CCMMISSION DE:ISIONS 

This section contains all Decisions of the Camlission issued through 

March 31, 1979 together with other Orders which, in the opinion of 

the C-eneral Counsel, may be of precedential value or interest. 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

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.,,,,._.........,. 

.- ~::. ;_) 

1130 K SH"!:::-:-. ;~W. SUlTE 229 

WASHINGTON. DC "ZOOOG 

CHRISTOPHER COAL COHPAl'f'l 

Decided October 25, 1970 

App~al Christopher Coal Company from a decision dated 

Octr.he?r 18, 1976, in Docl:c.t No. NORG 76-8-P, by Administrative L<lw 

Jolm F. Cook, assessing a civil monetary penalty of $6,500 

for n violation of 30 CFR 75.329 contained in an imminent d.::.nger 

order of withdrawal issued at appellant's Osage No. 3 Hine. 

Af finnedo 

A?PEARl·1XCES: Alan B. Mollohan, Esq. , Rose, Schmidt, Dixon, Haseley, 

wnyte cind Harde.sty, Attorney for appellant, Christopher Coal Company; 

3chn lL O'Donnell, Esq., Attorney for appellant> Nine Safety and 

lth Administration (HSHA) formerly Mining Enforceillent and Safety 

Administration (HESA). 

}!;:wing reviewed the record and considered the brief of the appellant 

and response thereto, the Commission finds that Christopher Coal Company 

has n.ot demonstrated any reason why the findings of fact, conclusions 

1o.w, and decision of the Administrative Law Judge should not be 

affirmed. The record supports the decision and order of the. Judge and 

':.he a:110unt assessed for the violation is reasonable and in accord with 

the intent and purposes of the Federal Coal Mine Health and Safety 

of Furthermore, the arguments made on appeal to the Commission 

and fairly considered by the Judge in his decision 

ORDER 

WHEREFORE, pursuant to the authority contained in Section 109(a)(3) 

of the Coal Mine Health and Safety Act of 1969; Section llO(i) 

of the Federal Mine Safety and Health Act of 1977- and Section 30l(c) (3) 

cf A:nendraents Act . 1977, IT IS ORDERED: 

that the decision of the Administrative Law Judge 

issued October 18~ 1976, assessing Christopher Coal 

Company a civil penalty in the amount of Six Thousand 

Hundred Dollars ($6,500.00) IS HEREBY AFFifilIBD; and 
:nnc Christ8pher Coal Cc~peny o~v :he ci~il 

penalty assessed en or before 10 d~ys f=o~ che 

~a:c of ~his ci~cisicn. 

A.E. Lawson,;. Cornrnissioner 

~\\ Qu ~Qt \l::t• \\IQ o 1..x 

Marian Pearlman Nease, Corr:missioner \ f 

'./ 
1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

..;"'~"-''' 

·<'J·~· .:~ i·.; 

November 27, 1978 

.. ECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFE.TY AND HEALTH 

ADND\ISTR..\TION (NSHA) , Docket Nos. PITT 78-156-P 

PITT 78-157-? 

v. PITT 73-396-P 

PITT 78-397-P 

REPUBLIC STEEL CORPORATION, PITT 78-406-P 

PITT 

PITT 

PITT 

PITT 

Banning Mine 

Russelton Mine 

Clyde :Mine 

Newfield Nine 

DIRECTION FOR REVIEW AND ORDER 

78-407-P 

78-408-P 

78-409-P 

78-410-P 

The decisions of the Administrative Law Judge, approving a proposed 

settlement, is directed for review. It is found that the Judge's decisions may be contrary to law or Commission policy, and that a novel 

question of policy has been presented. The issue is: 

What reasons and facts support the Judge's·· 

determination that the proposed settlements should be approved? 

The Commission cannot ans·wer this question until the record 

reveals the Judge's reasons for, and the·facts supporting 

his approval of the settlement. Accordingly, the case is remanded to 

the Judge for him to make a statement of reasons for approving the 

settlement and a statement of the facts of record that supported 

his determination. The Judge shall also enter the settlement agreement into the record. ~· /) . ,ytJv.rYJ\JL VL ~u~ 

Jero~~·R. Waldie, Chairman · 

RicPfS~~] ~~;:~ 

.· ~- f"~~'fVJ/Jmmissioner i - (~ L-,:: :. ~· , .. .,.,.._ 

A. E. Lawso ', Commissioner 

I . \\ (\ '\I 

'- ~(f~J ( JJ \DD~~·'aJ.i w) vu:a v 

Marian Pearlman Nease, Commissioner 

SECRETARY OF LABOR 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 January 3,. 1979 

v. Docket No. PITT 78-97-P 

PENN ALLEGH COAL COMPANY, INC.: 

DIRECTION FOR REVIEW AND ORDER 

The petition for discretionary review filed by the 

Secretary of Labor is granted. The issues on review are 

those raised by the Secretary's petition, including: 

1) Whether the administrative law judge erred 

in concluding that the standard at issue, 30 CFR 

§75.1710-l(a) is "null, void and unenforceable"; 

2) Whether the administrative law judge committed 

prejudicial errors of procedure by allegedly: 

(a) placing the burden of proving available 

canopy technology on the Secretary; (b) refusing 

to allow the Secretary' to present certain evidence 

regarding available canopy technology; (c) taking 

official notice, sua sponte and without notice, 

of the record and decision in Florence Mining Co., 

No. M. 76-115, etc. (October 31, 1977); and 

failing to provide the Secretary with a reasonable opportunity to submit countervailing records 

and decisions for consideration. 

The Secretary has also filed a motion to strike .arid 

expunge from the record a document issued by the administrative law judge on May 11, 1978, captioned, "Supplemental 

Memorandum Opinion on Invalidity•of Canopy Standard. 11 For 

the reasons ~hat follow, the motion is granted. 
A hearing in the present case was held on April 6, 

1973. At the conclusion of the.hearing, the judge read into 

the rec-0rd his decision and order. On April 7, 1978, the 

judge issued a written "Memorandum Decision" reiterating the 

previous day's bench decision and adopting and confirming 

that decision. On April 12, 1978. the official record of 

the proceedings was certified to the Commission in accordance with Interim Procedural Rule 56. ~/ 

On May 5, 1978, twenty-eight days after the issuance of 

the written decision, the Secretary filed his petition for 

discretionary review with the Commission. On May 11, 1978, 

the administrative law judge issued the supplemental memorandum opinion that is the subject of the Secretary's motion 

to strike. 

The supplemental memorandum opinion states that it was 

"filed to set forth more fully the Presiding Judge's views 

with respect to his finding of April 6, 1978, declaring the 

improved safety standard (30 CFR 75.1710-l(a)) relating to 

the use of canopies on electric face equipment null, void 

and unenforceable. 11 The supplemental opinion sets forth at 

length the judg~'s views concerning the background behind 

the adoption of the standard at issue, the valLdity of that 

standard as adopted, and the authority of the judge to rule 

on the standard's validity. 

Section 113(d)(1) of the Federal Mine Safety and Health 

Act of 1977 !/ provides: 

An administrative law judge appointed oy the 

Commission to hear matters under this Act shall 

hear, and ~ake a determination upon, any proceeding instituted before the Commission •.• 

assigned to such administrative law judge ..• , 

and shall make a decision which constitutes his 

1/ 29 CFR §2700.56. This rule provides: "Within 5 day·s 

after a written decision has been rendered by a Judge, the 

docket clerk shall certify the official record of the 

proceedings to the Commission. 11 

!/ 30 U.S.C. §801 et~· (her~inafter "the Act"). 

2 
final disnosition of the proceedings. !he 

decision of the administrative law judge 

of the Commission shall become the final 

decision of the Commission 40 davs after its 

issuance unless within such period the Commission has directed that such decision shall 

be reviewed by the Commission.... (Emphasis 

added.] 

Section 113(d)(2)(A)(i) of the Act provides: 

Any person adversely affected or aggrieved by a 

decision of an administrative law judge, may file 

and serve a petition for discretionary review by 

the Commission of such decision within 30 days 

after the issuance of such decision~ .•• [Emphasis 

added.] 

It is clear that the written decision issued on April 

7, 1978, is the "decision" constituting the judge's "final 

disposition of the proceedings" within the meaning of 

secti~n 113(d) of the Act. ll The' decision was issued by 

the judge and served upon the parties and the Commission; 

the record was ~ertified to the Commission; and the Secretary 

filed a petition for discretionary review with the Commission 

within the statutorily prescribed period. In these circumstances, the Commission will not consider the further discussion of the issues undertaken by the judge and issued as 

a "supplemental memorandum opinion". 

The statutory scheme for Commission review of judges' 

decisions eontemplates that the first opinion of ·a judge 

announcing his final disposition of the proceedings will 

provide guidance to the aggrieved parties in the drafting of 

their petitions for discretionary review. Section 113(d) 

(2)(A)(iii) of the Act requires that objections in a 

petition to the judge's decision be supported ~y detailed 

~/ See also Interim Rules of Procedure 54 and 55, 29 CFR 

§§2700.54 and 55. 

3 
citations. to the record and legal authorities, and confines 

Commission review to questions raised by the petition, where 

the direction only grants a petition. The filing by the 

judge of multiple opinions impedes the efforts of the 

aggrieved parties to timely comply with the requirements for 

petitions, encourages the hasty drafting of inferior petitions, 

and thus impairs the usefulness of this crucial document to 

the Commission. Moreover, the judge 1 s accion may create 

confusion ,as to the status of the issues, the deadiines for 

filing and granting of petitions and the exercise by the 

Commission of its power to direct review on its own motion. 

In shoit, the judge's action threatens the smooth functioning of the Commission's review process. 

We further observe that the judge's issuance of a 

supplemental opinion may leave the impression that he failed 

to fully consider the case when he issued his first opinion, 

and that his first opinion did not adequately state the 

reasons for his decision. It may also unnecessarily detract 

from the appearance of his impartiality if his supplemental 

opinion anticipates and, fortuitously or not, "rebuts" 

contentions made.in a petition for discretionary review. 

For these reasons, the motion to strike filed by the 

Secretary is granted. 

J(bal~e~n 

Richard V. Backley, C6mmissioner 

A. E. Lawson, Commissioner 

'-\~ Marian Pearlman \~\\\W Nease, ~ Commissioner 
1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 January 10, 1979 

UNITED MINE WORKERS OJ Docket No. HOPE 76-16 

AMERICA (UMWA), Appeal No. IBMA 76-101 

Applicant-Respondent : 

v. : 

WESTMORELAND COAL COMPANY, 

Respondent-Appellant 

DECISION 

This appeal from an administrative law judge 0 s decision 

was pending before the Interior Department Board of Mine 

Operations Appeals as of March 8~ 1978. Accordingly, it is 

before the Commission for disposition. Section 301, Federal 

Mine Safety and Health Amendments Act of ~977, 30 U.S.C. 

§ 961. 

At issue is an application for compensation filed by 

the United Mine Workers of America (UMWA), as authorized 

representative of the affected miners, pursuant to § llO(a) 

of the Federal Coal Mine Health and Safety Act of 1969. 1/ 

In the decision from which this appeal was taken, Administrative Law Juage Franklin P. Michels concluded that the miners 

involved were entitled t~ compensation under § llO(a) !/ of 

1/ 30 U.S.C. § 801 et~·, as amendedt hereafter "the Act." 

2/ Section llO(a) of the Act provides: 

"If a coal mine or area of a coal mine is closed by an 

order issued under section 104 of this title, all miners 
::he Act. For the reasons that iollow, ~he judge's decision 

is affirmed. 

The claim for compensation arises as a result of the 

issuance of a withdrawal order under § 104(a) of the Act. 

The withdrawal order issued at 4:00 p.m. on June 11, 1975. 

It is not disputed that the miners working during the shift 

in which the withdrawal order issued are entitled to compensation and the entitlement of these miners is not an 

issue on appeal. 11 Rather; the dispute on review concerns 

whether the miners on the shift that followed are entitled 

to compensation. 4/ 

f n . J:j ( con_ t 1 d ) 

working during the shift when such order was issued who are 

idled by such order shall be entitled to full compensation 

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

for which they are idled, but for not more than the balance 

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

next working shift, all miners on that shift who are idled 

by sue h order shall be entitled, to full compensation by the 

operator at their regular rates of pay for the period they 

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

(emphasis added). 

11 At the hearing the parties stipulated .to the dismissal 

of the compensation claim for miners idled during the shift 

in which the withdrawal order issued subject to Westmoreland' s payment to those miners of stipulated amounts. The 

judge ordered payment of the stipulated amounts and no issue 

concerning this payment is raised on appe&l. 

ii In its answer to the application for compensation, Westmoreland denied that the withdrawal order idled any persons 

on the shift that followed and stated that "mine management" 

had decided to "idle the mine on that shift." Subsequently 

however, the parties· stipulated to•the identity of the miners 

on this shift who were idled and the amounts to be paid to 

these miners if the issues regarding the time of the termination of the withdrawal order are resolved in their favor. 

Joint Exhibit B; Tr. 2. 

2 
Seccion llO(a) of ~he Act: provid~s that i~ a 5 104 

withdraw al order a.is not: terminated prior to the next working 

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

shall be entitled to full compensation . • for the period 

they are idled, but for not more than four hours of such 

shift. n Thus, in determining whether miners are entitled to 

compensation under this provision, the time at which the 

withdrawal order was terminated must first be determined. 

At the hearing in the instant case~ the time of the 

termination of the withdrawal order was disputed by the 

parties. The Order of Termination was entered into evidence 

as Joint Exhibit D. The Order of Termination specified 

11:00 p.m. a~ the time of its issuance. The dispute between 

the parties centered on the significance of the time noted 

on the Order of Termination. The UMWA contends that the 

11:00 p.m. notation referred to the time at which the Secretary's inspector determined that the dangerous condition no 

longer existed and .orally authorized the resumption of 

operations. Westmoreland contends that the notation referred 

to the time at which the termination order was signed by the 

inspector after he exited f~om the mine and arrived at 

Westmoreland's office, and, ther~fore, that the inspector's 

earlier, undergrpund, oral termination of the withdrawal 

order necessarily occurred before 11:00 p.m. 

