalty alleged two violations by Respondent. A hearing was. held on these 

matters in Grundy, Virginia, on September 26, 1979. Two exhibits were 

admitted in regard to Citation No. 318796 and two witnesses were called. 

Citation No. 00318796 had' previously been assessed at $600 and Citation 

No. 00318797 had previously been assessed at $500 by the MSHA office of 

assessments. 

Citation No. 00318796 issued on December 8, 1978, alleging a violation of 30 CFR 75.200. The inspector described the condition or practice 

at issue as follows: 

Roof bolts were being spaced 5 to 8 feet apart lengthwise and crosswise beginning at the faces of the No. 1, 2, 

and 3 entries and extending outby for a distance of 24 feet 

in the No. 1 entry, and 40 feet in the No. 2 and 3 entries of 

the 001 section. Mountain cracks were present in the No. 1 

entry and mine roof was being shot down by explosives in the 

No. 2 entry which was in a roll. The approved roof control 

plan requires that roof bolts be installed on 4 feet centers 

lengthwise and crosswise. 

2158 
A notice of subsequent action, issued on December 11, 1978, stated: 

"The mine was flooded by water during the weekend of December 9, and 10, 

1978, and had to be pumped before work could begin to abate this citatio~. 

Therefore more time is granted." 

The citation was terminated by a notice issued on December 18, 1978, 

which stated: "Roof bolt spacing in the No. 1, 2, and 3 entries of the 

001 section was reduced to 4 feet centers lengthwise and crosswide by 

installing addition roof bolts where required. 

Citation No. 00318797, issued on December .8, 1978, alleging a violation of 30 CFR 75.316, stated: 

Line brattice or other approved devices was not provided 

in the No. 1 entry which had been developed 66 feet, the 

No. 2 entry which had been developed 60 feet, and the No. 3 

entry which had been developed 40 feet from the last open 

crosscut's of the 001 section. The approval ventilation plan 

requires that line brattice or other approved devices be continuously used from the last open crosscut in crosscuts to the 

face of the 001 section. 

This violation was abated on December 11, 1978, by a notice of subsequent action stating: "Line brattice was installed from the last open 

crosscut of the No. 1, 2, and 3 entries of the 001 section to within 10 feet 

of the face of each place." 

The testimony regarding the financial condition of the mine along with 

the statutory criteria to be considered in the assessment of a civil penalty 

indicated that the operator was $150,000 in debt and had lost $300,000 on 

the mine. Some of the mine equipment had been repossessed and the mining 

of the 25 inch coal seam was unprofitable. After this testimony concerning 

the effect of a civil penalty on Respondent's ability to remain in business 

had been given, the part~es entered into further settlement negotiations and 

agreed upon the paymentof $300 for each violation. 

Petitioner moved on the record that the agreement be approved because: 

The operator's ability to continue in business would be questionable 

should the entire amount of the penalties originally assessed for the violations be affirmed and the Respondent ordered to pay. Although the operator 

was negligent and the gravity was high in both instances, Mine No. 1 was a 

small mine employing three or four men and producing only 8,750 tons of 

coal per year. The operator demonstrated good faith in abatement of the 

violation. 

At the conclusion of the hearing the settlement negotiated by the parties was approved by the Administrative Law Judge. The approval from the 

bench of the settlement agreement is hereby affirmed. 

2159 
ORDER 

The operator is ordered to pay MSHA the amount of $600 within 30 days 

of the date of this order. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Sidney Salkin, Attorney, Office of the Solicitor, U.S Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia PA 19104 (Certified Mail) 

Terry L. Jordan, Attorney for Respondent, P.O. Box 747, Grundy, VA 24614 

(Certified Mail) 

2160 
FEDERAL MINE SAFETY AND HEAL TH REVIEW -~OM MISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 8 !9-,q 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WILK 79-69-PM 

A.C. No. 06-00018-05001 

v. 

OTTAWA SILICA COMPANY, 

Petitioner 

Respondent 

Docket No. WILK 79-70-PM 

A.c. No. 06-00018-05002 

Lantern Hill Mine and Mill 

DECISION 

Appearances: Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner; 

Richard E. Blodgett, Division Manager, Ottawa Silica Company, 

Ledyard, Connecticut, for Respondent. 

Before: Administrative Law Judge Michels 

These proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a). The petitions 

for assessment of civil pe~alty were filed by MSHA in both dockets (WILK 

79-69-PM; WILK 79-70-PM) on January 18, 1979, and timely answers were filed 

by Respondent. The cases were heard on both docket numbers in Middletown, 

Connecticut, on October 18, 1979, at which both parties were represented. 

Docket No. WILK 79-69-PM involved 20 alleged violations. Docket No. 

WILK 79-70-PM involved two alleged violations. Evidence was received as to 

each citation and a decision was rendered from the bench. These decisions 

as they appear in the record, with certain necessary corrections or changes, 

are set forth below. 

Preliminarily, the Petitioner moved to withdraw its petition with 

regard to Citation No. 212903 (Docket No. WILK 79~69) because the citation 

was vacated. The motion was granted and the petition was withdrawn. Petitioner then moved to amend Citation Nos. 212894, 212895, 212904, 212906, 

and 212908 to read 56.12-30 instead of 56.12-2. The Respondent moved to 

dismis's those citations. The !'etitioner' s motion was denied and it moved 

to withdraw its petitions with respect to those five violations. The motion 

to withdraw the petition was granted and as to those citations the petition 

was dismissed with prejudice. 

2161 
Docket No. WILK 79-69-PM 

Citation Nos. 212896, 212898, 212899, 212900, 212907, 212909, and 212911, 

issued July 11, 1978 

The following is the bench decision on these citations found at 

pages 54-60; 79-82; 91-93; 102-104; 112-113; 123-124; and 139-142 of the 

transcript: 

Citation No. 212896 

This concerns Citation No. 212896. 

The inspector charged as the condition or practice: 

"Mandatory standard 56.12-32 was not being complied with in 

that the electrical cover plates were not replaced in storage 

building by shop." The standard cited reads: "Inspection 

for cover plates on electrical equipment and junction boxes 

shall be kept in place at all times except during testing 

or repairs." 

The first question is whether or not there has been a 

violation. I believe that the facts in this are practically 

undisputed. The evidence and the testimony shows that there 

was a cover plate missing on a particular junction box, as 

charged. Accordingly, I find a violation of mandatory standard 56.12-32 * * ~. 

First, as to the history of violations, a document has 

been received, P-36, which shows that for "the Lantern Hill 

Mine and Mill, the Ottawa Silica Company was assessed on a 

total of 24 citations in 1978. I will find that this is no 

appreciable history o·f past violations. I also note, in 

connection with this case * * * that 1978 was the first year 

that the law became applicable to this operation. 

The next criterion is the appropriateness of the penalty 

to the size of the operator. The evidence shows that in this 

operation there were 27 people or miners engaged in the work, 

and 65,000 tons of material were produced annually. 

Counsel for MSHA has indicated that this was a medium.-

sized company. He has presented no particular evidence by 

which I can.measure the difference between companies, but 

in the circumstances, I will find, at least for the purpose 

of these violations, that this is a small-to-medium size, 

and may well be a medium-sized company. 

No evidence was adduced that the penalties to be 

assessed here, or this penalty, will affect the operator's 

ability to continue in business. 

2162 
It was further stipulated that the operator abated this, 

as well as all the citations which will be considered in 

these dockets, rapidly and in good faith, and I so find. 

The fifth criterion would be with regard to gravity. 

Normally, the fact a cover is off from an electrical appliance 

or enclosure would be considered a serious violation. I will 

take into account the fact that the evidence shows that this 

receptacle or container was out of the practical reach of a 

miner standing on the floor. Of course, it is always possible for someone, under some circumstances, to stand on a 

chair or other object and to reach it. In the circumstances, 

however, I would find that it is slightly serious. 

The final criterion is negligence. In this case the 

evidence shows that prior inspections under the predecessor 

Act did not reveal the existence of this lack of a cover. 

The testimony further shows that it is in an out-of-the-way 

spot that would be easily overlooked. Furthermore, the 

inspector, while he did testify that the operator should 

have known, is, I believe, a little unclear in this regard. 

And his observations, made in his report, may even show the 

inconsistency. Accordingly, and in these circumstances, 

especially since this was the first inspection made under 

the new Act, I would find a small degree of negligence. 

The assessment is as follows: Taking into account the 

good faith and rapid compliance shown by the operator, the 

fact that this was the first inspection under the Act then 

recently made applicable to the operator, and the further 

facts that there were, as I have found, only a small degree 

of gravity as well as negligence, I will assess only a 

nominal penalty in this instance, which will be $10. 

That completes my decis.ion on this citation. 

(Tr. 54-60). 

Citation No. 212898 

This is the decision on Citation No. 212898. 

And if I didn't say so in the beginning, I should state 

here and now that all of these citations are in WILK 

79-69-PM. . 

The inspector charged as follows: "Mandatory standard 

56.12-32 was not being complied with in that the cover plates 

on the electrical equipment were not replaced in electric ' ,/ motor storage area." This charges the violation of the same 

mandatory standard as the previous citation, and I will not 

repeat the standard. 

2163 
Again, there is no dispute about the fact of the violation. The inspector has charged the lack of cover plates, 

and it was his testimony that there were two junction boxes 

involved. The evidence suggests that in the area there were 

three junction boxes, and there is no dispute that none of 

these had cover plates on them. And, moreover, there is no 

dispute about the testimony that there was no testing taking 

place at the time. 

And in light of these circumstances, and without repeating my previous remarks, but which are also applicable here, 

I find that in this citation there is a violation, as 

charged, of 30 CFR 56.12-32. 

It is unnecessary to repeat my findings as to the criteria that are generally applicable. I need find, in addition here, only specifically as to gravity and as to 

negligence. 

So far as the gravity is concerned, it appears to me 

that the seriousness is somewhat greater, in that, as 

pointed out by counsel, three junction boxes were involved. 

It is also shown that some of these junction boxes are out 

on the outside of the wall of the shed, and were accessible 

to a miner, which, in my view, would make it a more serious 

violation. 

Furthermore, at some point consideration should be given 

to the fact that there were relatively large numbers of 

similar conditions which have been charged in this proceeding. I could not take that into account in the first citation because there was no evidence as to other violations 

at that point. However, at this time it is beginning to 

show more of a picture of a failure to replace or to install 

cover plates on these junction boxes. I will take that into 

account. I will find, as to this citation, that it was 

serious. 

So far as negligence is concerned, my comments about the 

fact that the showing is now of a failure in a number of 

instances to have the cover plates installed, and thus I 

think would show somewhat more negligence than it was possible for me to find on the previous citation. Nevertheless, and iri spite of all that, I will continue to take into 

account the fact that the operator did show rapid good faith 

in compliance, and furthermore, and which I think is imporrant, that this was the first occasion in which the mine was 

'inspected under the Act recently made applicable. I think 

that is important as a mitigating circumstance because, in 

these circumstances, the mine and the operator is being for 

the first time advised precisely and concretely as to what 

the requirements are. 

2164 
Now, that's not a complete defense, because the law 

doesn't allow such a defense, but it is a mitigating circumstance, in my view. 

Taking all those factors into account, I will assess the 

penalty of $25 for this violation. 

That completes my decision on this citation. 

(Tr. 79-82). 

Citation No. 212899 

This is Citation No. 212899. 

The inspector found as the condition or practice as follows: "Mandatory standard 56.12-32 was not being complied 

with in that an electrical cover plate was not replaced in 

upper storage shed." 

The mandatory standard cited is the same as that previously quoted in the record, and I won't repeat that. 

The evidence presented shows that there was a violation 

of this mandatory standard in that in the upper storage shed 

an electric cover plate was either not replaced or missing. 

The operator does not dispute the evidence. Accordingly, 

I find that on this citation there was a violation of 

30 CFR 56.12-32. 

I need make findings on only two of the criteria which, 

are gravity and negligence, since the findings on the other 

criteria are applica~le to this citation also. 

Gravity. In this instance, since the testimony shows 

that the particular junction box was not readily accessible, 

in fact almost inaccessible, I find that there is a slight 

degree of gravity or seriousness. 

So far as negligence is concerned, the box was located 

in a relatively remote location. For that reason, ordinarily 

this would not be, in my view, a high degree of negligence. 

However, I do have to take into account that there is a pattern shown in this record of a number of such boxes. I 

agree with counsel that a thorough inspection should have 

revealed these violations or these conditions. 

Nevertheless, I still continue to take into account the 

.. fact that the operator did comply in good faith rapidly, and 

also the fact that this was an initial inspection under a 

newly applicable Act. It is true, of course, that the law 

was previously applicable under the old "Metal/Nonmetal" Act, 

2165 
but it did not carry the penalty. For such reason, I believe 

that the enforcement procedures may have been somewhat different, and that is the reason for my view that, in a sense, the 

operator was newly brought under an Act for which MSHA had 

adopted new procedures for enforcement. 

Under all these circumstances, I would find ordinary 

negligence. 

The penalty I will assess is, in this.instance, $20. 

That completes my decision on this citation. 

(Tr. 91-93). 

Citation No. 212900 

This is my decision on Citation No. 212900. 

The inspector charged as the condition or practice he 

saw: "Mandatory standard 56.12-32 was not being complied 

with in that the cover plate was not replaced on electrical 

equipment over Flour Bagger." I have previously quoted the 

standard referred to and I will not repeat that. 

As to the fact of the violation, the only evidence 

received shows that the cover plate was not in place, as 

alleged, on the box over the Flour Bagger. Accordingly, I 

find that there was a violation of 30 CFR 56.12-32. The 

prior findings on the points applicable have already been 

made and they would not be repeated here. They are applicable to this citation. 

As has been pointed out, this violation is very similar 

to the previous citation, and I will decide it on the same 

basis, and I will not repeat all of the comments that I have 

made there. 

I think this should be noted, however. I agree with 

counsel to an extent that as we proceed, a picture of a 

large number of violations seems to be emerging. However, 

I think it should be noted that these violations, so far as 

I can see, are all found on the same date. If the conditions were such that they were found over a period of time, 

I think it would be much more significant. I agree, however, 

that there is some significance in the large number, but not 

to the extent it would be had this been a continuous series 

of violations over a period of time. 

Accordingly, as to gravity, I find a slight seriousness, 

and as to negligence, ordinary negligence. 

2166 
Taking into account all the facts that I have previously 

mentione·d, I hereby assess the same penalty as I did for the 

previous citation, namely, $20. 

(Tr. 102-104). 

Citation No. 212907 

This decision is on Citation No. 212907. 

The condition or practice cited by the inspector was as 

follows: "Mandatory standard 56.12-32 was not being complied with in that the cover plates were not replaced on 

electrical equipment in dryer control room." The standard 

cited has been previously quoted. 

The evidence shows, and there has been no evidence to 

the contrary, that the cover plate was missing as charged. 

Accordingly, I find a violation of 30 CFR 56.12-32. 