The conflicting evidence of the parties on this issue 

is summarized adequately in the judge's decision. After 

3 
enc~s :herefrom, Judge Michels concluded that a prependerance of the evidence establishes thac the withdrawal order 

~as terminated at 11:00 p.m. This factual conclusion is 

supported by substantial evidence and we will not disturb it 

on review. 

Therefore, we affirm Judge Michaels' conclusion that 

the withdrawal order at issue was terminated at 11:00 p.m. 

on June 11, 1975. 

Westmoreland contends that the conclusion is'based on 

hearsay. If the hearsay claim is to the testimony of the 

inspectcr, it cannot be sustained. The inspector was present at the hearing and available for cross examination. 

The fact that he may have refreshed his recollection from 

his notes is immaterial. 

Having concluded that the withdrawal order was terminated 

at 11:00 p.m., it remains to be ~etermined whether the order 

was terminated "prior to the next working shift." Based on 

the evidence of record, Judge Michels concluded that the 

11 next working shift" started at 11:00 p.m. Therefore, he 

concluded that since the withdrawal order was terminated at 

11:00 p.m., it had not been terminared prior to the next 

working shift. On the facts of the present case, we agree 

with the judge's conclusion that the subject termination 

order, issued at 11:00 p.m., did not issue "prior to" 

Westmoreland's "next working shift. 11 We find it unnecessary 

4 
to our decision _in this case, however. :o address·t~e broarier 

question of what constitutes the beginning of a "shift 11 .:i.s 

chat term is used in § llO(a) of the Act. 

Accordingly~ the decision of the administrative law 

judge is affirmed. 

J erdme R. Waldie, Chairman , 

Nease, Commissioner 

5 

1730 K STREET NVJ, 6TH FLOOR 

WASHINGTON, D.C. 20006 January 29, 1979 

SECRETARY OF LABOR, 

Docket No. BARB 77-245-P 

v. 

PEABODY CO COMPANY, 

DECISION 

On October 11, 1978, the Commission granted a petition for 

~iscretionary review filed by Peabody Coal Company. Peabody 

asserts that Administrative Law Judge John ~- Cook erroneously 

found Peabody to have violated 30 CFR §75.202, and that the 

$8,000 penalty assessed by the Judge is too high. We hereby 

affirm the Judge's decisiori and order. 

The sta,ndard requires that "overhanging or loose faces 

and ribs shall be taken down or supported." We are of the 

opinion that Judge Cook correctly concluded that Peabody 

violated this requirement. The term "rib" as used in the 

standard is broad enough to cover the factual situation 

presented here. Peabody's contention would limit the 

required support or removal to ribs consisting solely 

of coal. This interpretation of the standard would 

frustrate its purpose which is to provide safety to the 

miners in all active underground roadways, travelways 

and working places. 

IT IS SO ORDERED. 

()~ f_ . iA;ud, ·._ ~e R. Waldie, Chairman 

C:~lu;i-~-t--. c.z: --./S:z-utLL. 

A. -E. Lawsoti, Commissioner 

~ \~\~l\ ~d~ nHlu MrblP 

Marian Pea~lman Nease, Commissioner l/ 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

ALEX ..\lrnER BROTHERS, INC. , 

Petitioner 

March 6, 1979 

v. Docket Nos. HOPE 78-161-167 

SECRETARY OF LABOR, 

~1INE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

DECISION 

On March 1, 1978, Administrative Law Judge L. K. Luoma dismissed 

applications for review, filed by Alexander Brothers, Inc., of withdrawal 

orders issued under the Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. §801 et seq. (1976) (amended 1977). The Judge found that the 

applications were not timely filed under section 105(a)(l) of that Act, 

and held, in accordance with precedents of the Interior Department's 

former Board of Mine Operations Appeals, 1/ that he could not extend the 

thirty day deadline of section 105(a)(l).- On October 11, 1978, we 

granted a petition for discretionary review filed by Alexander Brothers. 

We have considered the arguments of the parties, J:../ and we conclude 

that Judge Luoma correctly decided this case for the reasons he assigned. 

His order of dismissal is accord· gly affirmed. 

R~ 

Freeman Coal Mining Co., , 21, 1971-73 OSHD ,[15,367 (1970); 

Consolidation Coal Co., 1IBMA131, 1 , 1971-73 OSHD ns,377 (1971); 

Jones & Laughlin Steel Corp., 5 IBMA , 2 (1975). . 

]:_/, On January 31, 1979, the Commission denied a motion by Alexander 

Brothers to file a reply brief. On February 15, 1979, Alexander Brothers 

moved for reconsideration of that denial, and attached a brief in support 

of its motion. Neither the motion nor the brief present adequate reasons 

why the Commission should reconsider and reverse its previous ruling. 

The motion to reconsider is therefore denied. 

SECRETARY OF LABOR, 

HE'iE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW. 6TH flCOR 

WASHINGTON, D.C. 20006 March 9, 1979 

On behalf of John Koerner, 

Applicant 

No. DE~N 78-564 

v. 

ARCH MINERAL COAL COMP Al'lY, 

Respondent 

DIRECTION FOR REVIEW AND ORDER 

The decision of the Administrative Law Judge, dated February 7, 

1979, is directed for review. We find that the Judge 1 s decision may be 

contrary to law or Commission policy, or that a novel question of policy 

is presented. 

On September 12, 1978, the Secretary filed with the Commission his 

findings that John Koerner had brough't a complaint of unlawful discrimination 

by Arch Mineral Coal Company, and that the complaint was not frivolously 

brought. He moved that Mr. Koerner be reinstated to· his former position, 

or equivalent position, until a final Commission order on the complaint 

is issued. The motion was granted. On January 31, 1979, the Secretary 

filed a motion to vacate the order of reinstatement. The only stated 

basis for the motion was that "the parties have successfully negotiated 

a settlement of all matters formally in issue. 11 Judge Malcolm P. Littlefield 

noted the ground for the motion, stated that "[a]s a result [of the 

settlement], continuation of the reinstatement order serves no p~rpose", 

and granted the motion to vacate. The terms of the settlement were not 

entered into the record; the record also does not disclose whether 

Mr. Koerner agreed to or acquiesced in the motion to vacate the reinstatement order. 

The issue is: Were there sufficient grounds to grant the motion? 

The Commission concludes that the record should be supplemented 

bef~re we resolve this issue. Accordingly, we remand this case to 

Judge Littlefield for the limited purpose of supplementing the record 
~.;ich ::.:-:.swe::-s "'..:.O ~h:= follo~·1ing qu~sti.o:is: ~·Jhat are :he ::er:ns 02: :t:e. 

seccle~enr a~reemen~? Did ~r. ~oerner agree co or acquiesce in :he 

:::ocior;. ~o vac.2te ::he orde.'!' of reinsr.:ateme!lt·? Tfte Cornmission otb.er~,,~ise 

=ec2ins jurisdiccion of this case. 

un~'23S ::he Commission requests the!!l 

The par;:ies 

LO.·\ 

i 

i 1.A_A.N",_.!, 

neeci not file brief 3 

es tr 

/ .r L/ 

,,,· z -:;??·iz/-~ ~ ......... 

A E./Lafson, Commissioner 

\~X\\mw, \{v\IJLlJllOIA \\J!_O_.L~ Hariavearlman Nease, Commissioner 
FEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 March 26, 1979 

RAY MARSHALL, SECREI'ARY OF LABOR 

MINE SAFEI'Y AND HEALTH 

ADMINISTRATION (MSHA) I 

Petitioner 

v. 

WOLF CREEK COLLIERIES CO:MPANY, 

Fespondent 

Civil Penalty Proceeding 

IXJcket No. PIKE 78-70-P 

(Assessm:mt Control No. 

15-04020-2013V) 

No. 4 Mine 

DECISION 

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

of 1969. 1_/ The issue is whether the validity of an order of withdrawal 

under section 104(c)(2) can be challenged in a proceeding under section 

109(a)(3) for assessment of a civil penalty for the alleged violation 

cited in the order. Wolf Creek did not request review of the order of 

withdrawal pursuant to section l05(a); rather, the first time it questioned the order's validity was at the penalty assessment hearing. The 

Administrative Law Judge vacated the withdrawal orqer on the ground that 

"the record in this case does not disclose the precedential notice and 

order cited by the inspector in his withdrawal order."']:_/ Although he 

vacated the withdrawal order, the Judge did find a violation of a mandatory safety standard and assessed a penalty of $300. In assessing a 

penalty the Judge mitigated the amount because he had vacated the withdrawal order in which the violation was cited. 

We have reviewed the decision in light of previous decisions of the 

Interior Department's former Board of Mine Operations Appeals interpreting the 1969 Act. Section 109(a)(3) provided, in relevant part, that 

"[a] civil penalty shall be assessed by the Secretary [of the Interior] 

only after ... a public hearing and the Secretary has determined ••• 

that a violation did occur, and the amount of the penalty which is 

warranted, ••. 11 ]/ The Board consistently held that the validity of a 

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

case presents no issue under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et~· (1978). 

];_/ Section 104(c)(2) of the 1969 Act provided, in relevant part: 

"If a withdrawal order with respect to any area in a mine has been 

issued pursuant to paragraph (1) of this subsection [referred to as 

"precedential notice and order" by the Judge below], a withdrawal order 

shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the existence in such mine 

of violations similar to those that resulted in the issuance of the 

withdrawal order under paragraph (1) of this subsection ••. 11 

]./ In determining the amount of penalty warranted, section 109(a)(l) 

set forth six statutory criteria which the Secretary of the Interior 

was to consider. 
~,.·i:h~ra~ ... :-al order .:!.s not an issue .in a penalt:y 9roceeai.=ig under .:;cc: ~0-::1 

lC9 ~nd th2.t it is error r:o "1.racats an order in 3uch ~enalt~; ?ro~c.eci::ng~ 

Zeider Coal Comuanv, 2 IB~fA 216, 223-224 (1973); Plateau ~·lining Cor.manv, 

2 IBHA 303 (!.973); Buffalo }!i!ling Comnanv, 2 IB:!.:\ 327 (1973); 

.\.,--;;e.cic:m Coal Cornoration, 3 IB!::f.A 93, 120 (1974). i;e concur in che 

Zoara's interpretation oi the 1969 Act. 

Accordingly, the withdrawal order (No. 1-TF, January 29, 1976) is 

reinstated. This case is remanded for reassessment of the penalty 

without consideration of the vacated order as a micigating faccor. 

,, 

! ) /) l "' t'> ,...·~ • \..,I~ ('- ,(./~~ 

F 

-2-

79-3-11 
;"'!~iiERAI. MINE· SAFETY AND HEALTH REVJEW COMMl.S5iON 

SECRETARY OF LABOR, 

ex rel. ROY A. JONES 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 March 27, 1979 

v. Docket No~ NORT 78-415 

JAMES OLIVER AND WAY~E SEAL 

d/b/a OLIVER MINE MAINTENANCE COMPANY 

DIRECTION FOR REVIEW AND ORDER 

The petition for discretionary review filed by the Secretary of 

Labor is granted. The issues on review are those raised by the petition, 

including whether the Administrative· Law Judge has authority to censure 

attorneys. 

On February 16, 1979, Administrative Law Judge Joseph B. Kennedy 

issued an "Order of Censure" against two attorneys. The order contained 

various findings by the Judge in support of his conclusion that the attorneys had engaged in misconduct. The Judge made his findings a matter of 

record, censured the attorneys, and sent a copy of his order to the 

Commission. The order was issued by the Judge even though the Commission 

had not made a determination under Interim Rule 5(b), 29 CFR §2700.S(b) 

(1978), that disciplinary proceedings were warranted .• 1/ 

The Commission has cautioned Judge Kennedy that administrative law 

judges lack the authority to censure attorneys in such circumstances. 

In re No. D-78-1 (November 15, 1978). In Kale we held that a 

1=_/ Interim Procedural Rule S(b) states: 

Whenever in the discretion of the Commission, by a majority 

vote of the members present and voting, the circumstances reported 

to the Commission warrant disciplinary proceedings against an 

individual who is practicing or has practiced before the Commission, 

the Commission shall issue a show cause order to such individual 

and refer the matter to a Commission panel, a Commissioner, or a 

Judge for hearing and decision. The hearing tribunal appointed by 

the Commission shall give the individual adequate notice of, and 

opportunity for reply and .heJring -0n, the specific charges against 

him, with opportunity to present evidence and cross-examine witnesses. 

The hearing tribunal shall render a decision incorporating findings 

and conclusions and issue either (1) an order dismissing the charges 

or (2) an appropriate disciplinary order, which may include reprimand, suspension or disbarment from practice before the Commission. 

/ 
determination by the Co!l'.mission that disciplinary proceedings are warranceci must precede an order of censure. The Judge's order here was 

therefore not authorized, and is vacated. ]:./ That Judge Kennedy apparently 

does not share this view of his authority does not justify his action. 

An administrative law judge must follow the rules and precedents of the 

Commission. 3/ We expect that in the future Judge Kennedy will follow 

th:is iple. 

We also observe t:hat procedural unfairness compounded the Judge's 

errors. Had Interim Rule S(b) been followed here, the two attorneys 

would have been accorded elementary procedural safeguards: notice of 

the charges, an opportunity to reply and to be heard on them, and to 

present evidence and to cross-examine witnesses. The Judge accorded the 

two attorneys none of these rights. 

The Commission will not countenance any further such abuse of its 

processes. It will not permit a Judge to discipline attorneys unless 

its rules of procedure and their procedural safeguards are followed. 

Accordingly, the order of 

Nease, Connnissioner 

±_I The Secretary additionally requ the Judge's findings be 

expunged from the record. Inasmuch e Judge's order of censure has 

been so widely disseminated, expunge en would· remove from our records 

the evidence of the Judge's error an ight deny to the censured attorneys 

the protection that we intend for our order to provide. We are therefore 

not inclined to grant this relief. 

1J Gindy Manufacturing Co., 1 OSHC 1717, 1973-1974 OSHD ,[17, 790 (1974) 

(Occupational Safety and Health Review Connnission); Iowa Beef Packers, 

Inc., 144 NLRB 615, 54 LRRM 1109, 1112 (1963); Insurance Agents' Inter-

!lational Union, 119 NLRB 768, 41LRRM1176, 1178 (1957) •. See also 

Ruhlen, Manual for Administrative Law Judges, 66-67 (Administrative 

Conference of the United States, 1974); and 5 U.S.C. §556(c). 

2 79-3-12 
ADMINISTRATIVE LAW JUDGE DOCISIOOS 

March 1, 1979 - March 31, 1979 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

March 1, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (HSHA), 

Petitioner 

v. 

WESTEil.N STATES COAL CORP., 

Respondent 

Civil Penalty Proceedings 

Docket No. DENV 78-521-P 

A.O. No. 42-00085-02020 

Docket No. DENV 78-522-P 

A.O. No. 42-00085-02021 

Docket No. DENV 78-523-P 

A.O. No. 42-00085-02018V 

Docket No. DENV 78-524-P 

A.O. No. 42-00085-02019V 

Dog Valley Mine 

DECISIONS 

Appearances: Edward H. Fitch, Trial Attorney, Department of Labor, 

Office of the Solicitor, Arlington, Virginia, for the 

petitioner; 

Before: 

Robert L. Morris, Esquire, Davis, Graham & Stubbs, 

Denver, Colorado, for the respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern petitions for assessment of civil penalties filed by the petitioner against the respondent on July 27 and 

28, 1978, pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 820(a), charging the respondent with 

several mine safety violations issued pursuant to the 1969 Federal 

Coal Mine Health and Safety Act. Respqndent filed timely answers in 

the proceedings, asserted several factual and legal defenses, and 

hearings were held in Salt Lake City, Utah, on November 15, and 16, 

1978. Respondent filed proposed findings and conclusions and a brief, 

and the arguments contained therein have been considered by me in the 

course of these decisions. 
Issues 

The principal issues presented in these proceedings are (1) 

whether respondent has violated the provisions of the Act and implementing regulations as alleged in the petitions for assessment of 

civil penalties filed in these proceedings, and, if so, (2) the appropriate civil penalties that should be assessed against the respondent . 

for each 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 these decisions. 

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

llO(i) of the Act .requi~es 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. 

Applf,cable Statutory and Regulatory Provisions 

1. The Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. § 801 ~~.,now the Federal Mine Safety and Health Act 

of 1977, P.L. 95-164, effective March 9, 1978. 

2. Sections 109(a)(l) and (a)(3) of the 1969 Act, 30 U.S.C. 

§§ 819(a)(l) and (a)(3), now section llO(i) of the 1977 Act. 

Discussion 

The alleged violations and applicable mandatory safety standards 

in issue in these proceedings are as follows: 

DOCKET NO. DENV 78-521-P 

Section 104(b) Notice of Violation 8-0005, 1 JODL, January 9, 

1978, cites a violation of 30 CFR 75.517, and states as follows: 

The 440 volt power cable for the No. 3 belt drive 

located in the main South West section was not being fully 

protected in the No. 5 entry a~ the No. 1 crosscut in that, 

the outer half of the right front tire on the Wagner scoop 

tram serial no. 395.75 was sitting on this cable. 

30 CFR 75.517 provides as follows: "Power wires and cables, 

except trolley wires, trolley feed~r wires, and bare signal wires, 

shall be insulated adequately and fully protected." 

2 
Testimony and Evidence Adduced by the Petitioner 

Federal coal mine inspector Jerry O. D. Lemon testified that he 

issued the notice of violation on January 9, 1978, while inspecting 

the mine. When he walked in the section, mine personnel were in the 

process of moving a power unit and he observed the 440-volt power 

cable under the right front tire of a diesel scoop. The tire was 

resting on top of the cable, and was next to the right rib and 

"there was a little coal over the cable." He advised the people 

present that by "sitting on the cable" there was a violation of 

section 75.517. The scoop was thereupon backed up approximately 

a foot, the cable was pulled up out of the coal, and work commenced. 

He checked the cable after it was pulled out of the coal and could 

detect no visible damage (Tr. 14-17). 

Inspector Lemon testified that the scoop is a big piece of 

machinery and it is easy not to see a cable along the rib. He did 

not believe the violation was intentional, and believed that the 

scoop operator simply did not see the cable. The scoop was being 

turned and was being used to facilitate the movement of the electrical unit, and the scoop bucket was about 3 or 4 inches off the 

ground while assisting in moving the unit. The scoop was idling 

and the operator was seated in the cab, and he did not observe the 

scoop move up on the cable. The tire, being close to the rib, would 

make it difficult for someone to walk between the rib and scoop (Tr. 

17-20). . 

The inspector testified that the violation was nonserious because 

there was no damage to the cable. However, he considered the situation to be an unsafe practice because if the cable were damaged, it 

would present a hazardous situation in the event someone picked up an 

energized damaged cable (Tr. 20-21). 

On cross-examination, Inspector Lemon indicated that the term 

"probable" as used in Part 100, Title 30, Code of Federal Regulations, 

with respect to the gravity of a violation, means "it is likely to 

happen." He marked the item labled 11 Probable 11 under the "Gravity11 

heading in numbered paragraph 1 on his inspector's statement (Exh. 

P-3), because he thought there might have been some damage to the 

cable, but he could not determine any damage from visual observation 

since he is not an electrical inspector. While the cable was "in 

good shape," there was a possibility that something could happen. 

The event against which the cited standard is directed, as that 

term is used in the "Gravity" statement, was the possibility of the 

electrocution of a mine employee in the event the cable were damaged 

(Tr. 23-29). He reiterated that the scoop was backed up first, and 

the cable was then lifted up and tied off by means of a piece of 

wire. The cable was lying under the right front tire. He also 

indicated that it is his practice to make notes at the scene of a 

violation and that he uses the notes as the basis for completing 

3 
his inspector's statement for each violation issued. He tries not 

to include anything in his statement other than what he observes, 

although he has included comments made by individuals on the scene, 

particularly in "imminent danger" cases and "serious-type" violations, and he has, on occasion, included such statements under 

"Remarks" on his report (Tr. 39-43). 

Testimony Adduced by the Respondent 

Roger J. Black, mine mechanic, testified that he is responsible 

for the maintenance of equipment in the mine, and that he was present 

the day Inspector Lemon cited the violation in question. He testified 

that the cable in question was originally lying in the cut of the rib 

where it is normally stored, but fell out and was lying at the side 

of the tire with some coal on top of it when the inspector happened 

on the scene. When it was pointed out to him, he pulled the cable 

up on the rib and tied it up. The cable had been "disconnected outside, 11 and the fuses on the main transformer had been pulled. He 

had no recollection that the scoop was moved first before the cable 

was pulled up, but does not believe the scoop was moved (Tr. 47-48). I 

On cross-~xamination, Mr. Black stated that the cable fell off 

the rib down next to the scoop tire, and he was aware that the cable 

had been disconnected and deenergized because one cannot touch such 

a cable unless it is disconnected at the surface. He could not 

recall whether the scoop was backed off the cable, but he did remember pulling the cable up to the side of the tire. He indicated that 

the cable fell down from a cut in the rib some 3 feet after the scoop 

was parked, and he confirmed that the scoop was idling. He believed 

that the cable in question was being fully protected, but he did not 

realize it had fallen down from the rib. Since the scoop tires are 

concave, it is possible that the cable was situated in such a way 

that one would believe it was resting under the scoop tire (Tr. 49-

54). 

DOCKET NO. DENV 78-522-P 

Section 104(b) Notice of Violation 8-0010, 2 JODL, January 19, 

1978, cites a violation of 30 CFR 75.313, and states as follows: 

The methane monitor serial no. 269A mounted on the 

ST-5DS Wagner Scoop serial no.• 395.75 being used inby the 

last open crosscut in the no. 7 entry of the Main South 

section to load coal was not being properly maintained or 

kept in a operative condition in that, this system would 

not automatically shut the diesel engine down when the 

monitor test button was pushed and the monitor indicator 

indicated 2 % methane. · 

4 
30 CFR 75.313 provides: 

The Secretary or his authorized representative shall 

require, as an additional device for detecting concentrations of methane, that a methane monitor, approved as reliable by the Secretary after March 30, 1970, be installed, 

when available, on any electric face cutting equipment, 

continuous miner, longwall face equipment, and loading 

machine, except 'that no monitor shall be required to be 

installed on any such equipment prior to the date on 

which such equipment required to be permissible under 

§§ 75.500, 75.501, and 75.504. When installed on any such 

equipment, such monitor shall be kept operative and properly maintained and frequently tested as prescribed by the 

Secretary. The sensing device of such monitor shall be 

installed as close to the working face as practicable. 

Such monitor shall be set to deenergize automatically 

such equipment when such monitor is not operating properly and to give a warning automatically when the concentration of methane reaches a maximum percentage determined 

by an author;ized representative of the Secretary which 

shall not be\more than 1.0 volume per centum of methane. 

An authorize~ representative of the Secretary shall 

require such monitor to deenergize automatically equipment on which it is installed when the concentration of 

methane reaches a maximum percentage determined by such 

representative which shall not be more than 2.0 volume 

per centum of methane. 

Testimony Adduced by the Petitioner 

Respondent conceded and stipulated to the fact of a violation 

of section 75.313, and indicated that it contests only the proposed 

assessment made in the amount of $120 (Tr. 58-59). Petitioner was 

permitted to present testimony by the inspector with respect to the 

violation, and particularly with respect to the question of gravity 

and negligence. 

Inspector Lemon confirmed that he issued the citation on 

January 19, 1978, citing a violation of 30 CFR 75.313, after finding 

the methane monitor on an ST-5DS Wagner scoop, serial No. 395.75, 

was not maintained in a workable condition. He has never detected 

the presence of methane from bottle samples he has taken. He 

extended the abatement time after being advised that repairs could 

be made within 30 minutes. However, additional time was required 

by the operator because it was discovered that parts had to be 

ordered, and he granted an additional 2 or 3 days, or until 8 a.m., 

January 23, 1978, for abatement. He.returned to the mine at approximately 11:35 a.m. on January 23, and after. being advised by the section foreman that the machine had been repaired, he proceeded to 

5 
inspect the machine and found that the methane monitor was still 

malfunctioning in that it would not deenergize the machine. Under 

the circumstances, he had no alternative but to issue the order 

prohibiting further use of the machine (Tr. 59-62). 

Inspector Lemon identified Exhibit P-9 as a "gravity statement" 

he prepared and stated that, being a new inspector, he had made a 

mistake in listing 20 miners as being exposed to any hazard. That 

figure should have reflected the number of persons working on the 

shift, which ranged from six to nine (Tr. 63). Although Inspector 

Lemon testified that a "possible hazard11 was present, petitioner's 

counsel stipulated that in the absence of any methane, the violation 

cited was nonserious (Tr. 64, 73). Mr. Lemon believed the respondent 

should have been aware of the condition cited because methane monitors are required to be checked and calibrated periodically (Tr. 64-

65). 

On cross-examination, Inspector Lemon testified that he did not 

know whether the monitor in question had been calibrated and indicated that he found no problems with respondent's failure to check 

or calibrate methane monitors in the mine. To his knowledge, calibration had been ~ade to insure compliance. Mr. Lemon did not fill out 

the "Good Faith'" portion of his "gravity statement" and crossed it 

out because he is instructed not to fill out that portion when an 

order has been issued (Tr. 69-70). 

Mr. Lemon did not know whether the machine in question was used 

on Thursday afternoon or Friday after he cited the violation. He 

confirmed that the methane monitor would not deenergize the machine 

when he tested it again on Monday, January 23, and he was told that 

there was a problem with linkage being disconnected on the solenoid. 

Mr. Lemon stated that he indicated on his gravity statement that the 

occurrence of the event against which the cited standard was directed 

was "probable." The "event" he referred to was that he believed it 

was likely that if the face were shot while equipment was running, 

and if 2-percent methane were found, which admittedly was not the 

case, the equipment would likely not shut down (Tr. 71-73). 

Respondent's Testimony 

Roger J. Black, mine mechanic, testified that when the citation 

-issued on January 19, the scoop was taken out to the shop. The injector housing linkage had broken. The. housing is not a stock item and 

an order was placed for a housing and the linkage was soldered in the 

housing and remounted on the injector pump. The scoop was taken back 

into the mine on January 23. When tested in idle speed, the scoop 

methane monitor would turn off the machine. When the machine was 

reved up to 1,800 rpms in Mr. Lemon's presence, it would not shut 

off and adjustments had to be made to the linkage in order to enable 

it to shut off at higher rpms (Tr. 83-86). 

6 
On cross-examination, Mr. Black testified that if the machine 

had not been reved up tb 1,800 rpms, it would have shut down when the 

methane test button was activated. He could not recall telling 

Mr. Lemon that the machine had been in the shop, but believe·d he told 

him it would shut down at an idle speed (Tr. 86-87). 

Section 104(b) Notice of Violation 8-0015, 4 JODL, January 30, 

1978, cites a violation of 30 CFR 75.200-2, and states as follows: 

The approved roof control plan was not being complied 

with in the no. 3 entry face in the Main South West section 

in that the straight away face had been completely cleaned 

and no roadway timber had been installed. From the last 

roof suppo~t (road way) timber to the deepest point of 

penetration in the face it was an approximate distance of 

42 feet. 

The approved roof control plan states that roof supports shall be installed to within 15 feet of the cleaned 

face, and that this roadway shall be maintained 15 feet 

wide on the straight and that these supports be installed 

on 5 foot c~nters and 4 feet from the rib line. 

\ 

The notice was subsequently modified on February 6, 1978, to correct the citation reference from section 75.200-2 to 75.200 (Tr. 106-

107, Exh. P-12). 