As noted by counsel for MSHA, this violation is more 

serious than the others in that the electrical junction 

boxes were accessible, and there was more than one 

involved. I find, in the circumstances, it was a serious 

violation. For reasons previously stated, I find, in this 

instance, ordinary negligence. However, I do take into 

account in the assessment those factors previously mentioned 

as to other citations where applicable. 

In all the circumstances, I find and assess a penalty 

for this violation of $35. 

(Tr. 112-113). 

Citation No. 212909 

This is Citation No. 212909. 

The inspector charged as the condition or practice as 

follows: "Mandatory standard 56.12-32 was not being complied with in that the cover plates were not replaced on 

electrical equipment at dryer." I have already quoted the 

standard referred to and will not repeat it here. 

The evidence shows, and there has b~en no evidence to 

the contrary, that there was a violation as charged in this 

citation, namely, that a cover plate was not in place on the 

electrical equipment at the dryer. Accordingly, I find, as 

to this citation, a violation of 30 CFR 56.12-32, as charged. 

A finding as to the generally applicable criteria are 

incorporated with reference to this citation. 

2167 
On "gravity," it appears that this may not have been 

quite as serious a violation, due to the fact that the electrical box was relatively inaccessible. I will take that 

into account. Nevertheless, I find this to be a relatively 

serious violation. I include in this finding, however, my 

remarks previously made as to the gravity of these junction 

box violations. 

On "negligence," I also include my prior remarks. In 

general, it is the kind of violation which the operator knew 

or should have known about, and I find ordinary negligence. 

Taking into account the various considerations 

mentioned, I hereby assess the penalty for this violation 

of $25. 

(Tr. 123-124). 

Citation No. 212911 

This is the decision on Citation No. 212911. 

The inspector charged as the condition or practice as 

follows: "Mandatory standard 56.12-2 was not being complied with in that the electrical cover plates were not 

replaced on electrical equipment in hawk shed." It should 

be noted here that the inspector testified that citation 

56.12-2 was an error. The number "3" was omitted, and it 

should read, "56.12-32." 

This standard has already been quoted and will not be 

repeated here. 

The first question is whether or not there was a violation of the standard. I accept the evidence, there being 

nothing to the contrary, that this was an inactivated or 

deenergized circuit. It had no electricity in it, and, 

therefore, could not have harmed any miner. The issue, 

obviously, is the fact of violation, however, and whether 

that takes it outside of the standard. Counsel for MSHA 

contends that even though the circuit is inactive, the 

standard continues to apply, and Mr. Blodgett's safety 

director for the operator contends that it should not 

apply in such circumstances. 

It seems to me that the clear wording of the standard 

would make it applicable to a deactivated circuit. If the 

circuit is abandoned, as I understand it, it should be 

,removed, otherwise the standard does apply. I can appreciate that that may appear to be a strict interpretation--

perhaps it mighi: even be described as technical. However, 

I would note that we are here dealing with a number of 

2168 
instances in which electrical boxes have been removed and 

not replac.ed. Th.ere is, therefore, considerable reason to 

beiieve that had this circuit been reactivated, it would 

have been without the cover box. Thus, it is not as technical as it may seem. 

I do find, therefore, under those circumstances, that 

that standard is applicable, even to a circuit that is 

temporarily out of use. The evidence is, and there is no 

dispute, that the .cover plate or cover plates were missing. 

And I find that to be a violation as charged of 30 CFR 

56.12-32. 

I need not repeat here my finding on all those criteria 

generally applicable. I will mention only those having to 

do with gravity and having to do with negligence. As to 

gravity, it is clear, as I found, that the circuit was inactive, that there was no hazard. Accordingly, I find this to 

be nonserious. 

As to negligence, I find that, in general, it was 

either known or should have been known that this cover was 

missing. However, I incorporate my previous findings, 

which include certain mitigating factors as far as negligence is concerned. 

In light of all those circumstances, I don't believe 

that the full penalty requested by the Assessment Office or 

that requested by counsel is merited. The fact that there 

was no likelihood of injury is a direct factor in this 

instance, and I will fine the nominal penalty of $10 for 

this violation. 

(Tr. 139-142). 

The above bench decision with reference to citations 212896, 

212898, 212899, 212900, 212907, 212909 and 212911 is hereby 

AFFIRMED. 

Citation Nos. 212897 and 212912, issued July 11, 1978 

The following is the bench decision on these citations found at pages 

183-189 of the transcript. 

The cit.ations here being considered are Nos. 212897 and 

212912. 

, In the first such citation, the inspector charged: 

"Mandatory standard 56.4-11 was not being complied with in 

that the abandoned electrical wiring in the oil storage 

shed was not removed." He charged a violation of mandatory 

standard 56.4-11. 

2169 
In Citation No. 212912, the inspector charged: "Mandatory standard 56.4-11 was not being complied with in that 

the abandoned electrical wiring was not removed from the hawk 

shed." 

The standard so referred to reads as follows: "Abandoned electrical circuits shall be de-energized and isolated 

so that they cannot become energized inadvertently." 

The inspector, as to both of these citations, testified 

in effect, at least to his view, that these were abandoned 

electrical circuits. Furthermore, there appears to be no 

dispute that the circuits in question in both of the citations were deenergized. 

The inspector further testified that in his view, the 

circuits should have been completely removed to be considered 

as isolated. There is testimony, and I don't believe it is 

disputed, that in both instances there was a separation 

between what you might call the incoming energized wires and 

the circuits that are in question. In one instance it is 

not clear whether energy was coming into that particular 

building or not. And in the other instance--that is, 897--

it is clear that there were live wires in the building. 

In the case of Citation No. 212912--that is the circuit 

in the hawk shed--the evidence is that it was, subsequent 

to this citation, activated and put in service. The initial 

question, therefore, is whether, in that instance, that was 

an abandoned circuit. It is evident, I think, that whether 

or not a circuit is abandoned would have to be judged on the 

circumstances of a case involving, I suppose, circumstances 

like the length of time it had been not used and other circumstances which would indicate the likelihood it would 

ever be used. We have few, if any, such circumstances as 

shown here except the time it had [been out of use which was], 

as I understand it, or at least counsel argued--for something 

like 6 months. The fact of the matter is that it was not 

ultimately abandoned, because it was restored to use. 

It would be my conclusion as to that citation that there 

is just not a sufficient preponderance of the evidence to 

show the abandonment at the time the citation was made. In 

fact, I would think that the evidence would tend to show to 

the contrary, that it was not abandoned. 

Accordingly, as to Citation No. 212912, I find there was 

no violation, and that citation should be vacated, and the 

petition dismissed as to that citation. 

2170 
Citation No. 212897 is in a different category. There 

is no evidence that it was restored to use. I don't recall 

there being any real dispute that this, in fact, was an 

abandoned circuit, and I will so find. 

It was deenergized. The sole question is then, whether 

in these kind of circumstances, with the separations 

involved, and considering that it had not been removed, was 

it, in fact, isolated? 

I suppose I would have to agree with counsel for MSHA 

that the circumstances would surely vary as to whether or not 

a particular abandoned circuit was, in fact, isolated or not 

isolated. The situation that he mentioned of wires actually 

crossing each other would not strike one as isolation, even 

though they might be separated by some insulation. In this 

case, there was a much greater gap. The live circuit was 

separated from the deenergized and abandoned circuit by about 

a foot or foot and a half of space. Now, the energized circuit was in a conduit, and as I understood the testimony, 

which was not disputed, covered by some sort of a plate. 

Preliminarily, I would find--and this is subject to 

reconsideration if cases are found to the contrary--but I 

would find that the isolation required is not necessarily 

removal. I would concede that in perhaps some cases 

removal would be the only way to complete the isolation. 

But the question is whether that was required in this 

instance. I further note that the standard, itself, does 

not absolutely require removal, nor should it. 

It seems to me that the operator in this instance had, 

at least in a certain sense, isolated--that is, separated--

quite clearly the energized from the abandoned circuit. 

The question is, had it been isolated sufficiently to 

satisfy this particular standard? I don't think the showing here is.adequate to show, by a preponderance of the evidence, that it had not been so isolated sufficiently. In 

other words, the two circuits were clearly separated. It 

would, in all probability, take an electrician to rewire--

and the evidence supports that--the particular circuitry. 

The circuitry in this instance was, according to the 

testimony--not hidden or concealed. It is difficult for me 

to understand how, at least in the kind of circumstances, 

MSHA could reasonably justify that this could be inadver-

.tently energized. My ultimate or general conclusion would 

be that if MSHA would require a greater isolation than was 

employed in this instance, that the regulations would have 

to be made clearer. 

2171 
Accordingly, in light of that, I find also that Citation 

No. 212897 was not proved, and I therefore vacate that citation and dismiss the petition as to it. 

As I stated, however, I make that decision subject to a 

reconsideration if there is a body of law holding to the 

effect that, in general, isolation means a complete removal. 

If I am asked to reconsider this, it should be brought 

to my attention as q~ickly as possible, and before the 

transcript is finished and received. 

That completes my decision on these two citations. 

The above bench decision is hereby AFFIRMED. 

Citation No. 212901, issued July 11, 1978 

The following is the bench decision on the above citation found at 

pages 199-201 of the transcript. 

This is Citation No. 212901. 

The inspector found the condition or practice as follows: "Mandatory standard 56.9-11 was not being complied 

with in that the P & H crane had cracked windows." And 

the mandatory standard cited reads as follows: "Cab 

windows shall be of safety glass or equivalent, in good 

condition, and shall be kept clean." 

The evidence received, which has not been disputed, 

shows that the window in the crane was shattered. That, 

therefore, is a violation of this standard, and I so find. 

In other words, I find a violation of 30 CFR 56.9-11. 

The finding as to the general criteria has already been 

made. 

I have limited this to findings on criteria and gravity, 

and what degree. First, the gravity. 

The in~pector testified that this could affect a miner 

or the operator of the machine in two ways. He could be cut 

from broken glass. Also, it could affect his visibility. 

It seems to me that in the circumstances, and based on the 

.testimony, this is a serious violation. On "negligence," 

the inspector testified that, in his view, the operator 

should have been aware of the condition. This is somewhat 

inconsistent with his statement made on his report at the 

2172 
time of the citing of the citation, in which he stated that 

it could not have been known or predicted. The inspector, 

as previously noted, has explained this or attempted to 

explain this difference or inconsistency. 

It seems to me that, in general, the fact of the 

shattered glass is readily noticeable, and should be 

observed or made known by someone. In this instance, 

the inspector did not know how long the glass had been 

shattered. There is the possibility that this may have 

happened just before it was observed and had not been 

reported, although there is no evidence to that effect. 

But considering all the circumstances, and also taking 

into account the good faith and rapid abatement, it would 

be my belief that the sum assessed by the Assessment Off ice 

would be appropriate, and I hereby assess a fine of that 

amount, namely, $26. 

That ends my decision on this citation. 

The above bench decision is hereby AFFIRMED. 

Citation No. 212902, issued July 11, 1978 

The following is the bench decision on the above citation found at 

pages 245-249 of the transcript. 

This concerns Citation No. 212902, wherein the inspector 

testified that he found a condition or practice as follows: 

"Mandatory standard 56.12-68 was not being complied with in 

that the transformer enclosure was not locked." 

The standard so referred to reads as follows: "Transformer enclosure shall be kept locked against unauthorized 

entry." 

The first consideration is whether or not a violation 

occurred. The testimony received indicates that there was 

a large overall enclosure, and as I understand it, it was 

separated into two parts by a fence. On one side, which 

is owned and operated and maintained by the power utility 

company, there was what might be described as a transformer. I don't think that it is really disputed. On the 

other side, which is operated and maintained by the company, 

there is other equipment, and this has been generally 

-Oescribed as a cutoff switch. The inspector did not go into 

the enclosure. He did not feel it was safe to do so and so 

he did not testify as to what precise equipment was on either 

side. That information comes from the testimony of 

Mr. Partridge, a witness for the operator. 

2173 
The testimony further shows, and there is no dispute, 

that the utility side of the enclosure was locked, and on 

the company side of this fence or outside enclosure, the 

lock was not secured. In other words, it was open to 

entry. However, the equipment within that company side, 

according to the testimony, was in a locked container or 

separate enclosure. 

I suppose the issue becomes perhaps somewhat technical 

at this point. I think that the argmnent of the representative of the operator here is ingenious, in a way, although 

I would say that I could not accept that, in my view. This 

general enclosure was a transformer enclosure within the 

meaning of this Act. It is true that there was this separation, but I don't believe, and I so find, that that keeps it 

from being an enclosure as defined in or within the meaning 

of the regulation. 

There is some testimony that there would be no danger 

in going into that enclosure on the company side. However, 

that testimony came from Mr. Partridge, who is not an electrician. I have to believe that that entire apparatus was 

enclosed for a purpose, and that was to keep people out 

from possible danger, and of course, in addition to that, 

to the general security of the area. 

I think it is an integrated whole. I don't see how you 

could separate the elements of this whole in this kind of a 

situation. There has to be some connecting link. I don't 

think the evidence is clear as to what the dangers might or 

might not be on that connecting link, should there be an 

unauthorized entry. But even so, as counsel for MSHA has 

stated, the general danger around such an installation is 

so great that it would seem to me that it would be flirting with possible injury to construe this regulation so 

narrowly that it would not cover such an enclosure as a 

transformer enclosure. 

In other words, to be more specific, I would interpret 

it as the transformer and all appurtenances thereto, as 

covered by this regulation. Since it was not locked, it 

did violate the standard, and I so find. 

I find here that the failure to keep this enclosure 

locked violates 30 CFR 56.12-68. 

There are only two criteria I have to make findings on, 

the others having already been made heretofore. The first 

is the gravity. I believe it is very serious, and I so 

find, because of the danger of electrocution. 

2174 
So far as negligence is concerned, it is a condition 

which I believe the operator knew or should have known in 

such enclosures. There would seem to me to be very few 

excuses for it remaining unlocked. Accordingly~ I find that 

this was more than ordinary negligence on the part of the 

operator. 

I should add, as far as the negligence is concerned, 

there was no evidence put in as to why this particular 

enclosure remained unlocked, or any information which 

might tend to mitigate the negligence. 

In all those circumstances, I would not assess as high 

a penalty as the Government counsel has asked. I again 

consider the operator's good faith and rapid abatement in 

this matter. I will assess a penalty of $100 for this 

violation. 

The above bench decision is hereby AFFIRMED. 

Citation Nos. 212905, 212910, issued July 11, 1978, and Citation No. 212913, 

issued July 13, 1978 

Citation No. 212905 alleged a violation of 30 CFR 56.12-2 which states 

that electrical equipment and circuits shall be provided with switches or 

other controls. Such switches or controls shall be of approved design and 

construction ~nd shall be properly installed. The parties agreed to settle 

this case for the amount originally assessed, $24. I hereby approve the settlement. 

Citation No. 212910 alleged a violation of 30 CFR 56.11-2 which states 

that crossovers, elevated .walkways, elevated ramps and stairways shall be 

of substantial construction provided with handrails and maintained in good 

condition. Where necessary, toeboards shall be provided. The parties 

agreed to settle this case for $24, the amount originally assessed. I hereby 

approve the settlement. 