30 CFR 75.200, provides: 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system 

of each coal mine and the means and measures to accomplish 

such system. The roof and ribs of all active underground 

roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs. A roof control plan 

and revisions thereof suitable to the roof conditions and 

mining system of each coal mine and approved by the Secretary shall be adopted an~ set out in printed form on or 

before ~ay 29, 1970. The plan shall show the type of support and spacing approved by the Secretary. Such plan 

shall be reviewed periodically, at least every 6 months by 

the Secretary, taking into consiqeration any falls of roof 

or ribs or inadequacy of support of roof or ribs. No person shall proceed beyond the last permanent support unless 

adequate temporary support is provided or unless such 

temporary support is not required under the approved roof 

control plan and the absence of such support will not pose 

a hazard to the miners. A copy of the plan shall be furnished to the Secretary or his authorized representative 

7 
and shall be available to the miners and their 

representatives. 

Inspector Lemon testified that upon inspection of the mine on 

January 30, 1978, he found a violation of section 75.200 in that the 

respondent failed to follow its approved roof control plan (Exh. 

P-28) in that in the No. 3 entry face of the Main Southwest Section, 

the straightaway face had been completely cleaned and no roadway 

timber had been installed from the last roof support for a distance 

of approximately 42 feet from the point of deepest.penetration. The 

roof plan requires that roof supports be installed within 15 feet of 

the face, that the roadway be maintained 15 feet on the straight, 

and that roof supports be installed on 5-fo~t centers approximately 

4 feet from the rib line (Tr. 124). The mining cycle was in the 

cleanup stage, and under the plan, timber was required within 20 

feet of the face. He determined the 42-foot distance by use of a 

tape thrown from the last roof support toward the face. His actual 

measurement was 44 feet, but he allowed 2 feet for the end of the 

tape tied to a rock. Six timbers set on 5-foot centers were required 

(Tr. 124-129). 

Inspector Lemon believed the respondent was negligent in allowing 

'the cited condit'ion to exist. The face boss should have been aware 

of the fact that four timbers had not been set prior to the equipment 

completing the cleanup, although the face boss was not in the area at 

the time. The loader operator was negligent by going in the area 

because the roof control plan has been explained to the miners and 

the safety director has explained it to the men. Inspector Lemon 

observed the loader coming out of the area with a load of coal, but 

saw no one else there. He did not know whether the missing posts 

had been previously set, and he just did not see any. In addition, 

he saw no drilling or shooting taking place, but this could have been 

done on a previous shift. The operator is allowed to remove two 

posts during the cleanup process and three posts during the cleanup 

of the gob (Tr. 130-133). 

Inspector Lemon indicated that roof falls have occurred in the 

older part of the mine, but the roof area at the point of the violation was tested and it was not drummy (Tr. 134, 138). He could not 

say whether the violation in question was serious. The roof at the 

last support was sound and he should have indicated "improbable," 

rather than 11 probable" on his gravity statement (Tr. 139). 

On cross-examination, Mr. Lemon testified that he became the 

inspector at the mine in question in January 1978. He reiterated 

the method used to measure the 42-foot distance stated in the citation, and his tape did not cross a crosscut. The last timber support was at a corner where a turn was proceeding to the right at a 

crosscut. As he approached the face, he observed the loader leaving 

and coming toward him, and it was about 180 feet down the entry, and 

8 
safety director Bob Kales was with him. The crew began setting timbers within 10 minutes of his measurement (Tr. 141, 144-151). 

Mr. Lemon testified that under a subsequent plan effective 

May 30 (Exh. P-29), timbers may be removed while cleaning the gob 

(Tr. 156). When he arrived on the scene, the area had been cleaned 

up and the loader had the last load in the bucket (Tr. 157). The 

roof at the last support was sound, and he visually observed the 

roof conditions. The roof looked good, sounded solid when tested, 

and he saw no cracks (Tr. 160). He could not check the roof inby 

the last support, and being unsupported, it could possibly come 

down. He could not state whether it would probably come down, but 

indicated it was a "good probability11 and believed that it was 

probable there was going to be a roof fall in the unsupported area 

(Tr. 162). Although roof falls had occurred in mine areas which 

had been mined out over 10 or 15 years, this would still indicate 

that when pillars are pulled, that process would substantially 

affect the probability or possibility of a roof fall. However, in 

this case, pillars had not been pulled. When roof strata begins to 

take weight, the timbers will begin to split and start flaking. 

However, there wa1s no weight on the timbers along the entry leading to the face atea in question, and he saw no evidence that the 

timbers were taking weight in the entry or the faces. He did not 

go beyond the timber support and did not look beyond it (Tr. 162-

165). 

Petitioner's counsel stipulated that the mine roof conditions 

are such that roof bolts are required as in other mines (Tr. 168). 

Mr. Lemon confirmed that his notes taken on January 30 reflect that 

he did not believe the violation was 11 significant and substantial" 

(Tr. 171). Inspector Lemon indicated that the one person exposed to 

the ·hazard of unsupported roof was the loader operator, even though 

he was.under a protective cab {Tr. 176). 

Respondent's Testimony 

John Dania, employed by respondent as a mining engineer for 

2-1/2 years, holds a BS degree in mining engineering, and is a 

tered engineer in the States of Colorado and Utah. He wrote the roof 

control plan currently in effect at the mine and has been in the mine 

some 150 times in the working areas. He has surveyed the mine and is 

familiar with all of the places, including the old works, and the mine 

conditions (Tr. 180-183). ' 

Mr. Danio stated that in recently mined areas, bad roof has not 

been encountered. A year and a half ago, there was a roof fall in a 

belt entry, but he was in the area 8 or 10 hours before the rock fell 

and it was obvious to everyone that the top was bad. The area was 

dangered off and precautions were taken before the rock fell. He is 

unaware of any other roof falls in the mine within the past 5 years. 

9 
He described the roof conditions and roof strata in the mine. Older 

areas mined over 20 years ago have had roof falls, and those areas 

are still traveled, but have been timbered and are always checked 

and evaluated for hazardous roof conditions. Roof flakirig does 

occur in the old areaa, and, on occasion, small pieces of coal 

have been found in recently mined areas (Tr. 183-186). 

Mr. Danio testified that the mine has an unusual roof control 

plan and part of the reason for that is the excellent nature of the 

roof rock, and that MSHA recognizes this fact. He also indicated 

that timbers must be recovered in order to remove coal from the 

crosscut and to facilitate the movement of equipment (Tr. 187-188). 

The parties agreed that Mr. Dania's testimony would also be 

applicable to the subsequent timbering violation$ in issue in 

Docket Nos. DENV 78-523-P and DENV 78-524-P (Tr. 188). 

On cross-examination, Mr. Danio testified that he believed the 

present roof control plan permits the development of two crosscuts 

off an entry, plus the advancement of the face, all in the same mining cycle. Anytime one entry is 20 feet or wider, two rows of roof 

supports mus~ be installed. He also explained the circumstances 

under which timbers must be installed as the mining cycle advances 

(Tr. 188-194). 

Mr. Dania confirmed that some roof settlement occurs during 

blasting at the face. As for roof faults, he indicated that some 

50 holes have been drilled over the 440 acres of the mine and no 

roof faults have been encountered (Tr. 195-196). Mr. Danio did not 

observe the conditions cited by the inspector and had no personal 

knowledge of the violation (Tr. 202). 

In response to questions from the bench, Mr. Danio testified 

that one possible explanation for the missing posts cited by Inspector Lemon was that the condition could occur by bad mining practices, that problems have occurred in the past, but management is 

working at improvements (Tr. 208). 

DOCKET NO. DENV 78-523-P 

Section 104(c)(l) Order 7-0111, 1 DKJ, December 30, 1977, cites 

a violation of 30 CFR 75.316, and states as follows: 

' The line curtain was only being maintained to within 

22 feet of the face of the No. 5 entry of the South West 

section. The face had been cut with a Joy cutting machine 

and all the curtain was extended and no additional curtain 

was available in the entry. The ventilation plan requires 

the line curtain be maintained to within 12 feet of the 

area of deepest penetration. 

10 
30 CFR 75.316, provides: 

A ventilation system and methane and dust control plan 

and revisions thereof suitable to the conditions and the 

mining system of the coal mine and approved by the Secretary 

shall be adopted by the operator and set out in printed form 

on or before June 28, 1970. The plan shall show the type 

and location of mechanical ventilation equipment installed 

and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity 

of air reaching each working face, and such other information as the Secretary may require. Such plan shall be 

r~viewed by the operator and the Secretary at least every 

6\·months. \ 

Sect\ion 104(c)(l) Order No. 7-0112, 2 DKJ, December 30, 1977, 

cites a violation of 30 CFR 75.200, and states as follows: 

Roof supports (timbers) were only being maintained to 

within 44 feet of the face of the No. 4 entry of the South 

West section. The approved roof control plan requires 

that timbers ~e maintained to within 15 feet of the face. 

Section 104(c)(l) Order No. 7-0013, 3 DKJ, December 30, 1977, 

cites a violation of 30 CFR 75.200, and states as follows: 

Roof supports (timbers) were only being maintained to 

within 33 feet of the face of the No. 3 entry of the South 

West section. The roof control plan requires that timbers 

be maintained to within 15 feet of the face. 

DOCKET NO. DENV 78-524-P 

Section 104(c)(l) Notice 7-0110, 1 DKJ, December 30, 1977, cites 

a violation of 30 CFR 75.200, and states as follows: 

Roof supports (timbers) were only being maintained to 

within 38 feet of the face in the No. 6 entry of the South 

West section. The approved roof control plan requires 

timbers be maintained to within 15 feet of the face. 

In both Docket Nos. DENV 78-523-P and DENV 78-564-P, respondent 

stipulated to the fact of violations with respect to the four citations issued by MSHA inspector Dick K. Jones, and the parties stipulated to the adoption by reference of the previous testimony of 

Mr. John Danio with respect to the prevailing roof conditions at the 

mine (Tr. 211). -

Exhibit P-23 is a copy of the section 104(c) notice issued by 

MSHA inspector Dick K. Jones on December 30, 1977, at 9:35 a.m. 

11 
Exhibits P-14, P-15, and P-16 are copies of three section 104(c) 

orders issued by Inspector Jones at 9:40, 10, and 10:45 a.m., all 

on December 30, 1977, subsequent to the issuance of the underlying 

notice. Respondent stipulated to the admissibility of the notice 

and orders (Tr. 212-213). 

MSHA inspector Dick K. Jones confirmed that he issued the 104(c) 

notices on December 30, 1977. Upon entering the mine to conduct an 

inspection, he proceeded to the face of the No. 6 entry and observed 

that timbers were only being maintained to within 38 feet of the face 

in the No. 6 entry at the southwest section. The approved roof control plan required timbers to be maintained to within 15 feet of the 

face. He verified the dista·nce cited in his not ice by means of a 

measurement made with his tape. Upon entering the section, he 

observed a piece of equipment coming out of the No. 5 entry, and 

there was a cutting machine parked just ouby the No. 6 crosscut (Tr. 

217). Upon leaving the No. 6 entry, he encountered Section Foreman 

La Valley and informed him of the condition which he had found. 

Mr. LaValley responded "You are not telling me anything I don't 

know." He and Mr. LaValley then proceeded to the No. 5 entry and 

after observ\ng the condition, he informed Mr. LaValley that he was 

issuing a notice of violation. He also informed him that he was 

issuing a violation for failure to have roof supports in the No. 6 

entry. Mr. LaValley advised him he was aware of the condition and 

explained that it was not uncommon for him to come on the shift in 

. the morning and find these conditions and that the afternoon shift 

was "leaving it this way." At that point, Safety Director Hales 

came to the scene and he (Jones) advised him as to what Mr. LaValley 

told him and Mr. Hales took notes. Mr. Jones then went to the No. 4 

and No. 3 entries and upon finding the conditions noted in his orders, 

he issued the orders (Tr. 218-220). 

Inspector Jones testified there were six entries in the area 

which he examined and the violations were issued on four of the 

entries. He believed the four entries had been mined on December 30 

because of the manner in which they were cut and cleaned and the pos 

tiou of the equipment, and he believed that the afternoon shift left 

the entries in the conditions in which he found them. He described 

the mining cycle, and since each cycle advances some 10 or 11 feet, 

he believed mining advanced at least two times without roof supports 

being installed. The area was exposed to anyone walking in, but he 

did not observe anyone inby the la$t timber supports in any of the 

entries while he was there. He was convinced that the mining cycle 

had advanced without setting timbers, since there was no evidence 

that timbers had been installed. He observed equipment tracks, 

equipment was present, and mine management did not deny the fact 

that timbers had not been set, and, in fact, admitted it (Tr. 220-

223). 

12 
With regard to the gravity of the conditions he found in the 

No. 6 entry, Inspector Jones testified that just inby the last support there was approximately 6 feet of loose coal which was nearly 

ready to fall and it had to be removed. He and Mr. Hales barred it 

down before abatement could begin and it came down very easily. 

While people were in the area prior to this time, he did not know 

whether that particular coal was loose at that time. Approximately 

a foot of coal was barred down, and had it fallen, he would not have 

wanted to be under it (Tr. 224). With regard to the line curtain violation in the No. 5 entry, a person working inside the line curtain 

area would be working in a dusty atmosphere and the mine was working 

with a small fan and mine ventilation was, at best, barely adequate. 

Since that time, conditions have improved with the installation of 

another fan. Other ch~ck curtains in the aiea were in bad shape, 

but he did not cite those because repairs were being made. He took 

no air readings at the face because once the area was closed by his 

orders, the hazards were eliminated. At the time he cited the violations, he believed the ventilation devices were in good shape 

because required face ventilation was being maintained (Tr. 225). 

Mr. Jones testified that he considered the violations to be 

serious and that th\e section was in "bad shape . 11 He went back to 

the section with re~pondent's engineer, Mr. Sikes, to show him the 

conditions, and took him to each place to show him the conditions. 

Mr. Sikes agreed with his findings, as did Safety Director Hales, who 

expressed embarrassment over the condition of the section (Tr. 227). 