Citation No. 212913 alleged a violation of 30 CFR 56.4-23 which states 

that firefighting equipment which is provided on the mine property shall be 

strategically located, readily accessible, plainly marked, properiy maintained, and inspected periodically. Records shall be kept of such inspections. The parties agreed to settle this case for $26, the amount originally assessed. I hereby approve the settlement. 

·I hereby REAFFIRM my approval from the bench of these settlements. 

Docket No. WILK 79-70-PM 

Citation No. 212914, issued July 13, 1978 

The following is the bench decision on this citation found at pages 

264-266 of the transcript. 

2175 
This is Citation No. 212914. 

The inspector cited, as the condition or practice, the· 

following: "Mandatory standard 56.14-1 was not being complied with in that the guard for the flour screw V-belt drive 

was not guarded completely." 

The inspector cited 56.14-1, which reads as follows: 

"Gears, sprockets, chains, drive, head, tail and take-up 

pulleys, fly wheels, couplings, shafts, saw blades, fan 

inlets, and similar exposed moving machine parts which may 

be contacted by persons and which ~ay cause injury to 

persons shall be guarded." 

As I previously indicated, the only evidence received 

is the testimony of the inspector, as well as the documents and that indicates that a part of the V-belt on this 

flour screw drive--V-belt drive--that is the motor end of 

the drive, was not guarded. Clearly, it seems to me the 

standard covers that. There was an exposure of moving 

parts, which, if contacted by persons, could cause injury. 

Accordingly, I find there was a violation of mandatory 

standard 30 CFR 56.14-1, as charged. 

These are consolidated dockets. I have already made 

the findings as to all of the statutory criteria except for 

gravity and for negligence. 

On gravity, I agree with counsel for MSHA that this is 

a serious type of violation, and r·so find, that it is serious, because an operator or any miner or person near the 

machine may become entangled, either through his clothing or 

his person, and become injured seriously. The inspector testified that the operator should have been aware of the violation, because a complete inspection had been made previously. 

I do note the comments and contentions of Mr. Blodgett, that 

the operator did have some question under some circumstances 

about the parts of the machines to be covered. And he does--

and he also emphasized the fact that this V-belt was partly 

covered. However, on the basis of the evidence that has been 

received in this record, it seems clear to me that it should 

have been covered, and I find no ambiguity, really, in--or 

any question, really, about whether or not that end should 

have been covered. And under the circumstances, the operator 

should have known about it, and I find, therefore, ordinary 

negligence. 

2176 
I take into account those factors of mitigation 

applicable that I previously mentioned. I believe that the 

penalty assessed by the assessment officer, which was $38, 

is appropriate for this violation, and I will make the same 

assessment. 

That completes the decision on this citation. 

The above bench decision is hereby AFFIRMED. 

Citation No. 212915, issued July 13, 1978 

The following is the bench decision on the above citation found at pages 

320-323 of the transcript. 

This is Citation No. 212915. The inspector cited as the 

condition or practice the following: "Mandatory standard 

56.5-3 was not being complied with in that the loose material 

on the quarry face was not scaled after blast." 

I have to make a correction on that. As I read the 

inspector's condition or practice statement, it starts, 

"Mandatory standard 56.5-5." The inspector has testified 

that that is not a 5, and should read "56.3-5." 

Now:, then, that particular standard reads: "Men shall 

not work near or under dangerous banks. Overhanging banks 

shall be taken down immediately and other unsafe ground 

conditions shall be corrected promptly, or the area shall 

be barricaded and posted." That's the end of the quotation. 

The first question is the fact of the violation. The 

evidence that has been received on this was described by 

Mr. Kramer as somewhat confusing, and I will agree with that. 

I think it is confusing, and in some respects contradictory 

and difficult to follow. However, it seems to me that 

there is no doubt that on this quarry face there was, at 

some point, loose material, and that was recognized by the 

operator. The evidence shows, by the testimony, as well as 

in doc\UUentary form, that a backhoe on the 12th did do some 

scaling work. The inspector also testified that he did see 

a backhoe on the 12th. 

Furthermore, as I understand the inspector, there was a 

backhoe on ~he 13th, when he wrote his citation. The citation was written on the 13th at 9:30, and it was abated on 

the 13th at 1500 hours, which would mean 3 o'clock. In 

order for that to be done, it was necessary to have heavy 

.. equipment on the face. I have to deduce from the circumstances or imply from the circumstances that the equipment 

had already been ordered and was there. In fact, the 

inspector did testify that when he observed the condition, 

the operator was in the process of correcting the condition. 

2177 
I should note, or I should have noted previously, that 

there is no question concerning the part of the standard 

which would require, in the alternative, that areas shall 

be barricaded and posted. The inspector made clear that 

was not applicable, because no one could get near, in the 

circmnstances, and this apparently would have been an 

unnecessary action. 

The only issue, therefore, is whether the correction 

was promptly done. 

The only questions at all that I can see, in considering the question of promptness, was the fact that some day 

or so had elapsed, which is the point made by counsel for 

the Government. In the circumstances, it does not seem to 

me that that little time span is that significant. The 

testimony and the evidence, in general, strikes me as indicating that the operator was doing all that it could reasonably be expected to, in the circumstances, and was in 

the process of correcting this loose material on the 

quarry face. 

In light of those circumstances, I conclude that the 

Petitioner has not carried its burden in this particular 

instance, and, accordingly, I would vacate this citation 

and dismiss the petition as to Citation No. 212915. 

The above bench decision is hereby AFFIRMED. 

A stnnmary of the dispositions in this case follows: 

Citation No. 

212903 

212894 

212895 

212904 

212906 

212908 

212896 

212898 

212899 

212900 

212907 

212909 

212911 

212897 

212912 

212901 

212902 

212905 

2178 

Action Taken or Assessment 

withdrawn 

dismissed with prejudice 

dismissed with prejudice 

dismissed with prejudice 

dismissed with prejudice 

dismissed with prejudice 

$ 10 

$ 25 

$ 20 

$ 20 

$ 35 

$ 25 

$ 10 

vacated 

vacated 

$ 26 

$100 

$ 24 
212910 

212913 

212914 

212915 

Total 

ORDER 

$ 24 

$ 26 

$ 38 

vacated 

$383 

IT IS ORDERED that Respondent pay the penalties totaling $383 within 

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

~-/ 

/>~ukikr. Franklin P. Michels I? fl%~_Adu Administrative Law Judge 

Distribution: 

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Richard E. Blodgett, Division Manager, Ottawa Silica Co., Connecticut 

Division, 154 Lantern Hill Road, Ledyard, CT 06339 (Certified Mail) 

2179 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CLIMAX MOLYBDENUM COMPANY, 

Applicant 

Application for Review 

v. Docket No. DENV 78-581-M 

SECRETARY OF LABOR, Order No. 333638 

MINE SAFETY AND HEALTH August 31, 1978 

ADMINISTRATION (MSHA), 

Appearances: 

Before: 

Respondent Climax Mine 

DECISION 

William F. Schoeberlein, Esq., Charles w. Newcom, Esq., 

Dawson, Nagel, Sherman & Howard, Denver, Colorado; and 

w. Michael Hackett, Esq., and James F. Engelking, Esq., 

Climax Molybdenum Company, Golden, Colorado, for the 

Applicant; 

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. 

Department of Labor, for the Respondent. 

Judge Cook 

I. Procedural Background 

On September 29, 1978, Climax Molybdenum Company (Climax) filed an 

application for review pursuant to section 107(e)(l) 1/ of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 817(e)(l) (1978) (1977 Mine Act). 

1/ Section 107(e)(l) provides: 

"Any operator notified of an order under this section or any representative of miners notified of the issuance, modification, or termination of 

such an order may apply to the Commission within 30 days of such notification for reinstatement, modification or vacation of such order. The 

Commission shall forthwith afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard 

to subsection (a)(3) of such section) and thereafter shall issue an order, 

based upon findings of fact, vacating, affirming, modifying, or terminating 

the Secretary's order. The Commission and the courts may not grant temporary relief from the issuance of any order under subsection (a)." 

2180 
The application seeks review of an imminent danger withdrawal order issued 

by a Federal mine inspector under section 107(a) 2/ of the Act. The application for 'review states as follows: -

COMES NOW Climax Molybdenum Company, a division of AMAX 

Inc. (hereafter "Climax"), by and through its attorneys, pursuant to Section 107(e) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 817(e), and hereby makes application 

for review of Order Number 333638, issued on August 31, 1978, 

a copy of which is attached hereto. Climax respectfully 

requests that a hearing be held in Denver, Colorado. At that 

hearing, Climax intends to contest the merits of the abovereferenced order. Climax respectfully requests that said 

order be vacated and declared void because there was no 

imminent danger in that there was no condition or practice in 

existence which could reasonably be expected to cause death 

or serious physical harm before such condition or practice 

could be abated. 

An answer was filed by the Mine Safety and Health Administration (MSHA) 

on October 12, 1978. The answer states as follows: 

The Secretary of Labor (Secretary) by undersigned cou~sel 

admits to the issuance of withdrawal order No. 333638 and 

states that it was properly issued pursuant to Section 107(a) 

of the Federal Mine Safety and Health Act of 1977. 

The Secretary also denies all other allegations made by 

the applicant not herein specifically admitted to be true. 

Wherefore, the Secretary requests that the relief 

requested by climax be denied and that withdrawal order 

no. 333638 be affirmed. 

---

Certificates of service attached to both pleadings indicated that 

service had been made upon Local No. 1823, International Brotherhood ,of 

:?:.,/ Section 107(a) provides: 

"If, upon any inspection or investigat·ion of a coal or other mine which 

is subject to this Act, an authorized representative of the Secretary finds 

that an imminent danger exists, such representative shall determine the 

extent of the area of such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine to cause all persons, 

except those referred to in section 104(c), to be withdrawn from, and to be 

prohibited from entering, such area until an authorized representative of 

the Secretary determines that such imminent danger and the conditions or 

practices which caused such imminent danger no longer exist. The issuance 

of an order under this subsection shall not preclude the issuance of a 

citation under section 104 or the proposing of a penalty under section 110." 

2181 
/ Electrical Workers and Local No. 2-24410, Oil Chemical and Atomic Workers 

International· Union. No answer was filed by either organization. 

Orders were issued on November 7, 1978, and November 20, 1978, 

granting Climax's motions requesting extensions of time for the commencement of discovery. 

Various notices of hearing were issued as well as an order for continuance pursuant to a motion by the Applicant. The hearings were conducted 

between November 28, 1978, and November 29, 1978, and between January 30, 

1979, and February 1, 1979, in Denver, Colorado. '}_/ Representatives of 

Climax and MSHA were present and participated. No persons acted as representatives of the miners at the hearing. !!:./ 

At the conclusion of the hearing on February 1, 1979, a schedule for 

the submission of posthearing briefs was agreed upon. However, difficulties 

experienced by counsel necessitated a revision of this schedule. MSHA and 

Climax submitted their posthearing briefs on March 23, 1979, and April 2, 

1979, respectively. On April 6, 1979, Climax submitted an errata correcting 

certain typographical errors in its posthearing brief. Climax submitted its 

reply brief on April 16, 1979. MSHA did not submit a reply brief. 

II. Issue 

The issue presented is whether the imminent danger order of withdrawal was properly issued under section 107(a) of the Act. 

Did the conditions which existed as to the starter leg wire to the 

slusher at 615-14 while the slusher was energized in the Climax Mine at about 

12:42 p.m., on August 31, 1978, constitute an "imminent danger." 

3/ The transcript consists of two parts. Part I records the proceedings of 

November 28 and November 29, 1978, while Part II records the proceedings of 

January 30, 31, and February 1, 1979. Part I and Part II are not consecutively numbered. Accordingly, references to the transcript in this decision 

will make reference to both the page on which the cited information is contained and the part of the transcript containing that page. For example, a 

citation to page 308 of Part I of the transcript will be made as follows: 

(Tr. I at 308). A series of references to the transcript will be made as 

follows: (Tr. I at 51, 79, 97-102, 311-319; Tr. II at 63, 87, 108-115). 

4/ Mr. Edward Farley, president of Local No. 2-24410, Oil, Chemical and 

.Atomic Workers' International Union was present at the hearing on 

November 28, 1978. Mr. John L. Reddington, a member of Local No. 1823, 

International Brotherhood of Electrical Workers was present at the hearing 

on January 30, 1979. Aside from Mr. Reddington's status as a witness, 

both men acted as union observers during the hearing. They did not attend 

as advocates for their respective unions (Tr. I, 4-6; Tr. II 2-5). 

2182 
III. Evidence Contained in the Record 

A. Stipulation 

During the course of the hearing, the parties stipulated that in order 

for a slusher machine to be operable, it would have to be bolted into the 

rock as well as sitting in a concrete pad (Tr. II at 114). 

B. Witnesses 

MSHA called as its witnesses Dennis Martinez, an employee of Climax; 

James Enderby and Frederick Joseph Freilino, MSHA inspectors. 

Climax called as its witnesses Walter Joseph Florence, Jr., an 

industrial hygiene technician at the Climax Mine; James S. Keith, Climax's 

director of health and safety; George E. Pupera, electrical superintendent 

at the Climax Mine; John Reddington, an electrician on the 600 level of the 

Climax Mine; and Harden Williams, the underground electrical foreman at the 

Climax Mine. 

c. Exhibits 

1. MSHA introduced the following exhibits into evidence: 

M-1 is a copy of Order No. 333638, issued by inspector James Enderby 

on August 31, 1978, pursuant to section 107(a) of the 1977 Mine Act. 

M-2 is a modification of M-1. 

M-3 is a map of the 600 level of the Climax Mine. 

M-4 is a sketch, prepared by an MSHA artist, of the area around the 

615-14 slusher as it appeared on August 31, 1978. 

M-5 is a cross-sectional sketch of the 615-14 slusher dash. 

M-10 is a drawing produced during the hearing by witness Dennis 

Martinez. 

M-10-A is Mr. Martinez' redrawing of M-10. 

M-11 contains copies of notes written by witness Walter Joseph 

Florence on August 31, 1978. 

M-12 is a drawing of the electrical system drawn during the hearing 

by witness Frederick Joseph Freilin-0. 

M-13 is a photograph taken by Inspector Enderby on December 13, 1978. 

M-14 is a photograph taken by Inspector Enderby on December 13, 1978. 

2183 
M-15 is a photograph taken by Inspector Enderby on December 13, 1978. 

M-16 is a photograph taken by Inspector Enderby on December 13, 1978. 

M-17 is a photograph taken by Inspector Enderby on December 13, 1978. 

M-18 is a copy of an extract from the "American National Standard 

Guide for AC Motor Protection," ANSI/IEEE C37.96-1976. 

M-19 is a copy of an extract from Title 30 of the Code of Federal 

Regulations. 

M-20 is a copy of an extract from the IEEE "Recommended Practice for 

Grounding of Industrial and Commercial Power Systems," ANSI Cll4.l-1973/IEEE 

Standard 142-1972, also called the "Green Book." 

M-21 is a copy of the front page of the IEEE "Guide for Safety in 

Substation Grounding," IEEE Standard 80-1976. 

M-22 is a copy of an extract from the IEEE "Recommended Practice for 

Protection and Coordination of Industrial and Commercial Power Systems," 

IEEE Standard 242-1975, also called the "Buff Book." 

M-23 is a copy of an extract from the IEEE "Recommended Practice for 

Electric Power Distribution for Industrial Plants," IEEE Standard 141-1976, 

also called the "Red Book." 

M-24 is a copy of an extract from the "American Electrician's Handbook," 

9th edition. 

M-25 is a copy of an extract from "Industrial Power Systems Handbook," 

[D. Beeman, editor] (McGraw-Hill Book Company, Inc., 1955). 

M-26 is a copy of the front page from the "Electrical Protection 

Handbook." 

M-27 is a copy of a page from a book published by the Bureau of Mines, 

U.S. Department of the Interior, dated June 30, 1972, with reference to 

metal and nonmetal mines. 

M-28 is a copy of a memorandum dated March 11, 1976, from the Assistant 

Administrator for Metal and Nonmetal Mine Health and Safety of the Mining 

Enforcement and Safety Administration, U.S. Department of the Interior, to 

district and subdistrict managers, metal and nonmetal mine safety and health. 

M-29 is a copy of an extract from the "National Electrical Code" 

(1978), admitted into evidence for the purpose of illustrating types 

of cable jackets and material classification numbers. 

2184 
M-30 is a chart containing a circuit breaker current characteristic 

curve reflecting the maximum/minimum allowable tripping time for circuit 

breaker types EB·, EHB and Mark 75 Type HFB. 

M-31 is a chart similar to M-30 for the following circuit breaker 

types: QUICKLAG Types HQP, QC, QPH, QBH, QCH, and Type BAB Standard Frames; 

MARK 75 Frames HBA, QHC and QHP. 

M-32 is a copy of an extract from "Inspection and Test of Electrical 

Equipment." 

M-34 is a copy of an extract from the IEEE "Recommended Practice for 

Emergency and Standby Power Systems," IEEE Standard 446-1974, also called 

the "Orange Book." 

2. Climax introduced the following exhibits into evidence: 

0-1 is a copy of Inspector Enderby's deposition taken on November 21, 

1978. 

0-1-A is a copy of the cover letter that accompanied 0-1. 

0-2 is a manufacturer's photograph of a slusher machine similar to 

the machine that was in 615-14. 

0-2-A is a photocopy of 0-2. 

0-2-B is a photocopy of 0-2. 

0-3 is a nomenclature chart for ISO-horsepower slushers. 

0-4 is a section of cable containing the defect cited by Inspector 

Enderby on August 31, 1978. 

0-5 is a section of cable. 

0-6 is a three-page reproduction from Inspector Enderby's notes. 

0-7 is a brochure. 

0-8 is a brochure. 

0-9 is a schematic drawing showing the electrical key to a slusher 

installation from a main substation. 

0-11 is a copy of Article 90 of the 1978 version of the "National 

Electrical Code." 

0-12 is a copy of the Applicant's requests for admissions, production 

of documents and interrogatories. 

2185 
0-13 is a copy of MSHA's response to 0-12. 

0-14-A is a copy of an extract from the IEEE "Recommended Practice for 

Protection and Coordination of Industrial and Commercial Power Systems," 

IEEE Standard 242-1975. 

0-14-B is a copy of an extract from the IEEE "Recommended Practice for 

Grounding of Industrial and Commercial Power Systems," ANSI Cll4~1-1973/IEEE 

Standard 142-1972. 

D. Posthearing Receipt of Exhibits into Evidence 

On February 27, 1979, Climax filed a motion with respect to the submission of additional documents. This motion states the following: 

COMES NOW Climax Molybdenum Company, a division of AMAX 

Inc. (hereinafter "Climax"), by and through its attorneys, 

pursuant to the Interim Procedural Rules of the Fedderal Mine 

Safety and Health Review Commission, 29 C.F.R. §2700.13, and 

moves for the admission of Exhibits 0-14(A) and 0-14(B). 

Climax further states that it has no exhibits to be introduced as 0-10 in connection with the taking of photographs by 

inspectors. 

In support thereof, Climax would state as follows: 

1. Although Counsel for Climax has yet to receive 

Respondent's response to its request for production of documents and interrogatories, Climax understands from conversations with counsel for Respondent that no documents dealing 

with the issue of taking of photographs are in existence. 

Accordingly, no documents will be proposed for admission 

under Exhibit 0-10. 

2. At the time of the hearing it was agreed that Climax 

would have until and including February 27 to submit any 

additional documents bearing on issues of the applicability 

of the National Electrical Code to underground mines. Additionally, as a part of those exhibits Climax has included as 

it was discussed at the hearing, certain pages of those documents which were used in Mr. Freilino's cross-examination. 

3. O-l4(A) consists of pages 25 and 233 of the "Buff 

Book." Exhibit 0-14(B) consists of pages, 13, 14, 49, 58 

and 59 of the "Green Book." 

WHEREFORE Climax moves for the introdocution [sic] and 

admission of Exhibits 0-14(A) and 0-14(B) for the purpose of 

showing the inapplicability of the National Electrical Code 

2186 
to underground mines and for purposes of placing in the 

record pages of publications which were ready in [sic] the 

record by Mr. Freilino on his cross-examination. 

At the hearing, it was agreed that objections to the admission into 

evidence of the above-noted exhibits would be set forth in the posthearing 

briefs (Tr. II at 446-457). No objections are set forth in MSHA's posthearing brief. 

Accordingly, Climax's motion for the introduction and admission of 

Exhibits 0-14-A and 0-14-B for the above-stated purpose is GRANTED, and the 

exhibits are hereby RECEIVED in evidence. 

Exhibits M-13 through M-17 are photographs of the slusher at 615-14. 

These photographs were taken by MSHA inspector James Enderby on December 13, 

1978, at a time when he was at the mine lawfully during the course of his 

inspection duties. MSHA seeks to have these exhibits received into evidence, while Climax interposes strenuous objections to their admission (Tr. 

II at 238, 240, 270-274, 446-457; MSHA's Posthearing Brief at pp. 8-9; 

Climax's Posthearing Brief at PP• 22-24). 

Climax notes that the issue presented is not whether the photographs 

are accurate representations of what the inspector obse~ved at the time 

they were taken. Instead, Climax phrases the issue as "whetl;ler photographs 

or other evidence obtained after litigation on a citation or order is begun 

can properly be.admitted when those photographs are not obtained in compliance with the Discovery Rules" (Climax's Posthearing Brief at p. 22). 

In support of its· position, Climax argues: 

Climax has no right of access to either interview inspectors 

or obtain copies of inspector's notes outside of the context 

of the Discovery Rule. MSHA must be required to follow those 

rules also and the only suitable means for requiring that is 

to exclude from evidence all documents, photographs, or similar materials which are obtained outside the bounds of the 

Commission's Discovery Rules. This is not to say that MSHA 

inspectors should be prohibited from returning from the scene 

of alleged violations after a citation has been issued is 

[sic] a part of determining whether abatement has been accomplished. It is to say however that if that matter is in 

litigation that any photographs or statements taken by an 

inspector after the application for review has been filed or 

any documents which are obtained by inspector requests after 

litigation has been initiated should not be admitted into 

evidence unless those documents are obtained through the 

Discovery processes provided for in the Rules. To rule 

otherwise would establish an unfair and arbitrary scheme 

which cannot be sustained, particularly in view of the 

presence of the Discovery Rules. Climax is obligated to 

2187 
comply with the Commission's Rules and MSHA must comply with 

them as well. It would clearly be inappropriate to give 

MSHA this unfair advantage in administrative litigation. 

No effort was made to comply with the Discovery Rules 

in taking the photographse Because litigation was pending 

and those rules were not complied with, and further because 

in addition Climax was given no opportunity to .have either 

a knowledgeable electrician or its attorneys involved in the 

taking of the photographs, Exhibits M-14 [sic] through M-17 

inclusive should not be admitted into evidence. 

(Climax's Posthearing Brief at pp. 23-24). 

MSHA's counter-arguments state, in pertinent part, as follows: 

* * * * * * 

2. There has been no showing that the Applicant has 

been in any way prejudiced by the introduction of these 

photographs, which are offered solely as an aid to the court 

in perceiving the work area of the mine involved. 

* 

3. The talking [sic] of phographs [sic] does not 

involve an attempt to question applicant's agents without the 

presence of counsel. 

* * * * * 

5. At the time the photographs were taken, MSHA personnel were present in the mine lawfully during the course 

of normal inspection duties. 

* 

Climax's objection presents a question of first impression. Climax has 

not cited any points and authorities in support of its position so as to 

provide the Judge with guidance in addressing this novel question. However, 

it does present a meritorious question which can be addressed with reference 

to existing law on the use of photographic evidence. Due consideration 

must be given to both the conduct complained of and the nature of the evidence and its proffered use in determining whether it is admissible. 

Under the Commission's Interim Procedural Rules, in effect at all times 

relevant to this proceeding, "[a]ny relevant- evidence may be received at 

the discretion of the Judge. The Judge may exclude evidence which he finds 

to be unreliable or unduly repetitious." 29 CFR 2700.50 (Interim Rules). 

The use of photographic evidence in judicial proceedings is discussed 

in McCormick, Handbook of the Law of Evidence, § 214 at 530-531 (2nd ed., 

E. Cleary, 1972), as follows: 

2188 
The principle upon which photographs are most commonly 

admitted into evidence is the same as that underlying the 

admission of illustrative drawings, maps and diagrams. Under 

this theory~ a photograph is viewed merely as a graphic 

portrayal of oral testimony, and becomes admissible only when 

a witness has testifie<l that it is a correct and accurate 

representation of relevant facts personally observed by the 

witness. Accordingly, under this theory, the witness who 

lays the foundation need not be the photographer nor need he 

know anything of the time, conditions, or mechanisms of the 

taking. Instead he need only know about the facts represented or the scene or objects photographed, and once this 

knowledge is showu he can say whether the photograph correctly and accurately portrays these facts. Once the photograph is thus verified it is admissible as a graphic portrayal of the verifying witness' testimony into which it is 

incorporated by reference. [Footnotes omitted.] 

Under the principles cited in the above-quoted passage, a photograph 

serves merely as a graphic portrayal of a witness' oral testimony, into 

which the photograph is incorporated by reference. Unlike evidence submitted under an exception to the hearsay rule, a photograph is not introduced ordinarily as independent proof of the truth of the matters asserted 

therein. 

The subject photographs were offered as graphic aids in interpreting 

what Inspector Enderby and Mr. Martinez observed on August 31, 1978 (Tr. 

II at 239-240). To the extent that they set forth an accurate graphic 

portrayal of the conditions observed by the witnesses on August 31, 1978, 

they are relevant to the subject matter of this proceeding within the 

meaning of 29 CFR 2700.50 (Interim Rules). 

There is no indication in the record that Inspector Enderby interrogated 

or attempted to interrogate Climax's agents on December 13, 1978, in connection with the subject matter of this proceeding. As the photographs merely 

relate back to conditions already observed on August 31, 1978, I am unable 

to characterize the circumstances surrounding their taking as an interrogation of the Applicant's agents. 

30 CFR 2700.46 of the Commission's Interim Procedural Rules provided 

in part that: "For good cause shown, the Judge may order a party to produce 

and permit inspection, copying or photographing of designated documents or 

objects relevant to the proceeding." MSHA accordingly should have followed 

this rule. However, we are now faced with an accomplished fact and a consideration of whether evidence which would be helpful to the ultimate determination of the case should now be received in evidence. It could be argued 

tpat MSHA's request for admission of the pictures in evidence is in effect 

a motion for ratification of the act of obtaining discovery by photographing 

of objects. 

2189 
It does not appear that the Applicant will be prejudiced by the 

admission of the pictures, while on the other hand they are very helpful in 

understanding the issues in this case. 

Accordingly, the Applicant's objection is OVERRULED and Exhibits M-13 

through M-17 are hereby RECEIVED in evidence. 

During the course of the hearing, Climax interposed objections to the 

admission into evidence of Exhibit Nos. M-18 through M-28. It was agreed 

that objections to the receipt of the documents would be argued in the 

briefs (Tr. II at 446-457). In addition, it was agreed that MSHA would be 

granted until February 20, 1979, to file any additional subparts to those 

exhibits, and that MSHA would be granted until such date to file a copy of 

parts of the "Orange Book" as Exhibit M-34 (Tr. II at 453-454). 

On February 22, 1979, MSHA filed a motion to admit and substitute 

exhibits. This motion stated, in part, as follows: 

Now comes the Mine Safety and Health Administration, 

MSHA, through its undersigned attorneys and files this 

motion to: 

1. Admit attached exhibit M-34 (orange book). 

2. Substitute the attached copy of exhibit M-24 

for the one submitted at hearing. 

3. Substitute the attached copies of exhibits 

M-20, M-22, and M-23 for those submitted at 

hearing. 

The grounds for this motion are that the record was 

expressly left open for the receipt of these documents. In 

addition, substitution of exhibit M-24 is necessary in that 

the copy submitted at hearing is partially illegible due to 

xeroxing. 

Please note that although the NEC is not specifically 

·mentioned in M-34, the emphasized paragraph references 

publications which do reference the NEC. 

In its posthearing brief, Climax states, in part, as follows: 

Climax has no objection to the admission of exhibit 

no. 18 [sic] through M-28, inclusive, and M-34, for the 

limited purpose of dealing with the issue of whether the 

National Electrical Code is or is not applicable to underground mines. As noted in Part III, Climax maintains that 

the Code is not applicable to underground mines. Those 

2190 
exhibits only reenforce that position. They reference the 

Code but never as being applied wholesale, or in pertinent 

part here, in underground metal-nonmetal mines. 

(Climax's Posthearing Brief at p. 24). 

Climax's brief interposes no objection to the. substitution of copies 

of Exhibits M-20, M-22, M-23, and M-24. 

Accordingly, MSHA's motion to admit and substitute exhibits is GRANTED. 

IT IS THEREFORE ORDERED that the copies of Exhibits M-20, M-22, M-23, and 

M-24, which were submitted in conjunction with the motion, be, and hereby 

are, SUBSTITUTED for the copies of those exhibits marked for identification 

during the hearing. IT IS FURTHER ORDERED that Exhibits M-18 through M-28 

and Exhibit M-34 be, and hereby are, RECEIVED in evidence. 

During the hearing, MSHA reserved its right to object to the receipt 

into evidence of Exhibits 0-12 and 0-13. It was agreed that any objections 

would be argued in the briefs (Tr. II at 448-452). 

In support of its motion to admit these documents into evidence, Climax 

states: "With respect to Exhibits 0-13 and 0-14, [sic], those exhibits 

should be admitted. It is hornbook law that interrogations [sic] and 

answers are validly used for impeachment purposes. 8 Wright & Miller, 

Federal Practice & Procedure, Civil, § 2180, p. 573 (1970)" (Climax's Posthearing Brief at p. 24). 