Mr. Jones identified Exhibit P-25 as the "gravity statement" he 

filled out in connection with the notice citing 38 feet of unsupported 

roof (Exh. P-23), and under the heading "Gravity" he checked the block 

"Probable" and remarked that "[t]imbers are the only means of roof 

support, and the top in this area is drummy and cracked and did not 

appear good.'' He also indicated on the form that two workers were 

exposed to the hazard and remarked that ''[s]ince this face had been 

cut, both the coal scoop operator and the cutting machine operator 

had been beyond supports" (Tr. 229-230). 

Mr. Jones identified Exhibit P-16 as the "gravity statement" he 

prepared in connection with the line curtain violation (Exh. P-14), 

and confirmed that he marked."probable," "none" under "Remarks," 

"disabling,~' and "none" again under "Remarks." He also confirmed 

that he noted that two workers were exposed to the hazard, that "the 

coal scoop operator and the cutting machine operator both had been 

operating this equipment inby the last line curtain," and that "the 

coal is loaded out with Wagner diesel coal scoops, and diesel fumes 

build up in the face when adequate ventilation is not provided" (Tr. 

230-231). 

Mr. Jones identified Exhibit P-19- as the "gravity statement" he 

prepared in connection with the citation concerning the 44-foot roof 

13 
support violation (Exh. P-17), and indicated that he marked "probable" 

under the "Gravity" heading, and remarked that "the roof inby the 

last roof support was cracked and drummy and was flaking off." He 

also confirmed that he indicated that any injury would be 11 permanent ly disabling," and that he remarked 11 these timbers are the only 

means of roof support and the only way to detect if the area is 

taking weight." He also noted on the form that two workers were 

exposed to the hazard and remarked that "the coal scoop operator and 

the cutting machine operator had been operating inby the last support" and 11 the coal scoop had violated the roof control plan to clean 

up and then the cutting machine had gone in and cut the face without 

setting any support" (Tr. 231-232). 

Mr. Jones identified Exhibit P-22 as the "gravity statement 11 he 

prepared in connection with the 33-foot roof support violation (Exh. 

P-20), and confirmed that he indicated on the form that the condition 

was "under the direct observation of management," namely, the section 

foreman. He also confirmed that he marked 9-probable" and remarked 

"possible roof fall." He also noted on the form that the injury 

would be 11 disabling," inserted 11 none" under "Remarks," that two 

workers were exposed to the hazard, and remarked that "coal scoop 

operator, when ~aking methane checks and operating equipment and 

when extending t'he line curtain was exposed to the hazard 11 (Tr. 

233). 

Regarding the line curtain violation, Inspector Jones testified 

that failure to extend the line curtain results in inadequate face 

ventilation and limitations on vision since the curtain is required 

to sweep dust away from the face area. In addition, there is a possibility of a dust ignition and the men can breathe in the dust. The 

ventilation plan required that the curtain be maintained to within 

12 feet of the face, and the dust generated at the face is readily 

observable and should have alerted the operator that he was in violation. Although he observed a scoop coming out of an entry, he 

could not· te 11 whether it was loaded or not, since he was by the 

first entry when he observed it come out. The place had been 

cleaned up and the gob had been cleaned, but he did not see the 

scoop inby the line curtain. He did not take any air measurements 

and the reason for this was the fact that he had closed down the 

entry when he issued his order and he believed this eliminated all 

hazards (Tr. 3-7, Nov. 16). He described the mining cycle which he 

believed took place and assumed that at least two cuts of coal had 

been taken over a half-day shift in the three entries where he cited 

roof control violations, and men were working under unsupported roof 

(Tr. 9-11). He confirmed that when he and respondent' Safety 

Engineer Sikes ~ent back to look at the areas c~ted, h:. Sikes did 

not disagree with his findings (Tr. 12). Based on his analysis of 

the mine roof control plan, a total of 12 additional timbers should 

have been installed in the three entries.cited in his roof control 

violations, and failure to install them permitted more coal to be 
mined on the shift. Failure to install the timbers, however, had 

a potentially detrimental effect on the safety of the miners (Tr. 

15-16). 

In response to questions from the bench, Inspector Jones indicated that at the time the violations were issued, the mine atmosphere was clear and no equipment was operating. His testimony 

concerning the hazardous conditions assumed that these conditions 

existed during prior normal mining operations inby the line curtain 

and timbering areas noted in his citations. Had it not been for the 

timbering violations, he would not have shut the section down because 

of the ventilation curtain violation in and of itself (Tr. 17). However, since a complete mining cycle had occurred, he believed that 

dusty conditions probably prevailed because of the failure to extend 

the curtain in question (Tr. 18). 

On cross-examination, Mr. Jones testified as to his assumptions 

regarding the presence of the loader he observed coming out of the 

entry after he cited the violations. However, he was not prepared to 

state that the loader was in the face area. Assuming the loader had 

just gone into that area and· scooped out some coal, it probably would 

have generated some dust. However, he conceded that the loader would 

not have generated much dust since the gob being scooped would be in 

a pile, and it would constitute 50 percent clay and rock (Tr. 19-24). 

Inspector Jones assumed the loader had been working at the face 

because coal had been cut and the gob removed. He did ·not check for 

methane (Tr. 27-28). 

With regard to the notations made on his inspector's statement 

concerning the gravity of the ventilation curtain violation, particularly the fact that diesel equipment emits fumes, Mr. Jones candidly 

admitted that the statement was based on what he believed would have 

occurred in the normal course of mining, rather than what he actually 

observed (Tr. 30-34). Mr. Jones could not recall reviewing the preshift examiner's reports on the day of the citations (Tr. 35). He 

also indicated that he did not believe there was any direct relationship in the amount of air recorded at the last open crosscut and the 

amount of air at the working faces (Tr. 37~39). Although he observed 

some check curtains in disrepair, he saw no one inby those curtai~s, 

nor did he observe any equipment there (Tr. 46). The gist of the 

violation was the fact that the line curtain was installed 22 feet 

outby the face, the face had been advanced, and one mining cycle had 

been completed with no additional curtain being installed (Tr. 48). 

When he arrived on the scene, no one was at the face and no line 

curtain was installed (Tr. 51). Regarding his previous testimony 

concerning the roof conditions in the mine in question, Mr. Jones 

indicated that they were "average," and, although some roof areas 

sounded drummy, he could not be sure that this was indicative of 

the fact that it might fall (Tr. 54-55). Roof falls on the section 

in question were rare (Tr. 55}. However, drummy roof and cracked 

15 
roof is indicative that it would probably fall (Tr. 57). He did not 

mean to imply that this roof condition prevailed throughout the mine, 

but only at the location of the violation (Tr. 57). 

Mr. Jones did not know the number of times the mine was cited for 

violations of section 75.200 (Tr. 59). He was not aware of the fact 

that the Assessment Office may waive the normal assessment formula 

used to assess penalties, but was aware of the fact that inspectors' 

statements are used in assessing penalties (Tr. 73). Regarding Violation No. 7-0013 (Exh. P-20), Inspector Jones testified that the 

reason he noted a "possible roof fall" on his inspector's statement 

(Exh. P-22), while explaining in some detail in the "Remarks" on the 

other statements dealing with the other roof violations, was the fact 

that the conditions were different. In the case of this violation, 

the roof was not cracked (Tr. 77). Although the fact that the roof 

was cracked, druITu~y, and flaking in some areas, he did not see any 

significant difference in a roof condition which was not cracked, 

insofar as the probability of a roof fall was concerned (Tr. 78). 

Regarding his definition of "probable," he believed it does not 

mean greater than 50 percent, not necessarily greater than 30 percent, and possibly greater than 20 percent, depending on the prevailing conditi'c:ms, such as equipment being used, roof supports, 

blasting techniques, etc. (Tr. 79). 

John Danio was recalled as a witness for the respondent, and 

testified that he was present in the courtroom when Inspector Jones 

testified as to roof cracks. Mr. Danio stated that what sometimes 

appears to be roof cracks may, in fact, be face cleats or butt cleats 

which are natural phenomena which appear in coal pillars, and this 

structural phenomena is associated with all coal formations (Tr. 91). 

Given the lighting conditions in a mine, he does not believe that 

he would mistake such a cleat for a roof crack. Such cleats have a 

trend and direction; they can be mapped and identified as cleats 

(Tr. 92). He also testified that he was familiar with mine ventilation, and testified that the amount of air at the last crosscut is 

indicative of the amount of air that is available to ventilate a 

face. Since the mine does not have methane, sweeping mine ventilation characteristics are not critical, and a machine operator sitting at the controls would not be affected by diesel fumes, since 

the fan ventilation will carry the fumes away from him. Further, 

he would not be adversely affected by dust since he is away from 

the face area (Tr. 90-95). 

On cross-examination, Mr. Danio conceded that he did not personally observe any of the conditions cited by Inspector Jones at the 

time the citations were issued, nor did he observe any cracks in the 

roof entry. Assuming the line curtain was 22 feet away from the face 

and in disrepair, as testified to by Inspector Jones, he assumed that 

6,000 cfms of air would not reach the face (Tr. 95-97). 

16 
Findings and Conclusions 

The following findings and conclusions as to size of business, 

effect of penalty ass~ssments, and history of violations apply to 

all dockets. 

Size of Business and Effect of Penalties Assessed on the Respondent's 

Ability to Remain in Business 

The evidence and testimony adduced reflects that the mine in 

question is a one-section mine employing approximately 25 individuals 

working two shifts a day (Tr. 12). Respondent's Exhibit R-4, is a 

weekly report ending November 5, 1978, showing a total of 21 production employees, 4 administrative workers, and 4 truck drivers employed 

at the mine, and the average estimated yearly coal production to 

November 5, is shown as 73,822 tons. Although respondent's counsel 

questioned the accuracy of his own figures (Tr. 74-75), they are 

estimated figures, and respondent was afforded an opportunity to file 

additional information (Tr. 214). Mr. Danio testified that in addition to the mine in question, respondent also operates an open-pit 

gold leeching oper~tion in Carlin, Nevada, and the total company 

employment is about\ 7 5 or 100. Government Exhibit P-26, a MSHA 

report, shows 1976 coal production as 65,471 tons and 1977 production 

as 83,354 tons (Tr. 202-206). Based on all of the available information presented in these proceedings, I find that respondent is a small 

mine operator and that fact is reflected in the penalties assessed by 

me in these proceedings. 

Respondent presented no evidence that any penalties assessed by 

me in these proceedings will adversely affect its ability to remain 

in business. Under the circumstances, I conclude they will not. 

History of Prior Violations 

Petitioner submitted a comp6ter printout representing the prior 

history of violations at the Dog Valley Mine (Exh. P-27), and that 

history was received in evidence with no objections by respondent 

(Tr. 100, Nov. 16). Respondent was afforded an opportunity to file 

any posthearing corrections to the printout (Tr. 101), but has not 

done so and has not addressed the issue in its posthearing brief or 

proposed findings and conclusions. Petitioner stipulated that the 

mine has no prior history of any fatal r?of falls (Tr. 12, Nov. 15). 

The computer printout reflects a total of 226 prior violations 

for which civil penalties were assessed and paid by the respondent 

during the period January 9, 1976, to December 19, 1977. Taking into 

account the size of respondent's operation, I conclude that this 

reflects a moderately significant prior history of violations and 

this fact is reflected in the penalty assessments made by me in these 

proceedings. · 

17. 
DOCKET NO. DENV 78-521-P 

Fact of Violation--30 CFR 75.517 

In its answer filed September 18, 1978, respondent denied that a 

violation of 30 CFR 75.517 occurred, and asserted that the scoop tire 

was not on the cable in question, but merely next to it, and that 

this fact was confirmed by Mr. Joe Tenery, the foreman, and Mr. Roger 

Black, a mechanic who was present at the site at the time of the 

inspection. Further, respondent asserted that inspection of the 

cable, following the issuance of the notice, showed no damage to the 

cable. 

Petitioner's position with respect to this violation is that 

the cable in question must be protected at all times, and the potential for cable damage is not only damage to the outer insulation, but 

damage to the inner wires and insulation as well. In such a case, a 

short-circuit may occur, and while it is true that the short-circuit 

protection would work, crossed wires may not allow this. Once a 

cable is hung, it should be hung in such a way as to prevent it from 

dropping on the\floor where it may be run over by equipment. The fact 

that no one obsenved a cable being run over, does not excuse a violation because if it is run over, damage may have resulted inside the 

cable, and no one would know about it (Tr. 54-59). 

I find that the preponderance of the evidence adduced in this 

proceeding supports a finding of a violation of 30 CFR 75.517. The 

standard cited requires that power cables be protected. The normal 

method by which the cable in question is protected, is to hang it 

up off the mine floor so as to protect it against being run over or 

damaged by equipment. While the inspector believed the scoop tire 

was resting on the cable, and the mechanic believed it was merely 

lying next to the tire, the fact is that the cable in question was 

lying on the mine floor, thereby exposing it to the possibility of . ~ . . being run over or damaged by the scoop. Further, the mechanic 

stated that the cable is normally stored along the rib in a cut 

made for that purpose, and at the time of the citation, it had 

apparently fallen from the rib and was resting on the floor. I 

find that petitioner's interpretation of the standard in question 

is a reasonable and correct one, and in the circumstances, I find 

a violation has been established. 

Gravity 

The inspector considered the violation to be nonserious, and 

petitioner's counsel stipulated that the citation was nonserious, 

but that the practice of running over a cable was serious (Tr. 37-

g), Petitioner has presented no evidence that respondent makes it 

l practice to run ov~r cables, and the notice of violation makes 

~ such charge. Accordingly, I find that the violation is 

·1onserious. 

18 
Good Faith Compliance 

The evidence adduced reflects that the violation was immediately 

abated within 5 minutes, and in the circumstances, I conclude that 

respondent exercised rapid compliance once the citation issued. 

Negligence 

From the evidence presented, it would appear that the cable in 

question fell from its normal storage place alone the rib while the 

respondent was in the process of moving a power unit. The inspector 

testified that the violation was not intentional, and that it is 

easy for the scoop operator not to have seen the cable in question 

because of its position along the rib and the large size of the 

scoop which he was operating at the time of the citation. In this 

instance, he believed the scoop operator probably did not see the 

cable. In the circumstances, I cannot conclude that the operator 

was·negligent in this instance and find that he could not reasonably have known of the condition cited, In the circumstances, I 

find that the respondent was not negligent. 