MSHA's posthearing brief interposes no objections to the receipt of 

these documents in evidence. 

Accordingly, IT IS ORDERED that Exhibits 0-12 and 0-13 be, and hereby 

are, RECEIVED in evidence. 

IV. Opinion and Findings of Fact 

A. The Applicability of the National Electrical Code to Underground 

Metal and Nonmetal Mines 

A question is presented as to whether the National Electrical Code 

(NEC), portions of which are incorporated by reference into other privatelypublished associated publications (Exhs. M-18, M-20, M-21, M-22, M-23, M-24, 

M-25, M-26, M-34, 0-14-A, 0-14-B), sets forth an industry standard for the 

grounding of electrical systems in underground areas of metal and nonmetal 

mines. MSHA argues that the question should be answered in the affirmative 

(MSHA's Posthearing Brief at p. 9), while Climax argues that it should be 

answered in the negative (Climax's Posthearing Brief at PP• 20-22; Climax's 

Reply Brief at P• 7). For the reasons set forth below, I conclude that the 

NEC does not specifically set forth the governing industry standard for the 

grounding of electrical systems in the underground areas of metal and 

nonmetal mines. 

2191 
It should be pointed out that, in view of the foundation for the decision in this case, as set forth later, the determination of this question 

has no effect upon the outcome; however, despite this, the issue has been 

analyzed. 

The resolution of this inquiry requires a two-pronged analysis making 

reference to both the appropriate provisions of the Code of Federal Regulations (Code) and the appropriate provisions of the NEC (Exh. 0-11) and 

associated works. 

According to Inspector Freilino, the NEC requirements for adequate 

grounding would have required the starter leg wire to have a third conductor, i._£., a ground conductor (Tr. I at 263-264, 361). This requirement 

would have been deemed fulfilled by MSHA by either the presence of a third 

wire inside the cable or, alternatively, by the presence of a third wire 

somehow attached to the cable (Tr. I at 263-264, 329). The inspector opined 

that Exhibit 0-4, a segment of the subject starter leg wire, was not in 

compliance because it had only two cables (Tr. I at 263). Specifically, he 

testified that Exhibit 0-4, by itself, could not properly ground the equipment (Tr. I at 327). The inspector further testified that his opinion was 

based on the grounding requirements set forth in sections 1250-42 and 

1250-59 of the NEC (Tr. I at 285-287). 

The scope of the NEC is set forth in Article 90 of that publication 

which states, in pertinent part, as follows: 

90-2. Scope. 

(a) Covered. This Code covers: 

(1) Electric conductors and equipment ip.stalled 

within or on public and private buildings or other structures, 

including mobile homes and recreational vehicles; and other 

premises such as yards, carnival, parking and other lots, and 

industrial substations. 

(2) Conductors that connect the installations to 

a supply of electricity. 

(3) Other outside conductors on the premises. 

(b) Not Covered. This Code does not cover: 

(1) Installations in ships, watercraft, railway 

rolling stock, aircraft, or automotive vehicles other than 

mobile homes and recreational vehicles. 

(2) Installations underground in mines. 

2192 
(3) Installations of railways for generation, 

transformation, transmission, or distribution of power used 

exclusively for operation of rolling stock or installations 

used exclusively for signaling and communicatio.n purposes. 

(4) Installations of communication equipment 

under the exclusive control of communication utilities, 

located outdoors or in building spaces used exclusively 

for such installations. 

(5) Installations under the exclusive control of 

electric utilities for the purpose of communication, or 

metering; or for the generation, control, transformation, 

transmission, and distribution of electric energy located in 

buildings used exclusively by utilities for such purposes or 

located outdoors on· property owned or leased by the utility 

or on public highways, streets, roads, etc., or outdoors by 

established rights on private property. 

(Exh. 0-11). 

As revealed in the above-quoted passage, section 90-2(b)(2) excludes 

installations in underground mines from the NEC's coverage. However, in 

spite of this disclaimer, MSHA electrical inspector Frederick Freilino testified as an expert that the NEC grounding provisions were applicable to 

underground metal and nonmetal mines (Tr. I at 276-277). Also, he referred 

to other publications as incorporating by reference select provisions of 

the NEC (~·.[•, Exhs. M-18, M-20, M-21, M-22, M-23, M-24, M-26, M-34, 0-14-A, 

0-14-B; Tr. I at 276-282), which he described as applicable to underground 

mines because they apply to "all power distribution systems regardless of 

their use" (Tr. I at 281). 

I am unable to accept the inspector's opinion in this matter because 

his testimony differs from both the tenor of the exhibits upon which he 

relied and the very language of the NEC. None of these exhibits sustain the 

assertion that the NEC is specifically applicabl~ to underground mines. 

Those documents incorporate select NEC provisions only in the context of 

commercial and industrial applications that are well within the scope of 

section 90-2(a) of the NEC (Exh. 0-11). Accordingly, it cannot be found 

that the NEC and the associated exhibits establish the standards for adequate electrical grounding systems for the underground metal and nonmetal 

mining industry. 

A review of the appropriate provisions of the Code of Federal Regulations (Code) fails to disclose a wholesale incorporation by reference of 

the NEC. Part 57 of Title 30 of the Code sets forth the health and safety 

standards for underground metal and nonmetal mines. Electrical matters are 

addressed in 30 CFR 57.12. References to the NEC can be found at a few 

places therein. These sections are applicable to both the underground and 

surface installations of underground mines. 30 CFR 57.1. Neither section 

specifically mentions the NEC in connection with grounding. 

2193 
By way of illustration, Inspector Freilino testified that if given the 

opportunity to observe a slusher installation at the Climax Mine with a 

starter leg wire containing two conductor cables such as Exhibit 0-4, he 

would consider the operator in violation of 30 CFR 57.12-25 5/ (Tr. I at 

270-271). This section of the Code embodies a mandatory standard requiring 

all metal enclosing or encasing electrical circuits, except as relates to 

battery-operated equipment, to be grounded or provided with equivalent protection. The inspector described the allegedly applicable NEC requirements 

(Tr. I at 286-287), and opined that the failure to adhere to those requirements renders a grounding system inadequate within the meaning of 30 CFR 

57.12-25 (Tr. I at 270-289). 

At this point, it is important to bear in mind the limited purpose for 

which the inspector's testimony has significance. It is not being used to 

determine whether the condition or practice cited in the imminent danger 

order of withdrawal constitutes a violation of 30 CFR 57.12-25. Whether the 

cited condition or practice fits the technical definition of a codified 

violation is not an issue in a proceeding to review an imminent danger withdrawal order. Freeman Coal Mining Corporation, 2 IBMA 197, 80 I.D. 610, 

1973-1974 OSHD par. 16,567 (1973). His testimony merely reflects the opinion 

of an expert in the field of electrical matters in underground metal and 

nonmetal mines as to which provision of the Code requires adequate grounding 

and as to why adequate grounding should be evaluated under that section with 

reference to the NEC. Although this determination presents a question of 

law, the inspector's opinion gives some guidance as to how experts in his 

field view the practical difficulties encountered in determining whether a 

given grounding system is adequate. 

A review of the various standards codified under 30 CFR 57.12 leads to 

the conclusion that those provisions of the NEC addressing the grounding of 

electrical systems have not been incorporated into the Code, and hence are 

not specifically applicable to underground metal and nonmetal mines. The 

fact that portions of the NEC are both mentioned by and incorporated into 

certain provisions of 30 CFR 57.12 indicates that the drafters were aware 

of the NEC and its various provisions. The fact that their informed judgment led them to include portions of it in certain contexts compels the 

conclusion that the failure to incorporate its provisions in other contexts 

resulted from a conscious determination that no specific requirements as to 

the unmentioned provision were to apply. 

Exhibits M-27 and M-28 do not support the proposition that the inspectors have been directed to apply the NEC grounding standards in assessing 

the adequacy of grounding systems. Exhibit M-27 makes reference to it only 

5/ 30 CFR 57.12-25 provides: "Mandatory. All metal enclosing or encasing 

electrical circuits shall be grounded or provided with equivalent protection. This requirement does not apply to battery-operated equipment." 

2194 
in connection with section 12-1 of Part 57, the Code standard which states 

that "[c]ircuits shall be protected against excessive overload by fuses or 

circuit breakers of the correct type and capacity." 

Exhibit M-28 is a more complex document. Its references to 30 CFR 

57.12-20 and 57.12-25 are significant in the instant case. With respect to 

30 CFR 57.12-20, it cautions that "[r]eferences for application of insulating mats or platforms should not be deemed an exemption by not conforming 

with established rules of the 'National Electrical Code.'" However, its 

discussion of 30 CFR 57.12-25 makes no affirmative reference to the NEC, but 

merely states that "[a]ll grounding shall conform to accepted electrical 

standards and codes."· It is unclear whether this statement reflects an 

intent on the administrator's part to apply the NEC or not as relates to 

grounding. A permissible interpretation of it would be that all grounding 

shall conform to accepted electrical standards and codes applicable to 

underground mining. As noted previously, the NEC specifically exempts from 

its coverage electrical installations underground in mines. Accordingly, 

Exhibit M-28 cannot be construed as specifically requring the application 

of the NEC in such case. 

Accordingly, for the reasons set forth above, I conclude that the NEC 

is not specifically applicable to grounding requirements for installations 

underground in metal and nonmetal mines. 

B. The Imminent Danger 

MSHA inspector James Enderby visited the Climax Mine at approximately 

6:45 a.m. on August 31, 1978, to do asbestos fiber sampling in one of the 

slusher dashes on the 600 level of the mine (Tr. I at 81, 107-108). The 

inspector proceeded to the 615-1~ slusher dash, arriving there at approximately 8:20 a.m. (Tr. I at 118). Mr. Dennis Martinez, the union representative, Mr. Andy Burkhart, the slusher operator, and Mr. Walter Florence, 

Climax's industrial hygiene technician, accompanied him (Tr. I at 118). At 

approximately 12:40 p.m., Mr. Martinez observed the slusher's starter leg 

wire, a cable running from the starter switch on the rib across to and 

between the driveguard and the main part of the slusher. The cable ran 

over the driveshafts located between the driveguard and the main part of 

the slusher (Tr. I at 45-47; Exhs. M-4, M-10, M-10-A). 

According to Mr. Martinez, the cable was touching the motor driveshaft 

and was resting on a "lightly rounded" edge of the driveshaft (Tr. I at 47, 

50-51, 69). This driveshaft was turning when the motor was in operation 

(Tr. I at 51). Mr. Martinez described the cable as having what appeared to 

be a cut or groove worn in it. He concluded that this defect had been 

caused by the cable being in contact with the rotating driveshaft (Tr. I at 

48, 53-54). His observations led him to conclude that the cable was unsafe 

because he thought that he could see something white on the cable, which 

indicated to him that the insulation was almost ready to wear through 

(Tr. I at 54, 69). 

2195 
Mr. Martinez testified that he first observed the cable when the last 

car of the muck train had been approximately half filled by the slusher 

(Tr. I at 57-58). He thereupon attempted to attract the inspector's attention (Tr. I at 59-63). However, the high noise level prevented the inspector from immediately understanding what Mr. Martinez' signal related to 

(Tr. I at 62-64). Consequently, the slusher was not turned off until the 

last car on the muck train had been filled (Tr. I at 63, 147-148). 

Immediately after the slusher was switched off, Inspector Enderby 

turned around to see what Mr. Martinez wanted (Tr. I at 148-149). The 

inspector testified that Mr. Martinez told him that the cable appeared to 

have a "hole" in it (Tr. I at 149). The inspector looked between the driveguard and the slusher body from the draw hole side of the slusher, but was 

unable to see the worn spot (Tr. I at 149). Mr. Martinez then picked up the 

cable, turned it over and laid it atop the driveguard to show the inspector 

the worn spot (Tr. I at 149-150). The inspector testified that he got to 

within approximately 12 to 15 inches of the subject portion of the cable 

and that he thought he saw a bare wire (Tr. I at 150). He described what 

he observed as "a cut or worn section with a slightly black spot inside the 

filler, which is on the underside of the outer insulation jacket" (Tr. I at 

150). The inspector stated that the perceived possibility of electrocution 

would have prevented him from placing his hand on the bare spot (Tr. I 

at 252). Thereafter, the inspector informed Mr. Florence-that he was going 

to issue an order closing the dash until the wire was fixed (Tr. I at 155). 

The order was issued at 12:42 p.m. (Exh. M-1). He returned to the area at 

approximately 1:32 p.m. and observed the electrician finish wrapping the 

outer jacket of the cable with electrical tape (Tr. I at 158-159). The 

order was abated at 2 p.m. (Exh. M-1). 

The question presented is whether the subject order of withdrawal was 

validly issued. The controlling issue is whether the condition cited by 

Inspector Enderby constituted an imminent danger within the meaning of 

section 107 of the 1977 Mine Act, as that term is defined by section 3(j) 

of the Act. 

Section 3(j) of the 1977 Mine Act defines an imminent danger as "the 

existence of any condition or practice in a coal or other mine which could 

reasonably be expected to cause death or serious physical harm before such 

condition or practice can be abated." 

Both the Interior Board of Mine Operations Appeals (Board) and the 

Federal courts had occasion to address the term "imminent danger" in a 

series of decisions arising under the Federal Coal Mine Health and Safety 

Act of 1969 (1969 Coal Act). In Freeman Coal Mining Company, 2 IBMA 197, 

80 I.D. 610, 1973-1974 OSHD par. 16,567 (1973), the Board interpreted it 

as follows: 

It bears repeating that the statutory definition of the 

term "imminent danger" is "the existence of any condition or 

practice in a coal mine which could reasonably be expected 

2196 
._ ..... 

to cause death or serious physical harm. before suc.h c()ndition or practice can be abated." The word "reasonablyn 

necessarily means that the test of imminence is objective 

and that the inspector 1 s subjective opinion need not be 

taken at face value. It also suggests that each case must 

be decided on its own peculiar facts. The question in every 

case is essentially the proximity of the peril to life and 

limb. Put another way: would a reasonable man, given a 

qualified inspector's education and experience, conclude that 

the facts indicate an impending accident or disaster, threatening to kill or to cause serious physical harm, likely to 

occur at any moment, but not necessarily immediately? The 

uncertainty must be of a nature that would induce a reasonable man to estimate that, if normal operations designed to 

extract coal in the disputed area proceeded, it is at least 

just as probable as not that the feared accident or disaster 

would occur before elimination of the danger. 

This decision was subsequently affirmed by the united States Court of 

Appeals for the Seventh Circuit. Freeman Coal Mining Company v. Interior 

Board of Mine Operations Appeals, 504 F.2d 741 (7th Cir• 1974). 

In Old Ben Coal Corporation v. Interior Board of Mine Operations 

Appeals, 523. F.2d 25 (7th Cir. 1975), the Petitioner, Old Ben, argued that 

the term "imminent danger" was intended to apply only to situations presenting an actual, immediate danger. The court declined to adopt this interpretation, noting that in Freeman, supra, it had "rejected the contention that 

'imminent danger' was intended to apply only to situations involving immediate danger." 523 F.2d at 33. 