DOCKET NO. DENV 78~522-P 

Fact of Violation--30 CFR 75.313 

In its answer filed September 18, 1978, respondent conceded a 

violation of 30 CFR 75.313, but contested the penalty assessment of 

$120 as excessive on the grounds that: (1) respondent has an excellent record showing few citations for significant past violations, 

(2) due to the size of its mining operation, the assessment is 

inappropriate, (3) there is no evidence that respondent was negligent, (4) the violation was not grave since immediate testing 

detected no methane, the methanometer was checked promptly upon 

notification of the violation and repaired immediately upon receipt 

of necessary parts, and (5) upon issuance of the order, immediate 

steps were taken to abate the violation. At the hearing, the 

respondent again conceded and stipulated to the fact of violation 

of the provisions of section 75.313, and indicated that it was contesting only the $120 initial civil penalty assessment levied with 

respect to the violation (Tr. 59). In the circumstances, I find 

that a viola~ion has been established. 

Good Faith liance 

During the course of the hearing in this matter, petitioner's 

counsel asserted that at the time the order issued, good faith was 

nonexistent because the problem with the mechanical linkage probably 

existed all along and it took an orde-r to gain compliance. However, 

the record shows that the respondent was having problems with the 

methane monitor which were obviously recognized by the inspector, 

since he issued several extensions of his notice. Inspector Lemon 

19 
conceded that on many occasions he will note on his notice that parts 

are needed to repair a piece of equipment and that he uses this as 

justification for extending the abatement time. He conceded that 

this is what occurred in this case and that he allowed ·3 days to 

obtain parts because the mine is in a remote area and parts must 

be obtained from Price, Utah. Inspector Lemon also candidly 

admitted that he did not believe that the respondent was using the 

fact that parts were required as an excuse for not complying with 

the abatement, and conceded that parts were "probably11 needed. In 

the circumstances, and based on the totality of the evidence presented, I conclude that respondent abated the violation in good 

faith, and under the circumstances presented, exercised normal good 

faith in achieving abatement. 

Gravity 

Petitioner stipulated that this violation was nonserious, and 

that is my finding (Tr. 73). 

Negligence 

An initial\ preshift or onshift inspection by the operator should 

have detected the inoperative monitor. I find that the respondent 

should have known about the inoperative condition of the methane 

monitor in question and that it failed to exercise reasonable care 

in preventing the condition cited. This constitutes ordinary 

negligence. 

Fact of Violation--30 CFR 75.200 

In its answer filed September 18, 1978, respondent denied that 

the violation occurred and contested the citation, but did not contest the proposed assessment of $115. As grounds for its contest of 

the citation, respondent asserted that: (1) it has an excellent 

record showing few past significant violations, (2) there is no evidence of negligence, the violation was not grave since no mining was 

taking place at the time of the inspection, and the only employees 

in the face area were timber men who were resetting the roof supports which had been removed to allow movement of machinery and 

cleaning behind the curtains. Further, respondent asserted that 

the roof had been checked in all seven faces of the mine both before 

and after the notice was issued and appeared sound, and even in the 

absence of supports, a roof fall was.highly improbable. Further, 

respondent asserted that if the roof plan submitted by respondent 

on May 19, 1978, and approved by the Mine Safety and Health Administration on May 30, 1978, had been in effect at the time of the 

inspection, when the mine roof conditions were the same as they 

were when the new plan was approved, the alleged violation would 

have been, at most, de minimis and-probably nonexistent. 

20 
At the hearing on November 15, 1978, respondent proposed to abandon its contest altogether with respect to the violation and moved to 

withdraw its contest with respect to both the fact of violation and 

the proposed assessment and indicated that it no longer wished to contest the violation and desired to pay the initial proposed assessment 

of $115 (Tr. 7-8). Petitioner opposed the motion to withdraw and 

respondent's offer to pay the assessment (Tr. 7-8). The parties 

were afforded an opportunity to present arguments on th~ record with 

respect to respondent's motion to withdraw its contest (Tr. 91-121). 

In support of its opposition to respondent's motion to completely withdraw its contest, petitioner argued that once a petition 

for assessment of civil penalty filed by MSHA, any proposed settlement must be agreed to by MSHA and approved by me in accordance with 

the Commission's rules. Petitioner's counsel asserted that he could 

not agree with respondent's offer of payment since he believed the 

facts warrant an assessment higher than that made by the assessment 

officer for the violation in question. Petitioner views respondent's 

attempts to withdraw at the hearing stage of the proceeding as an 

offer to settle the matter and that petitioner does not agree to 

any settlement. Since the matter is de novo before me, petitioner 

asserted that I am not bound by the prior assessment and should 

proceed with the matter and decide not only the question of violation, but also the amount of penalty to be assessed, taking into 

account the statutory criteria for assessment of civil penalties. 

In support of its motion to withdraw, respondent argued that it 

simply wishes to abandon its appeal and pay the assessment, and that 

the question of settlement is immaterial. Respondent's counsel conceced that settlement discussions were, in fact, conducted between 

the parties, but that petitioner took the position that unless 

respondent agreed to abandon all of the section 75.200 violations 

at issue in the other dockets which are the subject of these proceedings, petitioner would not agree to the settlement of the 

instant case. That proposal was unacceptable to the respondent, 

and citing Commission Rule 29 CFR 2700.lS(a), counsel argued that 

respondent has a right to withdraw a pleading at any stage of the 

proceeding with the approval of the Commission or one of its judges. 

Since counsel views the notice of contest as a pleading, he argued 

that it may be withdrawn at any time and that I have sole discre.tion 

in the matter, regardless of whether or not petitioner agrees to the 

withdrawal. With respect to Commission Rule 2700.27(c), dealing with 

Commission approvals of proposed settlements, counsel took the position that the rule only deals with contested penalties, and since 

respondent did not contest the penalty assessed for the violation, 

that rule is inapplicable. 

After consideration of the arguments made at the hearing, respondent's motion to withdraw its contes~ was denied and respondent was 

afforded an opportunity to present any evidence it desired in support 

21 
of its position regarding any penalty assessment to be made by me with 

respect to the violation (Tr. 116-118). 

Respondent's reliance on Commission Rule 2700.lS(a) in support of 

its motion to withdraw its contest, is rejected. As noted in Ranger 

Fuel Corporation, 2 IBMA 186 (1973), once a petition for assessment of 

civil penalty is filed with a judge, jurisdiction vests, and the 

request for a hearing on the merits of the petition, not being a 

pleading, may not be withdrawn. In addition, it is well settled that 

civil penalty proceedings before the Co~nission or one of its judges 

is a de novo proceeding, and that the prior proposed assessment made 

pursuant~Part 100, Title 30, Code of Federal Regulations, is in no 

way controlling. See Gay Coal, Inc., 7 IBMA 245 (1977); Boggs Construction Company, IB:MA 252 (1976); Lewis Coal Company, 6 IBMA 263 

(1976). The jurisdiction of the judge to proceed in a civil penalty 

proceeding is not affected by the method of computation utilized by 

the Office of Assessments in arriving at an initial proposed civil penalty. Buffalo Mining Company, 2 IBMA 226 (1973); Eastern Associated 

Coal Corporation, 3 IBHA 132 (1974). Further, it is also clear that 

a judge lacks the authority to order MSHA to recompute proposed 

assessments of c,ivil penalties. Clinchfield Coal Company, 3 IBMA 

154 (1974); Consblidation Coal Company, 3 IBHA 161 ( 1974). 

I am of the view that my responsibility under the law in a contested proceeding, in which a mine operator has requested a hearing, 

is to afford him that opportunity and to adjudicate the case and 

issue a decision based on the record made at the hearing, including 

a realistic and even-handed consideration of the statutory criteria 

with respect to the assessment of civil penalties which have been 

proven by a preponderance of the evidence. 

On the facts presented in this case, I conclude that respondent's 

untimely attempt to withdraw its contest at the hearing and its offer 

to pay the initial assessment is an offer of settlement which must 

be concurred in by MSHA and approved by me pursuant to Rule 2700.27(d). 

Since MSHA did not agree to the proposed settlement, there is nothing 

to approve, and my previous ruling made at the hearing, denying 

respondent's motion to withdraw, is reaffirmed. 

Responded conceded the fact of violation, and, in addition, after 

consideration of the testimony and evidence adduced by petitioner and 

respondent with respect to the citation, I conclude that the record 

supports a finding of a violation of section 75.200. 

Negligence 

Except for the testimony of Mr. Danio, respondent presented no 

testimony in defense of the cited condition. Mr. Danio did not view 

the condition cited and had no personal knowledge of the condition 

which the inspector observed. The inspector believed the face boss 

22 
should have been aware of the fact that the timbers were not 

installed. The fact that he may not have been in the area during 

the cleanup or when the citation issued is innnaterial. An operator 

is presumed to know the requirements of his own roof control plan 

and the section foreman is responsible for seeing to it that the 

plan is followed during his working shift. I find that the respondent failed to exercise reasonable care to prevent the violation, 

and that this constitutes ordinary negligence. 

Gravity 

Inspector Lemon testified that at the time he observed the condition cited, he observed a loader coming out of the area of unsupported roof with.a load of coal. However, he saw no one else there 

and no coal drilling or shooting was taking place. He tested the 

roof and it was not drummy, and at the point where the last support 

was installed, the roof was sound. Beyond that point, the roof 

appeared to be sound upon visual inspection and he observed no 

cracks. Although he indicated that the probability of a roof fall 

increases when pillars are pulled, in this instance, no pillars had 

been pulled, and t'he entry and working faces were not taking weight. 

In this case, the inspector could not conclude whether the violation in question was serious, and indicated that his gravity 

statement should have indicated 11 improbable, 11 rather than "probable." 

However, the fact remains that the required roof support was not 

installed and the loader operator was observed coming from the area. 

While the actual roof conditions up to the point of last roof support were good and the roof area immediately beyond that point 

appeared sound upon visual inspection, the inspector did not venture 

beyond that point to test the roof because additional timbers had 

not been installed. Roof falls are unpredictable, and unsupported 

roof presents a hazard to miners working in such areas. In the circumstances, I find that the condition cited presented a potential 

danger of a roof fall and consequently, I conclude that the violation was serious. · 

Good Faith Compliance 

The inspector testified that the section crew began the installation of the required roof timbers within 10 minutes of his making 

his measurements to support the citation. I find that this constituted rapid abatement of the cited violation and good faith 

compliance. 

DOCKET NO. DENV 78-523-P 

Fact of Violation--30 CFR 75.316 

In its answer of September 18, 1978, respondent denied that it 

was in violation of its ventilation plan or section 75.316, and 

23 
asserted that no violation of section 75.316 was alleged in the citation, that the ventilation plan in effect at the time of the citation required that line curtains be maintained to within 12 feet 

of the area of deepest penetration in any face when coal is being 

cut! mined or loaded, and since no cutting) mining or loading of 

coal was taking place at the time of the inspection, there is no 

violation. In support of its opposition to the proposed assessment 

of $1,200, respondent argued that the amount is inappropriate in 

view of its excellent past history of violations, its size of business, lack of negligence, and prompt abatement upon issuance of the 

order. Further, respondent argued that the violation was not grave 

in that testing in the mine established that there was sufficient 

ventilation to keep methane levels in the mine below 1.0 volume 

per centum as required by section 75.308. 

Failure by an operator to comply with any provision of its ventilation plan constitutes a violation of the provisions of 30 CFR 

75.316. Peabody Coal Company, 8 IBMA 121 (1977); Valley Camp Coal 

Company, 3 IBMA 176 (1974); Zeigler Coal Company v. Kleppe, 536 F.2d 

398 (D.C. Cir. 1976). The fact that coal was not being cut or loaded 

at the precise mpment that the inspector arrived on the scene and 

observed that th~ line curtain had not been advanced as required is 

immaterial, and r~spondent's proposed interpretation of the standard 

cited is rejected. It is clear to me from the testimony by the 

inspector that the curtain in question had not been advanced while 

coal was being cut, mined, and loaded during the shift preceding his 

inspection, and respondent has presented no evidence to rebut this 

testimony. Where an inspector describes a condition alleging a violation which occurred during the working shift immediately preceding 

,- 11e shift in which the inspection is made, a prima facie violation 

<i:ay be found on the basis of the inspector's 'findings that he could 

dnd no evidence of compliance. Rushton Mining Company, 6 IBMA 329 

\1976). Here, the order issued by the inspector described the condition which he believed constituted a violation, and he specifically 

cited section 75.316, as did the petition for assessment of civil 

penalty. Consequently, respondent's contention that the citation 

failed to cite the standard violated is rejected. 

Based on the foregoing, I find and conclude that the petitioner 

has established a violation of 30 CFR 75.316 as charged in the 

citation. 

Gravity 

The inspector testified that the line curtain violation, standing 

alone, would not have prompted him to issue a closure order (Tr. 17). 

Although he did testify that he found other line curtains in disrepair, he did not cite the respondent.for this condition, and his 

notice is limited to the fact that the line curtain in question was 

24 
not extended the required distance to the face. I conclude that the 

seriousness of the situation presented must be considered in light of 

the prevailing conditions. Here, it clear that the inspector did 

not take any air readings or otherwise test for dust accumulations, 

methane, etc., and based his findings on conditions which he believed 

existed on the previous shift while coal was being mined. Further, 

at the time the citation'issued, petitioner conceded that the area in 

question was not dusty, and had been cleaned up (Tr. 24-25). Since 

petitioner has the burden of proof, I cannot conclude that the violation was serious, even though one may assume that the failure to 

extend the curtain in question may have had some adverse impact on 

the mine environment. Although I have sustained the fact of violation 

on the basis of inferences based on the inspector's finding that mining had taken place on the previous shift, absent any evidence as to 

what the actual prevailing conditions were at that time, I cannot 

conclude that the question of the seriousness of a violation can be 

determined on inferences. Although the inspector's gravity statement 

reflects that the cutting machine and scoop operator were exposed to 

diesel fumes building up at the face, it is clear that this was an 

assumption by the inspector. Respondent's testimony indicates that 

ventilation was adequate, that the machine operators were operating 

away from the face. environment, that the fans installed on the equipment would disperse any diesel fumes, and no methane buildups were 

present. The inspector did not check the preshift books, and he 

admitted that at the time the violation issued, the mine ventilation 

devices were in "good shape 11 since the required face ventilation was 

being maintained (Tr. 225). Based on the totality of the circumstances presented, I find that this violation was nonserious. 

Good Faith Abatement • 

Inspector Jones testified the entire crew was assigned to correct 

the conditions cited, and petitioner stipulated that the respondent 

exercised good faith in abating the violation (Tr. 12, 14). I find 

that the violation cited was abated in good faith by the respondent 

once it was issued, and that respondent exercised normal compliance 

in this regard. 

Negligence 

The inspector testified that the condition cited was readily 

observable to anyone walking in the area where the line curtain had 

not been advanced. He also testified that the section foreman on 

duty during the period the citation issued advised him that he was 

not surprised at the conditions cited and that the preceding shift 

had left the section "this way" in the past. Further, the inspector 

testified that after issuing the citation, he and the mine safety 

director went back to the section to observe the conditions. 

Neither the safety director nor the section foreman testified in 

this proceeding, and in the circumstances, the inspector's testimony 

25 
is unchallenged. Based on his testimony, I can only conclude that 

the respondent should have been aware of the conditions cited, that 

it failed to exercise reasonable care in preventing the condition 

cited, and that its failure in this regard constitutes ordinary 

negligence. 

With respect to Inspector Jones' testimony concerning the conversation that he had with Section Foreman LaValley, Inspector Jones 

produced the notes which he made concerning this conversation at the 

time he cited the violations which are in issue in Docket No. DENV 

78-523-P (Exh. P-31). His notes confirm his testimony that 

Mr. Lavalley had admitted that the previous shift had left the section in "this kind of situation,'' and that Mr. LaValley had expressed 

some concern over·the fact that his working shift was being held 

responsible for the conditions of the section. 

Inspector Jones identified Exhibit P-31 as the notes which he 

took with respect to the conversation he had with Mr. Lavalley at the 

time he initially observed the conditions which led to his citations, 

and the conversation he had with Mr. Sikes after taking him back to 

the section to ob,erve the conditions (Tr. 233). Respondent objected 

to the introductio~ of the notes made by Inspector Jones on the ground 

that the notes are not contemporaneous~ but rather, collateral notes 

on matters which respondent was not aware of prior to the hearing. 

The essence of respondent's objection is its assertion that failure 

to make the notes available earlier in the proceedings, deprived 

respondent of an opportunity to make an informed judgment as to 

whether it should litigate the violations in the first instance. 

The objection was overruled and the notes were received (Tr. 82, 

Nov. 16). 

Respondent's counsel questioned Inspector Jones regarding his 

normal and usual practice with respect to notetaking. He indicated 

that it was his usual practice to take notes so as to be able to 

recollect what transpired with res.pect to a given violation which 

is issued, that the notes are maintained in his personal custody, 

and once written, he does not change them nor take them out of his 

personal notebook. He takes notes at the mine site at the time of 

the citation, and his inspector's statements are written up after 

he goes back to his office, and, at times, he has referred to his 

notes in compiling these statements (Tr. 83-88). 

Respondent's objections to the introduction of the inspector's 

notes are again rejected and my previous ruling in this regard is 

reaffirmed. It is clear to me that the notes in question were contemporaneous notes made at or near the time of the issuance of the 

citation. The inspector was cross-examined and respondent has not 

been prejudiced. The inspector was free to refresh his recollection 

from his notes, U~fivA v. Westmoreland Coal Company, Commission Docket 

No. 76-16, January 10, 1979. Further respondent had ample opportunity 

26 
to obtain the notes prior to hearing, but failed to avail itself of 

the discovery procedures in this regard. Respondent's counsel was 

given an opportunity to review the notes at the hearing and to crossexamine the inspector. Respondent could have called Mr. Lavalley as 

a witness, but did not do so. Consequently, in light of all of these 

circumstances, respondent's assertions of 11 foul play" are rejected. 

Respondent's preshift report for December 30 (Exh. R-1), contains a notation concerning "timbers" for the No. 3 entry, but no 

such notations for the Nos. 4 or 6 entries where the timbering citations were issued. However, respondent failed to call the preshift 

examiner who purportedly conducted the inspection and prepared the 

report and I have given it little weight as any indication that the 

conditions cited did not exist as charged. 

Violation--30 CFR 75.200 

In its answer of September 16, 1978, respondent contested both 

the fact of violation and the proposed penalties assessed for two violations of section 75.200 (7-0112, 7-0113), and its defense was identical to that asserted in Docket No. DENV 78-522-P concerning_Violation 

No. 8-0015, 75.200, issued January 30, 1978. As for its contest of 

the proposed asses'sments of $1,200 for each of the roof control violations in this docket, respondent asserted that they are grossly 

disproportionate to the amount of penalty assessed for the subsequent 

similar violation issued in the previous docket ($115). 

At the hearing of November 15, respondent conceded the fact of 

violations and indicated that it desired only to contest the amount 

of the penalties assessed for Violation Nos. 7-0112 and 7-0113 (Tr. 

7). In the circumstances, I find that respondent violated the provisions of 30 CFR 75.200 as alleged in Citation Nos. 7-0112 and 

7-0113, issued on December 30, 1977. Aside from respondent's admission that it was in violation of the cited standard, the evidence 

adduced by the petitioner in support of its assertions that respondent violated the cited standard, support a finding of violation in 

both instances. Further, it is clear that the failure of a mine 

operator to comply with a provision of its own roof control plan 

concerning roof support consitutes a violation of section 75.200 of 

the mandatory safety standards. Peabody Coal Company, 8 IBMA 121 

(1977); Affinity Mining Company, 6 IBMA 100 (1976); Dixie Fue 1 Company, Gray's Knob Coal Company, 7 IBMA 71 (1976). 

Good Faith Abatement 

Inspector Jones testified that the entire crew was assigned to 

correct the conditions cited, and petitioner stipulated that the 

respondent exercised good faith in abating the violations (Tr. 12, 

14)~ I find that the violations cited were abated in good faith 

by the respondent once they issued, and that respondent exhibited 

normal compliance in this regard. 

27 
Gravity 

Although Inspector Jones observed no men working under the unsupported roof areas or equipment operating in that area at the time he 

issued the citations, the fact is that mining had taken place in the 

areas cited on the previous shift, coal had been cut and loaded out, 

and the area cleaned up. Thus, it is clear to me that men had worked 

under unsupported roof during the previous mining cycles and were 

exposed to that hazard. The fact that the roof did not fall on them 

does not detract from the fact that working under unsupported roof 

exposed the men working in those areas to potentially hazardous and 

dangerous conditions. 

The evidence and testimony adduced by the respondent in these 

proceedings supports its contention that the roof conditions in the 

mine are generally good, but this does not excuse the failure of the 

respondent to install the roof supports required by its plan. 

Further, the fact that the roof control plan permitted the removal of 

one support post near the face to facilitate the movement and maneuvering of equipment during the mining cycle, does not excuse the failure 

to install the r~maining posts required by the plan or to reinstall 

the posts remove~once the mining cycle is completed. Here, the evidence establishes '.that the respondent failed to install a total of at 

least 12 additional roof support timbers in the three entries cited 

by the inspector. 

The fact that mine roof conditions are generally good does not 

insure against roof falls which could occur at any time in a mine as 

the mining cycle advances and conditions change. Mr. Dania confirmed 

that some roof settlement does occur during blasting at the face, and 

while he also indicated that roof faults have not been encountered, 

he based this on some 50 roof holes drilled over the 445 acres which 

comprise the limits of the mine. While it is true that the mine in 

question does not have a history of roof falls, Mr. Dania did indicate that a roof fall occurred approximately a year and a half ago, 

but that the operator was aware of the loose roof conditions in 

that instance and dangered the area off. He also indicated that 

some roof flaking o6curs in older mine areas and. small pieces of 

roof coal have been found in areas more recently mined. 

As for the actual roof conditions which existed at the time of 

the citations, Inspector Jones indicated that the roof in the No. 3 

entry was not cracked. As a matter of'fact, his testimony does not 

reflect the actual roof conditions which existed at the area cited 

in Citation No. 7-0013. As for the roof conditions which existed in 

the No. 4 entry (Citation No. 7-0012), he testified that it was 

cracked, drummy, and flaking, inby the last roof support, and this 

testimony remains unrebutted. 

28 
I find that both violations were serious. Men were working 

under unsupported roof and were exposed to a potential hazardous 

situation, particularly in the No. 4 entry. 

Negligence 

Both of the roof suport citations in this case were cited by 

Inspector Jones during his inspection on December 30, and the citations involve the failure of the respondent to maintain roof support timbers to within 15 feet of the face in entry Nos. 3 and 4 

in the Southwest section of the mine, as required by its approved 

roof control plan. ·inspector Jones testified that he believed the 

conditions cited existed for at least two mining cycles because 

each cycle advances some 10 to 11 feet, and .since the timbers which 

were in place at' the time of his inspection were installed to within 

44 feet of the face in the No. 4 entry, and to within 33 feet of the 

face in the No. 3 entry, he believed that mining had advanced at 

least two cycles during the previous shifts without the installation 

of additional roof support timbers. He also indicated that coal had 

been cut during these previous shifts and that the entries were 

loaded out and cleaned, but no additional roof support was installed. 

Further, when he confronted the section foreman with the conditions 

of the entries, the section foreman candidly admitted that the timbers were not installed, admitted that he was aware of this fact, and 

attributed the failure to install the required roof supports to the 

fact that the previous shift had left the section in the condition 

found by Mr. Jones. Subsequently, when Safety Director Hales was 

taken to the area cited by Mr. Jones, Mr. Jones related to him what 

the section foreman had told him, and according to Mr. Jones' testimony, Mr. Hales expressed some embarrassment over the conditions of 

the entries, as did Mine Engineer Sikes, who Mr. Jones claims agreed 

with his findings. 

Except for the testimony of Mr. Dania, respondent failed to call 

any other witnesses in defense of the roof support citations. Thus, 

Inspector Jones' testimony, documented by his notes taken at the time 

in question, has not been rebutted by the respondent. After listening to Mr. Jones' testimony and viewing him on the stand during the 

course of the hearing in this matter, I find him to be a credible 

witness and I accept his testimony concerning the conversations he 

had with mine management with respect to the conditions he found at 

the time of the citations. As for Mr. Dania's testimony, he was not 

present when the citations were issued', nor did he view the conditions cited by Mr. Jones. However, Mr. Dania candidly admitted that 

one possible explanation for the failure to install the additional 

roof supports in question was "bad mining practices" and "problems" 

which have occurred in the past (Tr. 208). 

Based on the foregoing, I believe it is clear that the respondent was well aware of the fact that the required roof support timbers were not installed as required by its own roof control plan. 

29 
While the evidence presented by the petitioner suggests a somewhat 

cavalier attitude by mine management with respect to its own roof 

support plan then in effect, and borders on gross negligence, I 

cannot conclude that the record supports a finding of a deliberate 

and reckless disregard for safety. While the section foreman on 

the shift in question admitted he was aware that the timbers were 

not installed, he attributed this to inaction by the previous shift, 

and Mr. Danio attributed it, in part, to bad mining pra~tices. None 

of the mine personnel from the previous shift were called to testify 

by either the petitioner or the respondent and there is no explanation as to why the required timbers had not been installed after the 

area was mined and cleaned up. 

In view of the foregoing, I find that the respondent failed to 

exercise reasonable care to prevent the violation and failed to exercise reasonable care to correct the cited conditions which it knew 

existed, and that this failure on its part constitutes ordinary 

negligence as to both section 75.200 Citation Nos. 7-0112 and 7-0113. 

DOCKET NO. DENV 78-524-P 

Fact of Violati\m--30 CFR 75.200 

In its answer of September 18, 1978, respondent contested both 

the alleged violation and the proposed penalty assessment of $500, 

and its arguments in support of its contest were the same as those 

made in the previous dockets. However, at the hearing, respondent 

conceded the fact of violation and contested only the amount of the 

proposed civil penalty (Tr. 7). I find that the evidence adduced 

establishes a violation of section 75.200. 

Good Faith Abatement and Negligence 

My previous findings and conclusions, with respect to good faith 

abatement and negligence concerning the roof support violations in 

Docket No. DENV 78-523-P, Citation Nos. 7-0112 and 7-0113, are herein 

incorporated by reference as my findings and conclusions concerning 

Citation No. 7-0110 in this docket. I find that respondent exercised 

,normal good faith compliance in abating the cited condition, and 

failed to exercise reasonable care to prevent a condition which it 

knew existed and that this failure on its part constitutes ordinary 

negligence. 

Gravity 

With regard to the actual roof conditions which existed in the 

No. 6 entry at the time the citation issued, Inspector Jones test 

fied and confirmed his previous finding that the roof was drummy and 

cracked. He also testified that he found some 6 feet of loose roof 

ceal present inby the last support which was ready to fall and had 

30 
to be barred down. While he did not know whether that condition 

existed on the previous shift while men were working in that area, 

it is reasonable to conclude that it did, and respondent presented 

no testimony or evidence to rebut the inspector's testimony. In 

the circumstances, I conclude and find that the violation was 

serious. 