In rejecting the Petitioner's contention that the test for "itm11inent 

danger" should be limited to a "reasonable likelihood" of danger, the cou!'t 

noted that a similar contention had been considered and rejected by the 

United States Court of Appeals for the Fourth Circuit in Eastern Associated 

Coal Corporation v. Interior Board of Mine Operations Appeals, 491 F.2d 277, 

278 (4th Cir. 1974), aff 'g Eastern Associated Coal Corporation, 2 IBMA 128, 

136, 80 I.D. 400, 1971-1973 OSHD par. 16,187 (1973). The court observed 

that Eastern had argued in the Fourth Circuit that a "danger is imminent 

only if there is a reasonable likelihood that it will result in inJury 

before it can be abated." 523 F.2d at 33. The Old Ben court quoted with 

approval the following passage from the Fourth Circuit's opinion: 

The Secretary determined, and we think correctly, that 

"an imminent danger exists when the condition or practice 

observed could reasonably be expected to cause death or 

serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the 

dangerous condition is eliminated." [Emphasis in original.] 

Administrative Law Judge Fauver was presented recently with an opportunity to address the subject of itm11inent danger withdrawal orders issued 

2197 
\ 

pursuant to the Federal Mine Safety and Health Act of 1977. Consolidation 

Coal Company, Docket No. MORG 78-355 (February 28, 1979). Although the 

language of the 1977 Mine Act is the same as the language of the 1969 Coal 

Act as relates to the subject of "imminent danger~" the legislative history 

of the 1977 Mine Act disavows any intent on the part of Congress that the 

Commission adhere to that portion of the Board's requirement in Freeman, 

supra, that "it is at least as probable as not that the feared accident or 

disaster would occur before elimination of the danger." The Senate 

Committee Report states: 

The Committee disavows any notion that imminent danger 

can be defined in terms of a percentage of probability that 

an accident will happen; rather the concept of imminent 

danger requires an examination of the potential of the risk 

to cause serious physical harm at any time. It is the Committee's view that the authority under this section is 

essential to the protection of miners and should be construed 

expansively by inspectors and the Commission. 

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

HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 626 (1978). 

Additionally, the legislative history makes it equally clear that the 

"imminent danger withdrawal order is designed to afford miners immediate 

protection in those situations where a condition or practice in a mine could 

reasonably be expected to cause death or serious physical harm before such 

condition or practice can be abated." S. Rep. No. 95-181, 95th Cong., 

1st. Sess. (1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE 

SAFETY AND HEALTH ACT OF 1977 at 626 (1978) (emphasis added). The fact that 

such orders are intended to provide miners with immediate protection under 

the above-described conditions, indicates that the benefit of any doubt 

should be resolved in favor of withdrawal. See, District 6, United Mine 

Workers of America v. United States Departme~of the Interior Board of Mine 

Operations Appeals, 562 F.2d 1260, 1267 (D.C. Cir. 1977). 

In a review proceeding involving an imminent danger withdrawal order, 

MSHA is under an obligation to go forward with the evidence and make out a 

prima facie case. Thereafter, under the rules of procedure in effect when 

this proceeding was commenced and at the time of the hearing, the ultimate 

burden of proof was placed on the operator to overcome MSHA's case by a 

preponderance of the evidence with respect to each element of proof-in 

dispute, except as relates to a violation of law. Zeigler Coal Company, 

4 IBMA 88, 82 I.D. 111, 1974-1975 OSHD par. 19,478 (1975); Old Ben Coal 

Corporation, 523 F.2d 25, 39-40 (7th Cir. 1975). Accordingly, the ultimate 

burden of proof with respect to the lack of imminence in the danger was 

upon the operator in this review proceeding. 

It is my opinion that such rule of law is applicable to the ultimate 

determination of this case. However, beyond this, MSHA has not only presented a prima facie case, but it has also preponderated over the evidence 

of the Applicant. 

2198 
Exhibit 0-9 is a schematic drawing of the electrical system for a typical slusher at the Climax Mine installed after 1971 or 1972 (Tr. II at 61, 

125, 131). Mr. Pupera indicated that the electrical system shown in Exhibit 

0-9 was the same as the electrical system on the 615-14 slusher, although 

he was not completely certain (Tr. II at 131-132). Since Mr. Williams 

testified that the 615-14 slusher was installed in late 1976 or early 1977 

(Tr. II at 221), I find that it is more probable than not that they are 

the same. 

The slusher had a 150-horsepower motor (Tr. I at 262, Exh. 0-9). 

Inspector Freilino testified that he believed the slusher installations were 

460 or 480, three-phase, 60-cycle AC (Tr. I at 322, 350). 6/ The slusher 

motor was provided with electricity through a 2-0 cable containing three 

interspersed No. 6 ground wires. These ground wires are connected to the 

frame of the slusher and back to the grounding conductors that run through 

the drift of the mine. This grounding conductor runs through the drift of 

the mine and returns to the substation power source and is connected to the 

grounding point of the entire power system (Tr. II at 60, 70-71; Exh. 0-9). 

Power was provided from a 480-volt substation located 1,000 feet down the 

drift from 615-14 (Tr. II at 63-64). According to Inspector Freilino, these 

150-horsepower slusher installations have motor speeds of 900 rpms (Tr. I 

at 261-262). 

The starter leg wire runs from a switch on the mine wall to the transformer in the switch vault (Exh. M-4, 0-9). This switch operates a coil or 

an electric magnet, described as the motor control relay, which supplies 

power to the slusher motor (Tr. I at 265, 316). The starter leg wire 

carries approximately 120 volts (Tr. II at 208). The control circuit has a 

15-amp circuit breaker located in one wire coming from the secondary to the 

transformer (Tr. II at 67, 91, 177, 217, Exh. 0-9). There are two 600-volt, 

3-amp fuses in the wires to the H-480 volt transformer (Tr. II at 67, 92). 

These fuses were in each leg of the wire coming from the phase conductors 

on the primary side of the transformer (Tr. II at 67). This transformer 

reduces the voltage entering the control circuit from 480 volts to 120 volts 

(Exh. 0-9). Grounding is provided by a bare, external No. 4 copper wire 

running from the slusher frame back to the switch vault and from the slusher 

frame to the _slusher starter switch (Exh. 0-9; Tr. II at 60, 64, 68). 

!!._/ The precise voltage of the slusher motor is not clearly revealed by the 

record. The best available evidence indicates that its voltage lies between 

440 and 480 volts (Tr. I at 322; Tr. II at 66-67, 92, Exh. 0-9). Exhibit 

0-9 reveals that power was transmitted from the 480 volt substation to the 

slusher motor along cables denominated at one point as 440 volt power cables. 

Presumably, this means that the slusher motor operates on 440 volts, although 

~either Exhibit 0-9 nor the testimony of the witnesses reveal the signicance, 

if any, arising from connecting the slusher to the 480 volt substation via a 

440 volt cable. In view of the other evidence contained in the record, this 

ambiguity does not affect the ultimate disposition of this case. 

2199 
The starter leg wire (red line on Exhibit 0-9) was a No. 12, twoconductor, CV-type, SO cord (Tr. II at 217, 373). It was described as being 

a 20-amp cable (Tr. II at 217). Mr. Williams testified that the outer 

jacket was composed of neophrene and that he believed the inner insulation 

was composed of a butyl-type rubber (Tr. II at 217). Mr. Pupera testified 

that the cable's inner and outer insulation were flame-retardant (Tr. II 

at 105). Mr. Williams stated that since the inner insulation was 600-volt 

insulation, it would be three sixty-fourths of an inch thick (Tr. II at 

371). 

The outer jacket is comprised of considerably stronger material than 

the inner insulation (Tr. I at 342). Accordingly, the inner insulation is 

damaged more easily than the outer jacket (Tr. II at 119). 

Mr. John Reddington, the electrician who abated the condition cited by 

Inspector Enderby, inspected the ground connections visually after the order 

was issued (Tr. II at 159). He found the ground wires both intact and tight 

in the lugs. They were described as tight on both the frame and the toggle 

swtich (Tr. II at 157-159). He inspected the No. 4 ground wire and found it 

properly attached to the motor frame (Tr. II at 158). The No. 6 ground 

wires and the 2-0 cable were properly attached (Tr. II at 158-159). 

Mr. Martinez testified that when he first observed the starter leg wire, 

it was in contact with a flange located on the motor driveshaft (Tr. II at 

295-298, 303-308; Point A on Exh. M-13). The cable was being supported by 

the 90-degree edge of the flange (Tr. II at 295-298; Point A on Exh. M-13). 

The best available evidence indicates that the flange rotated with the 

driveshaft (Tr. I at 50-51; 68; Tr. II at 298, 301-302). The driveshaft 

rotated at approximately 875 to 900 rpms (Tr. I at 261-262; Tr. II at 

211-212). Mr. Williams testified in behalf of the Applicant that, assuming 

the wire was in the position indicated on Exhibit M-13 with the driveshaft 

turning, it would have taken the cable (Exh. 0-4) 4 to 6 weeks of continuous 

contact with the flange to develop the amount of wear present (Tr. II at 

368-369). Similarly, he testified that it would have taken an additional 

3 weeks for the cable to wear through the remainder of the inner and outer 

insulation and expose a bare conductor (Tr. II at 365-370). Additionally, 

he indicated that the presence of oil or lubricants would decrease the rate 

of wear (Tr. II at 367-368). According to Mr. Williams, oil does not have 

an immediate deteriorating effect on the outer jacket of the so~type cable. 

He did not know whether the inner insulation of such cable is oil resistant 

(Tr. II at 374-375). Contrary to the position of the Applicant's witnesses, 

Mr. Freilino, on behalf of MSHA, was of the opinion that the insulation on 

the wire could wear through at any time (Tr. I at 345). 

In view of the actual condition of the cut in the wire, the claims of 

Applicant's witnesses that the wire would not constantly remain in the same 

place on the shaft, and also in view of the requirement of the Applicant that 

the slusher operator check the electrical cable, ground wires and insulated 

conductors for damage, to report any damage to the electrician, it seems 

incredible that the cutting of the wire took place over a long period of 

time without detection sooner. 

2200 
The inspector thought that the inner conductors were bare, and issued 

the order of withdrawal in accordance with this belief (Tr. I at 150, 152, 

187; Exh. M-1). However, after examining the cable at the hearing, he 

admitted that bare conductors were not exposed (Tr. I at 250). The outer 

jacket had been worn through and part of the inner insulation had been worn 

(Tr. I at 295; Exh. 0-4). Accordingly, the question of imminent danger 

must be evaluated with reference to the actual condition of the cable on 

August 31, 1978, in determining whether a reasonable man, given a qualified 

inspector's education and experience, would objectively estimate that if 

normal mining operations in the disputed area continued, the feared accident 

or disaster would occur before elimination of the danger. In the instant 

case, this requires ari evaluation of both the electrocution hazard and the 

fire hazard. 

The testimony of three expert witnesses, Inspector Freilino, Mr. Pupera, 

and Mr. Williams, provides the most probative evidence of the electrocution 

hazard. 

The first consideration is the two-part grounding system described 

above. The first part of the system entails the bare No. 4 copper wire used 

to ground the 120-volt control circuit, while the second part refers to the 

three No. 6 wires used to ground the slusher. With respect to the former, 

Inspector Freilino characterized it as inadequate because it failed to comply with the.NEC requirements. Therefore, in assessing his answers to 

various hypothetical questions in which he was asked to assume that the 

grounding on the control circuit was either inadequate or adequate, it must 

be borne in mind that the inspector defines the term "adequate," at the very 

least, as a grounding system in compliance with the NEC, while defining an 

"inadequate" system as one that is not in compliance with the NEC. 

Mr. Pupera, on the other hand, viewed the control circuit grounding system 

as adequate. In his opinion, the location of the wire did not create a 

problem by way of increasing the impedance to the ground (Tr. II at 69-70). 

In this regard, it should be borne in mind that the basic purpose of a 

ground wire is to provide the lowest possible impedance for the flow of 

fault current (Tr. II at 69-70). If 

7/ According to Mr. Pupera, a grounding system is basically for the purpose 

of returning current to its power source. There are two types of grounding 

systems--an equipment ground and a system ground. Equipment grounding is 

installed to protect personnel from shock hazards. This is accomplished by 

providing a path of very low resistance in comparison to the human body, 

since current will follow the path of least resistance. If the grounding 

system is properly set up, electricity will take the path through the 

grounding system rather than through the human body because the resistance 

within the grounding system will be lower than the resistance of the human 

body (Tr. II at 58-59). According to Mr. Pupera, the electrical systems on 

the slushers are equipment-grounded and are connected to the system ground 

(Tr. II at 59). 

2201 
With respect to the three No. 6 wires used to ground the slusher, the 

record reveals that they were interspersed throughout the 2-0 cable that 

provided power to the slusher motor. Assuming that Inspector Freilino 

adequately described all of the relevant NEC grounding requirements, then 

this system is adequate even under the NEC's allegedly more stringent provisions. Therefore, in assessing his answers to hypothetical questions, it 

must be assumed that this portion of the grounding system was viewed as 

adequate by the inspector. These factors have been taken into consideration 

in assessing the various hypothetical questions addressed to the witnesses. 

They are too numerous to repeat. The portions material to the resolution 

of this matter have been taken into account in the passages appearing below. 

The fact that the inner insulation had not been completely worn through 

so as to expose a bare conductor does not preclude the existence of a shock 

or fire hazard. One of the key factors is the dielectric strength of the 

insulation. Inspector Freilino described the concept of dielectric strength 

as "the insulating ability of a material that can be determined through 

laboratory test, and it is usually assigned a value of so many volts per 

thousandths of an inch" (Tr. II at 398). A fault condition exists whenever 

current flows through a circuit in an undirected or unintentional path (Tr. 

II at 398). In order "to get into" a fault condition, the dielectric 

strength would have to be lower than the voltage passing through the circuit 

(Tr. II at 399). Once the dielectric strength is less than the voltage 

being carried in the cable, the insulation breakdown is almost instantaneous 

(Tr. II at 401-402). The wire need not be bare, but merely redu~ed to the 

point where the insulation would be insufficient to restrain the 120 volts 

from leaking through to the grounded, object (Tr. II at 398). At this point, 

the cable would become, in effect, a bare conductor even though some insulation remained. At this point, a person could receive a shock from touching 

the worn area (Tr. II at 402). The same holds true for the fire hazard 

(Tr. I at 293-294). 

At one point in his testimony, Mr. Pupera testified that no shock 

hazard would be present if the insulation had worn off and a bare conductor 

made contact with either the slusher motor frame or the driveshaft. He 

attributed this to the grounding system on the slusher which would trip 

the circuit breaker on the secondary of the control transformer (Tr. II at 

90). Mr. Pupera stated that the 15-amp circuit breaker on the 120-volt 

starter leg wire would trip in approximately l/120th of a second. This 

would occur if the bare conductor made contact with either point as long as 

the circuit was solidly grounded to the slusher frame, i.e., in "good contact" with 'the slusher frame (Tr. II at 91, 138-139). Mr:- Pupera stated 

that if the circuit breaker failed to trip under the ground fault condition, 

pne or both of the 3-amp fuses on the lines to the 480-volt transformer 

would blow open and deenergize the circuit (Tr. II at 92). 

As for the grounding protection, he testified that if a bare conductor 

made contact with one of the two above-mentioned points, the ground would 

provide a low impedance path back to the power source lower than the human 

body's impedance (Tr. II at 92). Mr. Pupera claimed that no shock hazard 

would be present for a person touching the slusher frame (Tr. II at 93). 

2202 
He further testified that if none of the ground wires were attached to 

the slusher motor frame, the operator would not be exposed to a shock hazard 

if a bare wire made contact with the frame. He attributed this to the 

manner in which the slushers were installed, resulting in a low impedance 

in connection with the earth itself. According to Mr. Pupera, the earth 

becomes another grounding conductor back to the power source. He even 

described this earth connection as far more reliable than the ground wires 

(Tr. II at 94). To the best of his recollection, tests of the earth connection in the 615-14 slusher showed an impedance of 2.5 ohms (Tr. II at 94). 

He classified this figure as much lower than the human body's resistance 

(Tr. II at 98). He felt that the slusher operator's resistance would be 

well in the hundreds of thousands of ohms because he is required to wear 

rubber gloves and boots (Tr. II at 98). 

However, he later admitted that an individual not wearing gloves or 

boots could receive a shock if he made contact with a bare wire on the 

starter circuit. The extent of the injury sustained would depend upon the 

amount of current flowing through the body. He acknowledged that under the 

proper conditions, a lethal injury could occur (Tr. II at 139-140). This 

would occur if the bare wire was not in contact with the slusher because 

there would be no fault current flowing (Tr. II at 140). 

A review of the testimony reveals that the amount of current, in terms 

of amperes, that can reasonably be expected to pass through the human body 

can be calculated with reference to Ohm's Law. According to Mr. William's, 

Ohm's Law states that amperage equals voltage divided by resistance (Tr. 

II at 235; Climax's Posthearing Brief at p. 14). Inspector Freilino testified as to the relationship between milliamps and physical injury. Muscular 

contraction starts at approximately 10 milliamps. Ventricular fibrillation 

could occur at 50 to 75 milliamps. The heart stops beating at approximately 

100 milliamps (Tr. II at 410). According to the inspector, one would not 

reasonably anticipate serious injury below the 10 milliamp range (Tr. II 

at 414-415). He testified that prolonged exposeure to 10 milliamps can produce permanent damage to internal organs (Tr. II at 411). The average 

resistance of the human body, according to the published standard for the 

average resistance hand-to-hand across the chest cavity, is 1,000 ohms (Tr. 

II at 412). Accordingly, application of the Ohm's Law formula reveals that 

120 volts divided by 1,000 ohms yields .12 amps or 120 milliamps. This 

figure is well within the lethal range. As stated above the Applicant's 

expert, Mr. Pupera,stated that with the proper conditions a person touching 

a bare 120 volt wire could sustain a lethal shock (Tr. 139-140). 

In summary, an individual touching a bare 120-volt wire that was not 

in contact with the metal portion of the slusher could, under the proper 

conditions, receive a fatal shock. A fault condition can occur when the 

dielectric ~trength of the cable is lower than the voltage passing through 

the circuit, and this can be induced by a reduction of the insulation. 

This results in an insulation breakdown that is virtually instantaneous, 

with the insulated cable assuming the properties of a bare wire, and with 

the same attendant shock hazards. The condition of the wire, viewed in 

2203 
conjunction with the possibility of .12 amps passing through the body, 

reveals that a danger was present. The fact that a person wearing dry boots 

in good condition would not receive a shock (Tr. II at 425-428) is not controlling. The record clearly establishes that the presence of water sprays 

rendered the area damp (Tr. I at 185-186). 

Climax has not established that the danger was not imminent. The testimony adduced with respect to the tripping time of circuit breakers is 

insufficient to sustain this burden. Also MSHA, by a preponderance of the 

evidence has established that an inn:ninent danger existed. This is 

especially true in light of Mr. Pupera's above-mentioned testimony (Tr. II 

at 139-140). The tripping of this breaker would be dependent upon the 

creation of a ground fault condition which would not occur until the wire 

was touched by human hands if the damaged spot was facing upward. Thus, a 

fatal injury could be sustained. Additionally, I find it highly improbable 

that this cable would have remained in continuous contact with the metal 

portions of the slusher. This is based upon two sets of observations. 

First, the cable (Exh. 0-4) contains a second, similar groove, although it 

has not penetrated beneath the outer jacket. The mere presence of the 

second groove indicates.that the cable was moved at some point in time and 

further indicates that the cable would probably be moved again in the ordinary course of mining. Second, the slusher operator would have to move the 

cable in order to properly examine it in the fashion dictated by the company 

(Tr. II at 117). 

Most of the evidence adduced by Climax addresses the probability of 

occurrence. As indicated by the legislative history of the 1977 Mine Act, 

the probability of occurence is not a controlling factor in determining the 

validity of an imminent danger order. 

The condition of the wire was such that not only was the outer jacket 

of the cable worn through but some of the inner insulation was also worn. 

Exactly how much could not be determined by the visual examination which an 

inspector could make under the circumstances here. Therefore, a high 

potential of risk of serious phusical harm existed. Accordingly, a reasonable man, given a qualified inspector's education and experience would 

objectively estimate that if normal mining operations in the disputed area 

continued, a serious shock or electrocution could occur before elimination 

of the danger. 

Accordingly, it is found that the electrocution hazard presented an 

imminent danger within the meaning of the 1977 Mine Act. 

In this regard it must be remembered that the legislative history of 

the 1977 Mine Act, as well as recent decisions of the Federal courts, have 

evolved to the point where the benefit of any doubt must be cast in favor 

of withdrawal. 

As referred to previously in this decision, the legislative history of 

the 1977 Mine Act in4icates that imminent danger is not to be "defined in 

2204 
terms of a percentage of probability that an accident will happen; rather 

the concept of imminent danger requires an examination of the potential of 

the risk to cause serious physical harm at anytime." 

The legislative history further indicates that "the authority under 

this section is essential to the protection of the miners and should be construed expansively by inspectors and the Commission." The legislative history goes on to point out that an: "imminent danger withdrawal order is 

designed to afford miners immediate protection in those situations where a 

condition or practice in a mine could reasonably be expected to cause death 

or serious physical harm before such condition or practice can be abated." 

s. Rep. No. 95-181, 95th Cong., 1st. Sess. (1977) supra. 

Finally one Federal court recently stated that: "[t]he safety of the 

miner is the single most crucial motivation behind the [1969 Coal Act]." 

The court went on to state that the congressional hearings, the first section of the statute and judical review "support the clear intent of Congress 

that coal mines, or areas of coal mines, in which imminent danger was found 

to exist must be evacuated at once, with the benefit of any doubt cut in 

favor of withdrawal." District 6, United Mine Workers of America v. United 

States Department of the Interior Board of Mine Operations Appeals, supra. 

As relates to the purported fire hazard, Inspector Enderby testified 

that exposed inner insulation creates a fire hazard if it is not fireretardant (Tr. I at 211). According to the inspector, electrical energy or 

heat from the conductors inside the insulation would be the source of the 

fire (Tr. I at 212). 

At one point in his testimony on November 29, 1978, Inspector Freilino 

set forth his opinions with respect to the potential fire hazard, in which 

he assumed that the starter leg wire was ungrounded (Tr. I at 293-294). 

His testimony on January 31, 1979, reflected that he had observed approximately 12 slusher installations on the Starke level. He testified that 

there are points on the machines requiring lubrication, and that he had 

seen some areas on shafts containing a small amount of grease. Foreign 

matter, such as grease, oil or moisture, entering the cable through a hole 

in the jacket will increase deterioration and eventually cause an internal 

short between the conductors. In response to a question designed to determine how such conditions could create a fire, he stated that an arcing condition would occur before the cable actually failed and tripped the breaker 

(Tr. II at 352-353). However, it is unclear whether this circumstance 

relates solely to an ungrounded starter leg wire or whether it relates to 

a cable grounded by a bare No. 4 copper wire. Considering all surrounding 

factors it cannot be found that MSHA has established a prima facie case 

of an imminent danger as relates to the fire hazard. 

V. Conclusions of Law 

1. The Applicant, Climax Molybdenum Company and its Climax Mine are 

subject to the provisions of the Federal Mine Safety and Health Act of 1977. 

2205 
2. The Administrative Law Judge has jurisdiction over the subject 

matter of, and the parties to, this proceeding~ 

3. MSHA inspector James Enderby was an authorized representative of 

the Secretary at all times relevant to this proceeding. 

4. MSHA has not established a prima facie case of imminent danger as 

relates to the alleged fire hazard. 

5. The condition of the starter leg wire on the 615-14 slusher which 

resulted in the issuance of Order of Withdrawal No. 333638 on August 31, 

1978, did constitute an imminent danger to the workers in the mine in that 

it posed an electrocution hazard. 

6. Order of Withdrawawl No. 333638 was validly issued. 

7. All of the rulings with respect to exhibits made in Part III(D) 

of this decision are reaffirmed and incorporated herein. 

8. All of the conclusions of law made in Part IV of this decision are 

reaffirmed and incorporated herein. 

VI. Proposed Findings of Fact and Conclusions of Law 

MSHA and Climax submitted posthearing briefs. Climax submitted a reply 

brief. Such briefs, insofar as they can be considered to have contained 

proposed findings and conclusions, have been considered fully, and except 

to the extent that such findings and conclusions have been expressly or 

impliedly affirmed in this decision, they are rejected on the ground that 

they are, in whole or in part, contrary to the facts and law or because 

they are immaterial to the decision in this case. 

ORDER 

Accordingly, Order of Withdrawal No. 333638 is AFFIRMED, and the 

application to vacate said order of withdrawal is DENIED. 

o n F. i!;r;;;Z :> 

Administrative Law Judge 

2206 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WILK 79-89-PM 

Petitioner A.c. No. 17-00310-05001 

v. 

North Waterfield Pit & Mill 

CIANBRO CORPORATION, 

Respondent 

DECISION 

Appearances: Ronald Glover Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

William Lee, Safety Director, Cianbro Corporation, Pittsfield, 

Maine, for Respondent. 

Before: Administrative Law Judge Michels 

This proceeding was brought pursuant to section llO(a) of the Federal 

Mine Safety & Health Act of 1977, 30 u.s.c. § 820(a). The petition for 

assessment of civil penalty was filed by MSHA on January 30, 1979. A timely 

answer was filed by the Respondent. A hearing was held in Bangor, Maine, on 

October 16, 1979, at which both parties were represented. 

This proceeding concerns one citation. Evidence was received and a 

decision thereon was rendered from the bench. The decision as it appears 

in the record, is set forth below. 

Citation No. 201013, issued July 6, 1978 

The following is the bench decision on this citation found at pages 

38-42 of the transcript. 

My decision in this matter is basically in two parts. 

First, whether or not there is a violation; and second, if 

there is a violation then I would make findings on the applicable criteria to determine the size of the penalty. Oftentimes, and perhaps here, some of the elements that are mentioned are taken into account in connection with the gravity 

or negligence findings, if in fact it is found there is a 

violation. 

2207 
This matter concerns citation number 201013, which was 

issued on July the 6th, 1978. The inspector charged a violation of 30 c.F.R. 56.11-1. He alleged that the condition 

of practice was as follows, "The ladder to the rock return 

conveyor had been removed; a safe access was not provided." 

The applicable regulation charged reads as follows, "Safe 

means of access shall be provided and maintained to all 

working places." 

In this instance, it was stipulated that the Mine Health 

and Safety Act and the applicable regulations do apply to 

this plant. So, I'll not further consider that particular 

element. 

I do state, however, on this record, that it is not a 

precedent for any future act that this particular presiding 

Judge might take, but it's based solely upon the agreement 

of the parties. So accordingly, I do find then based on the 

agreement, that the Act and the regulations are applicable 

to this plant. 

There is no dispute on certain basic facts. There is 

a walkway along the conveyor belt which is approximately four 

feet above the ground, at least at the lower end. This walkway, it is clear from the testimony, was a working place, 

since miners did have occasion to use it for maintenance. 

There is also no dispute that normally access to that walkway would be by means of ladder which was propped up at the 

end of the walkway. This ladder was not located at the end 

of the walkway on the day the inspector made his inspection. 

There is * * * a little dispute as to where it may have been, 

but it is clear that it was not located against the walkway 

on that occasion. 

It is further clear and admitted that this ladder might 

be used on some occasions in other parts of the plant and 

could be a considerable distance from the walkway. 

It is further clear and admitted that access is required 

to this walkway at about several times a week for the purposes of maintenance. 

The only real question perhaps is whether this regulation requires, in this particular instance at least, a permanent means of access or a continuous means of access or 

whether access need only be provided at such times as the 

walkway is used. 

It would be my view and decision is based on it, that 

a continuous means of access is necessary for access by 

miners to a working place, including this walkway. It would 

2208 
be my further view that this is somewhat more than technical. 

I'll take into account that no miners were ·seen using this 

walkway by the inspector; and furthermore, the testimony 

shows that no one has ever observed a miner using that walkway unless the ladder was there; that element would come into 

the gravity of the violation. The fact remains, however, that 

somehow, sometime, there will be an emergency occasion and 

that ladder might not be there and a miner would find the 

occasion to use that walkway and attempt to gain access without the ladder and thus subject himself to possible injury. 

Accordingly, I do find that there is a violation of 30 C.F.R. 

56.11-1 as charged. My findings on the criteria are as 

follows: 

A history of prior violations: there is little or no indication of prior violations in the record and I find that there 

is no such history. The operator's size: it was stipulated 

that this company is small to medium in size. There is no 

evidence that the penalty to be assessed here today would 

have any effect on the operator's ability to continue business. Abatement: the inspector testified, and I would accept 

his testimony as a finding that the violation was abated in 

very good faith immediately. Furthermore, the operator has 

demonstrated even further good faith by bolting a permanent 

ladder to this location. 

That leaves two remaining points. Now because of the 

circumstances that were demonstrated here, I'll find slight 

negligence. In my view, it is the type of situation in which 

the operator should have known they needed a continuous means 

of access. Nevertheless, the testimony does indicate that the 

operator in honesty and in good faith believed that that would 

not be used except if the ladder was in place. The operator 

had no reason to believe otherwise and had never been warned 

of an unsafe situation. And so, I would take all that into 

account and under the circumstances [find that the operator] 

demonstrated slight negligence. 

Gravity: The lack of a means of access, it seems to me, 

shows a serious violation. This is mitigated to some extent 

in this case by the fact that there is no evidence at 

all that anybody used that means of access unless that ladder 

was in place. Nevertheless, it could have been so used. And 

if a miner had attempted to gain access without a ladder the 

miner might have seriously injured himself in a fall or in 

getting caught in the moving machinery. Taking into account 

all these circumstances, the very good faith of the operator 

and its slight negligence because of the circumstances, I 

would reduce the penalty origina1ly assessed by the assessment officer from $34.00 to $10.00, which I believe would be 

a nominal penalty under the circumstances. 

2209 
The above bench decision is AFFIRMED. 

It ~ ORDERED that Respondent pay the penalty of $10 within thirty (30) 

days of the date of this decision. 

• r . 

--.f'- __,,;:-- , #, l /, J ,. /'./ ,Y'7 \),-~d '.!Y -- . , .:_/ ,4'-tUtP~~--1 , ,, _,,//'~-"!. . ~ ;e:_.., 

Franklin P. Michels 

Administrative Law Judge 

Distribution: 

Ronald Glover, Esq., Office of the Solicitor, u.s Department of Labor, 

Room 1803, JFK Federal Building, Boston, MA 02203 (Certified Mail) 

William H. Lee, Safety Director, Cianbro Corporation, P.O. Box D, 

Hunnewell Ave., Pittsfield, ME 04967 (Certified Mail) 

2210 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMl~SION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52aS LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. NORT 79-81-P 

NORT 79-92-P 

VA 79-51 

Petitioner 

v. 

PARAMOUNT MINING CORPORATION, 

Respondent 

Deep Mine No. 5 

Docket Nos. VA 79-1 

NORT 79-80-P 

Deep Mine No. 2 

DECISION 

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

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

Petitioner; 

Galen c. Thomas, Esq., Barber Oil Corporation, New York, 

New York, for Respondent. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASES 

These cases were initiated by petitions seeking civil penalties for 

alleged violations of mandatory safety standards promulgated under the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~· By 

order issued August 31, 1979, the above dockets were consolidated for the 

purposes of hearing and decision. Pursuant to notice, the cases were 

called for hearing on the merits on November 15, 1979, in Big Stone Gap, 

Virginia. Allan Garrett Howell, a Federal coal mine inspector, testified 

on behalf of Petitioner. Melvyn Eads testified on behalf of Respondent. 

Both parties waived the filing of written proposed findings of fact and 

conclusions of law. 

MOTION TO PRECLUDE 

With respect to Docket No. VA 79-51, Respondent filed prior to the 

hearing a motion to preclude Petitioner from offering evidence on any 

2211 
matter concerning which interrogatories, admissions, or production of 

documents were requested. The grounds for the motion were that the 

responses were inadequate and not timely filed. I denied the motion on 

the record and hereby confirm that ruling. 

DOCKET NO. NORT 79-92-P 

Citation No. 35619, issued November 15, 1978, charged a violation of 

30 CFR 75.200. Following the testimony regarding this citation, I issued 

a decision from the bench as follows: 

JUDGE BRODERICK: Very well. 

With respect to the violations charged in Citation Number 035625 -- I've got the number wrong. This is 035619. I 

find and this finding will apply to all alleged violations 

in these docket numbers -- that the respondent, on the basis 

of the stipulation that between six hundred twenty-one thousand and seven hundred twenty-one thousand tons of coal were 

produced in the year 1978, is a large operator. There is no 

evidence in the record that penalties would affect the operator's ability to continue in business, and, therefore, I 

find any penalties assessed herein would not affect its 

ability to continue in business. 

1he petitioner does not contend that the respondent has 

such a history of prior violations that penalties otherwise 

appropriate should be increased because of the history and, 

therefore, I will not increase any penalty I might assess 

in this case because of respondent's history. 

The violation charged in the citation at issue is a 

violation of 30 CFR 75.200, and the citation charges the 

respondent violated certain provisions of its approved roof 

control plan, in that there were areas of unsupported roof, 

five separate areas of unsupported roof in the section of 

the mine involved, namely the main section. 

I find on the basis of the evidence presented that 

there were areas of unsupported roof and there were violations of the approved roof control plan as follows: In 

the crosscut between the belt entry and the Number Three 

heading -- the belt heading in the Number Three heading, 

there· was an area approximately twenty by fifteen feet of 

unsupported roof; I find that in the Number Two heading, 

there was an area in excess of twenty feet from the face 

to the last roof supports, and that the heading was 

approximately twenty feet wide; I find, also, that the 

continuous miner used in this heading was approximately 

twenty feet from the extreme bit to the pull [control] 

2212 
area in the miner, therefore, if the miner was cutting in 

that area, the operator of the continuous miner was under 

unsupported roof; I find that in the Number One heading, 

there was an area of unsupported roof approxiniately 

eleven feet back of the face in the heading, and that heading was approximately twenty feet wide; I find that there 

was an area inby the Number One heading where the miner 

apparently had slabbed to the left while cutting the Number 

One heading, and this area was approximately four feet in 

depth; there were permanent supports between the crosscuts, 

~ich were approximately eight feet from the face area of 

the slabbing; I find there was an area -- another area 

in the Number One heading to the left approximately 

fifteen feet by eleven feet where there was unsupported 

roof; I find, also, there were danger boards on each rib 

in the crosscut between the belt heading and the Number 

three heading; I find there had been a prior rock fall in 

the area between the belt heading and the Number three heading, and that the rock had been cleaned up; there also had 

been rock falls in the area of the Number Two heading, and 

that the rock fall in this area was in an irregular pattern 

and varied from one to three and a half feet; I find that 

the bottom in the crosscut between the belt heading in 

Number Three heading was relatively dry and was on an angle; 

there were areas of water in both the Number One and Number 

Two heading, and the bottom was very soft; the Number One 

heading was extremely high because of a rock fall, and it 

was from twelve to thirteen feet in height; in the Number 

Two heading, rock had been taken down by the miner with the 

coal; there was no danger sign in the Number Two heading; 

the continuous miner was present in the Number Two heading 

outby the crosscut; there was a danger sign in the Number 

One entry. 

Respondent had taken over this mine from another mining 

company and inspected the mine in September of 1978. Mining was not begun until mid-October, 1978. Problems were 

encountered because of an area of.old works which was 

partly crossed in this section. 

Based on these findings of fact, I conclude that the 

violation charged in Citation Number 035619 of 30 CFR 

75.200 occurred. 

Because of the number of areas involved and because of 

the extreme seriousness in the mining industry of roof 

falls, and because of the general poor condition of the 

roof in this area, I find that the violation was serious. 

The conditions found by the inspector had apparently 

not existed for a long time. There were danger signs in 

2213 
certain of the areas involved. For these reasons, I find 

that .although respondent was aware of these conditions, 

there were difficulties in immediately taking care of the 

conditions because of the extreme height of some of the 

areas of rock fall and because of the difficult mining conditions. These tend to mitigate the negligence of the 

operator. 

For that reason, the penalty will not be as large as it 

might have been in the event of a finding of negligence. 

On the basis of all the testimony submitted, I will 

assess a penalty for this violation which I have found to 

have occurred of seven hundred fifty dollars ($750). 

I hereby affirm that decision. 

DOCKET NO. VA 79-51 

Order No. 36857, issued December 21, 1978, charged a violation of 

30 CFR 75.313. Following the testimony concerning this violation, I 

issued a decision from the bench as follows: 

JUDGE BRODERICK: All right. I will find, on basis of 

all evidence which was introduced this afternoon, that the 

Government has failed to sustain its burden of proving the 

occurrence of the violation charged in the order. 

I hold that for a violation of 30 CFR 75.313, the 

G>vernment must establish that the methane monitor is 

inoperative and that coal was mined, cut or loaded while 

it was inoperative. 

1he evidence in this case does not establish that coal 

was being produced, that it was mined, cut or loaded during the time the methane monitor was inoperative. The 

monitor became inoperative, according to the evidence, on 

December 15, 1978. The order was placed for a replacement 

after the existing substitute monitor was also found to be 

inoperative. The order was placed on December 15. 

The inference which could be drawn from the testimony 

of the inspector that coal was being cut on December 15 is 

contradicted by direct testimony of the operator's and the 

company records. 

And I conclude, on the basis of all the testimony and 

the records, that coal was not being produced on December 21, 

1978, and there was no evidence it was produced after the 

monitor became inoperative on December 15. 

2214 
For these reasons, I conclude that the violation 

charged in Order Number-36857 did not occur, and, therefore, no penalty is assessed. 

I assume, because of my findings, that the legal issues 

raised by counsel for respondent are moot at this time. I 

should say, however, that I would rule that the challenge 

to the order which was raised prior to the evidence in this 

case is not properly before me in a civil penalty proceeding, 

and my ruling would be that this matter has to be decided on 

the merits and not on the motion to dismiss which was submitted at the beginning of the hearing. 

I hereby affirm that decision. 

Order No. 36858, issued December 21, 1978, charged a violation of 

30 CFR 75.316 because of the failure of the operator to maintain line 

curtains as required by its ventilation plan. On the record, the parties moved for the approval of a settlement of this violation for a payment of $475. The violation was originally assessed at $750. The 

parties stated that at certain locations the operator had removed line 

curtains becaus.e of water problems, intending to replace them with a 

different kind of curtain. The fan was shut down shortly thereafter 

and the miners were removed from the section. This reduced the gravity 

of the violation. I approved the settlement agreement. 

DOCKET NO. NORT 79-92-P 

Order No. 35625, issued November 20, 1978, charged a violation of 

30 CFR 75.200 because of a violation of the approved roof control plan. 

The parties moved for the approval of a settlement of this violation for 

a payment of $350. The original assessment was $500. The parties 

stated that the operator had encountered unexpected roof conditions and 

that he had set more temporary supports than the plan required. The 

operator was experiencing problems with the mine floor which made the 

setting of permanent supports more difficult. I approved the settlement 

agreement. 

DOCKET NO. NORT 79-81-P 

Citation No. 34338, issued October 31, 1978, charged a violation of 

30 CFR 75.200 because a heading was advanced 25 feet from the last row of 

permanent supports. The parties moved for the approval of a settlement of 

this violation for a payment of $55. The original assessment was $78. 

The parties stated that the roof .conditions were good and that there was 

a factual dispute concerning the measurements. I approved the settlement 

agreement. 

Citation No. 34339, issued October 31, 1978, charged a violation of 

30 CFR 75.200 because of an inadequate reflectorized warning device at the 

2215 
last permanent support. The parties moved for the approval of a settlement 

of this violation for the payment of $26, which was the amount of the 

original assessment. I approved the settlement agreement. 

Citation No. 35620, issued November 15, 1978, charged a violation of 

30 CFR 75.503 because of a permissibility violation on a scoop. The parties moved for the approval of a settlement of this violation for the payment of $38, which was the amount of the original assessment. No methane 

had been found in the mine. I approved the settlement agreement. 

Citation No. 35621, issued November 15, 1978, charged a violation of 

30 CFR 75.605 because of an inadequate strain clamp on a shuttle car cable. 

The parties moved for the approval of a settlement of this violation for the 

payment of $15. The violation was originally assessed at $30. The clamp 

had apparently given way just prior to the inspection, and the operator's 

negligence was minimal. I approved the settlement agreement. 

DOCKET NO. VA 79-1 

Citation No. 36161, issued November 8, 1978, charged a violation of 

30 CFR 75.200 because two rows of permanent supports had been dislodged and 

not replaced. The parties moved for the approval of a settlement of this 

violation for the payment of $1,250. The violation was originally assessed 

at $1,500. The parties stated that there was a factual dispute as to the 

length of time the supports had been dislodged. The roof conditions were 

good. I approved this settlement agreement. 

Order No. 35705, issued November 8, 1978, charged a violation of 

30 CFR 75.200 because of the operator's failure to roof bolt a 20-foot 

area. The parties moved for the approval of a settlement of this violation for the payment of $650. The original assessment was $1,500. The 

parties stated that the roof bolter was not operating at this time, that 

there was a factual dispute as to whether the area involved was a 

traveled area and that the roof conditions were exceptionally good. I 

approved the settlement agreement. 

DOCKET NO. NORT 79-80-P 

Citation No. 356706, issued November 8, 1978, charged a violation of 

30 CFR 75.200 because of the failure to make a torque check on the first 

roof bolt installed. The parties moved for the approval of a settlement 

of this violation for the payment of $32, the amount of the original 

assessment. I approved the settlement agreement • 

. Citation No. 35707, issued November 8, 1978, charged a violation of 

30 CFR 75.200 because of the operator's failure to have an approved 

torque wrench on the roof bolting machine. The parties moved for the 

approval of a settlement of this violation for the payment of $32, the 

amount of the original assessment. I approved the settlement agreement. 

2216 
Citation No. 35708, issued November 8, 1978, charged a violation of 

30 CFR 75.200 because of the operator's failure to have a slate bar on the 

roof bolting machine. The parties moved for the approval of a settlement 

of this violation for the payment of $30, the amount of the original 

assessment. Both the torque wrench and slate bar were present on the section. I approved the settlement agreement. 

Citation No. 35709, issued November 8, 1978, charged a violation of 

30 CFR 75.200 because of an inadequate number of test holes being drilled 

on the roof. The parties moved to settle this violation for the payment 

of $40, the amount of the original assessment. There was a factual dispute 

as to the number of holes present. I approved the settlement agreement. 

Citation No. 35710, issued November 8, 1978, charged a violation of 

30 CFR 75.1704 because of the accumulation of water in the designated 

escapeway. The parties moved to settle this violation for the payment of 

$12. The original assessment was $24. The water was not of such height 

as to prevent miners from using the escapeway. I approved the settlement 

agreement. 

Citation No. 35711, issued November 8, 1978, charged a violation of 

30 CFR 75.1720 because two miners were observed not wearing eye protection 

when driving metal spikes. The parties moved for the settlement of the 

violation on the payment of $20. The original assessment was $34. All 

miners were provided with eye protection and no supervisory personnel were 

in the area. I approved the settlement agreement. 

ORDER 

Within 30 days of the date of this decision, Respondent is ORDERED to 

pay the following penalties: 

Citation or Order No. Date 30 CFR Section Penaltl Amount 

35619 11/15/78 75.200 $ 750 

36857 12/21/78 75.313 0 

36858 12/21/78 75.316 475 

35625 11/20/78 75.200 350 

34338 10/31/78 75.200 55 

34339 10/31/78 75.200 26 

35620 11/15/78 7 5.503 38 

35621 11/15/78 75.605 15 

36161 11/08/78 75.200 1,250 

35705 11/08/78 75.200 650 

35706 11/08/78 75.200 32 

35707 11/08/78 75.200 32 

35708 11/08/78 75.200 30 

35709 11/08/78 75.200 40 

2217 
35710 

35711 

Distribution: 

11/08/78 

11/08/78 

75.1704 

75.1120 

TOTAL 

12 

20 

$3, 775 

j~ A~::tf;n~ Chief Administrative Law Judge 

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

of Labor, Room 14480-Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 

Galen C. Thomas, Esq., c/o Barber Oil Corporation, 245 Park Avenue, 

New York, New York 10017 

2218 

« U. S. GOVERNMENT PRINTING OFFICE: 1980 311-143/3311