Petitioner's Assessment Procedures and Inspector Practices 

During the course of the hearing and in its posthearing brief 

and proposed findings and conclusions, respondent emphasized what 

it believes to be a most inadequate and often misleading use of the 

inspector's stat~ment, a form usually filled out by an inspector 

after a citation is issued. The form contains information regarding 

negligence, gravity, and good faith compliance, and it is completed 

by the inspector who issues a citation and used by the assessment 

officer in evaluating a particular violation and arriving at an initial civil penalty assessment. While I am in agreement with the 

respondent's observations that these statements sometime contain 

inadequate and unsupported conclusions, and often present only the 

unfavorable portions of an inspector's comments or observations, I 

cannot conclude,that this results from any deliberate or conscious 

effort by the in'spector to bolster or support his actions. For the 

most part, I believe the practices complained of result from the use 

of standardized subjective forms which place the inspector in the 

position of making a one-sided evaluation in order to support the 

action taken by him. Further, once the matter is referred to the 

assessment officer, unless there is some imput by the operator at a 

conference, the only information available to the assessment officer 

is the bare notice and the inspector's statement. 

One example of what I consider to be a misleading inspector's 

statement Exhibit P-9, dealing with a violation of section 75.313 

(Docket No. DENV 78-522-P). Although the inspector checked several 

of the gravity blocks, he indicated 11 none" under the "Remarks" portion of the form, completely struck out the "Good Faith" portion, 

and indicated that 20 workers were exposed to the hazard presented 

by the violation. During the hearing, the inspector testified that 

he extended the notice several times because of needed parts to 

repair a methane monitor, that he made a mistake in noting that 

20 miners were exposed to any hazard, when, in fact, it should· have 

reflected only those actually working on the shift, and that he 

crossed out the "Good Faith" portion of the form because he is 

instructed not to fill that portion o~t when an order has been 

issued. While it would appear from the evidence presented at the 

hearing, that the scoop in question was initially removed from the 

mine to effect repairs, but subsequent problems ensued once the 

scoop was brought back into the mine, and the violation was nonserious because of the lack of methane, those facts are not 

reflected in the inspector's statement. 

31 
Another example noted in these proceedings is Exhibit P-3, concerning the cable violation (Docket No. DENV 78-521-P. The inspector's statement indicates "probable" and "disabling" under the 

"Gravity" portion of the form, when, in fact, the testimony at the 

hearing reflected that the cable was disconnected and not energized, 

and the inspector testified that the violation was nonserious. While 

the form on its face contains a space for the inspector to note conditions or circumstances which might have decreased the severity of 

the condition, it is simply marked 11 none 11 in the "Remarks" portion. 

I take note of the fact that the inspector who issued the aforementioned citations was a new inspector who was simply attempting to 

perform his duty to the best uf his ability, and the fact that he 

candidly admitted on reflection that his wr1tten analysis of the 

situation made at the time of the event may have been somewhat misleading is to his credit. However, this is an area which should be 

addressed by MSHA in its inspector training programs, particularly 

when it results in a somewhat unrealistic or subjective assessment 

evaluation by an assessment officer who all too often is engrossed in 

applying "special formulas 11 and other such mathematical machinations 

in attempting\to apply the criteria set forth in Part 100, T~tle 30, 

Code of Feder~J Regulations, to any given violation. 

Having made my observations with respect to problems which are 

encountered with inspectors' statements and the application of 

Part 100, it is only fair to make some observations with respect to 

an operator 1vho 11 sleeps 11 on his rights. In these cases, the mine 

operator had a full and fair opportunity to avail himself of the 

opportunity to submit any information pertaining to the cited violations to the Assessment Office and to request a conference for the 

purpose of bringing to the attention of the Assessment Office mitigating circumstances which he believes warrant consideration in 

arriving at a fair and equitable initial civil penalty assessment. 

Apparently, this was not done in these cases. Further, the respondent presented little substantive testimony in defense of the cited 

violations and the principal thrust of its case centered on an attack 

on .MShA's enforcement practices, Enforcement of the Act and the 

promulgated mandatory safety and health standards lies with the 

Secretary and is solely within his jurisdiction and authority. My 

jurisdiction is limited to the adjudication of cases after the operator has been afforded an opportunity to be heard. In these cases, 

I cannot conclude that the enforce~ent practices complained of by 

the respondent were so arbitrary or capricious as to warrant dismissal of the citations and the petitions for assessment of civil 

penalties filed by the petitioner. To the contrary, I believe it 

is clear from the record that the respondent has had a full and 

fair opportunity to be heard and to present its defense. 

32 
Conclusion 

On the basis of the foregoing findings and conclusions, respondent is assessed civil penalties for the violations which have been 

e•t~blished, as follows: 

Docket No. DENV 78-521-P 

Citation No. Date 

8-0005 1/09/78 

Docket No. DENV 78-522-P 

8-0010 

8-0015 

1/19/78 

1/30/78 

Docket No. DENV 78-523~P 

7-0111 

7-0112 

7-0113 

12/30/77 

12/30/77 

12/30/77 

Docket No. DENV 78-524-P 

7-0110 12/30/77 

30 CFR Section 

75.517 

75 .313 

75.200 

ORDER 

75.316 

75.200 

75. 200 

75.200 

Assessment 

$25 

$25 

$250 

$150 

$1,000 

$850 

$1,000 

Respondent is ORDERED to pay the penalties assessed in these proceedings, as indicated above, in the total amount of $3,300 within 

thirty.(30) days of the date of these decisions. 

Distribution: 

Edward Fitch, Trial Attorney, Office of the Solicitor, MSHA, 

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

22203 

Robert L. Morris, Esq., Western States Coal Corp., 2600 Colorado 

National Bldg., 950 17th Street, Denver, CO 80202 (Certified 

Mail) 

Standard Distribution 

33 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

March 5, 1979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PITT 78-368-P 

A/O No. 36-00906-02016 V 

v, 

GATEWAY COAL COMPANY, 

Respondent 

Docket No. PITT 78-369-P 

A/O No. 36-00906-02017 V 

Appearances: 

Before: 

Gateway Mine 

DECISION 

David F. Barbour, Esq., Office of the Solicitor, 

Department of Labor, Arlington, Virginia, for 

Pet;itioner MSHA; 

R. H~nry Moore, Esq., Rose, Schmidt, Dixon, Hasley, 

Whyte & Hardesty, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Merlin 

The above-captioned cases are petitions for the assessment of 

civil penalties filed by the Mine Safety and Health Administration 

against Gateway Coal Company, the respondent, .. At the outset of the hearing, operator's counsel challenged 

MSHA 1 s assessment procedures. I.held that the hearing before me 

is de novo in all aspects, and that NSHA's assessment procedures 

are-;ot involved stating in this respect as follows (Tr. 16-17): 

I hold I have no jur diction to review the Secretary 

of Labor 1 s asse.ssment procedures. There is no point in 

taking evidence regarding the assessment procedures because 

it does not lie within my jurisdiction to do anything about · 

it. 

The hearing before the Administrative Law Judges of 

the Commission in penalty cases are entirely de novo. 

The proposed assessments not only are not binding upon me, 

but I wholly reject any notion that they have an influence 

potential, or actual, upon the ultimate determination I 

make in any given instance. 
I determine the existence of a violation in a hearing 

such as this based solely upon the record, documentary and 

testimonial, which is made before me. Where I conclude a 

penalty exists, I determine the amount of penalty in 

accordance with the statutory criteria, based, once again, 

solely upon the record made before me. 

I note that section 2700.24 requires that the petition 

for civil penalties include the proposed penalties. This, 

obviously, has to do with the settlement process concerning 

which, as both.counsel well know, Congress expressed 

serious concern. 

This concern found expression particularly with 

respect to the reduction of original assessments. But this, 

again, dealt only with the settlement process. Once we 

come to a hearing on the merits, as we are doing here, the 

entire matter is de novo; and I am not influenced by anything except the record that is made before me in this room. 

It makes no difference in this penalty proceeding 

whether the alleged violation was cited in an order of 

withdrawal~ or in a notice of violation. The issue before 

me is not whether a notice, instead of an order, should 

have been issued; or whether, in particular, the issuance 

of an unwarrantable order was justified. 

The Act very specifically sets forth the type and 

nature of hearing to be held in penalty cases. I do not 

believe the Administrative Law Judges have been given the 

authority to oversee the Secretary's assessment procedures; 

especially where, as here, those procedures have no effect 

whatsoever on the ful llment and discharge of my 

responsibilities. 

Item 7-0121 

At the hearing, documentary exhibits were received and witnesses 

testified on behalf of MSHA and the operator regarding this item. At 

the conclusion of the taking of evidence, the parties presented oral 

argument (Tr. 78-88). A decision was then rendered from the bench 

setting forth findings, conclusions, and determinations with respect 

to the alleged violation as follows '(Tr. 88-91): 

Based upon the testimony which I have heard this 

morning, I find the violation existed. I accept the 

inspector's description of the cited condition as consisting of loose coal, coal dust, and float coal dust 

ten feet wide, SO.feet long, and up to six inches in 

depth with most of the depth consisting of float coal 

dust. 

2 
The inspector's testimony regarding the condition 

is the most detailed and, therefore, the most persuasive 

evidence on the point. I also accept the inspector's 

opinion that this condition existed for more than 

eight hours. 

I conclude that the operator should have been aware 

of these accumulations, and that it did not take the 

necessary steps to clean them up. I further accept the 

inspector's view that the materials in question should 

have been cleaned up before the midnight shift ended 

and that because they were not so cleaned up, the operator permitted them to exist within the purview of section 75.400. · For all these reasons, therefore, I find 

a violation. 

With respect to gravity, the inspector on direct 

testimony referred to danger from explosion, fire, and 

dust among other things. However, on cross-examination, 

the inspector stood by his contemporaneous written statement to the effect that it was improbable that any of these 

hazards\would occur. He specifically referred to the good 

condition of the rest of the section, which was rock 

dusted, the good condition of the roof, and the presence 

of water hose. In this connection, I also note the limited 

extent of the accumulation. Therefore, while the violation 

is serious because it presents a danger to the safety of 

the miners, it is not as serious as it would first appear. 

In light of the foregoing, I conclude the violation is of 

ordinary gravity. 

Based upon the facts already set forth, I find the 

operator was negligent because it should have been aware 

o~ the accumulations; and should have cleaned them up 

at least on the prior midnight shift. 

I take into account the history of prior violations 

shown on the printout. However, in the absence of the 

definitive information regarding statistics for violations 

of section 75.400, I cannot accept the Solicitor's ballpark representation that the operator's violations of that 

mandatory standard amounting to approximately 56, is 

excessive when compared with 'the record of other operators. 

However, as operator's counsel himself pointed out, there 

were 18 violations of section 75.400 in 1977. I take all 

the foregoing into account in considering the operator's 

prior history as well as the fact that its record apparently improved with respect to 75.400 in 1978. 

3 
In accordance with the stipulations agreed to by the 

parties, I find the operator is large in size. In accordance with the stipulations agreed to by the parties, I 

find this violation was abated in good faith. In 

accordance with the stipulations of the parties, I find 

that the assessment of any penalty will not affect the 

operator's ability to continue to do business. 

In light of all foregoing factors, the penalty of 

$400 is hereby assessed. 

Item 7-0117 

The Solicitor moved to withdraw this item without prejudice 

because the inspector could not testify due to a serious illness. 

The motion, which was granted from the bench, is hereby affirmed 

(Tr. 10). 

Item 7-0128 

The parties recommended a settlement of $400 for this violation 

of section 75 .4'QO. The Solicitor advised that the accumulations in 

this instance were comparable to those in Item 7-0121 concerning 

which a hearing had been held, and that in this instance also, the 

inspector would testify that the occurrence of any danger was improbable. Accordingly, the recommended settlement of $400 was approved 

from the bench and is hereby affirmed (Tr. 92-94). 

Item 7-0131 

The parties recommended a settlement of $400 for this violation 

of section 75.400. Once again, the Solicitor advised that although 

this violation was composed of three separate accumulations, it was 

comparable in nature and extent to those already considered. 

Accordingly, the reconunended settlement of $400 was approved from 

the bench and is hereby affirmed (Tr. 94-95). 

Item 7-0133 

The parties recommended a settlement of $2,500 for this violation of 75.400 which involved 4,400 feet of loose coal, coal dust, 

and float coal dust. According to the Solicitor, the violation was 

visually obvious and very serious, although in mitigation of gravity, 

the Solicitor stated there were no roof or electrical defects. I 

approved the recommended settlement from the bench on the ground 

that $2,500 was a substantial penalty which would effectuate the 

purposes of the Act. The approval of the settlement is hereby 

affirmed (Tr. 97-99). 

4 
Item 7-0110 

The parties recommended a settlement of $300 for this item, which 

was a violation of 75.1107-l(b), because eight sprays on the continuous miner were not working. The Solicitor pointed out that gravity 

was mitigated because 12 other sprays on the machine had not been 

cited, and there were no electrical defects or accumulations of 

grease or oil on the machine. Accordingly, the recommended settlement was approved from the bench and is hereby affirmed (Tr. 95-97). 

Item 7-0111 

The parties recommended a settlement of $500 for this violation 

of 75.601 which involved the use of a jumper cable without shortcircuit protection for one hundred feet. In mitigation of the penalty amount, the Solicitor pointed out that the operator had shown 

an improving safety record with respect to this mandatory standard. 

I found the violation serious and stated that were it not for the 

operator's improving safety record, a higher penalty would have been 

imposed. However, in view of all the circumstances, the recommended 

settlement was accepted from the bench and is hereby affirmed (Tr. 

99-101). 

ORDER 

I note that the originally assessed amounts were $4,000 for 

each of the accumulations violations. These amounts are excessive, 

especially with respect to violations where the inspector himself 

admitted the occurrence of any danger was unlikely. The originally 

assessed amounts of $1,500 for the other violations also were too 

great in light of the circumstances. I state, as I have before, 

that the imposition of such large amounts unwarranted by the facts 

does not serve any valid program purpose. 

The operator is ORDERED to pay $4,500 within 30 days. 

~J_~ Paul Merlin 

Assistant Chief Administrative Law Judge 

Issued: March 5, 1979 

Distribution: 

David F. Barbour, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley, Whyte & 

Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified 

Mail) 

5 
Distribution Cont'd. 

Administrator, Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 Wll.SON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HALLMARK & SON COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 79-60-P 

A/O No. 01-01721-03001 

Coal Branch Strip Mine 

DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT ADDITIONAL INFORMATION 

The Solicitor recommends settlement approval for the originally 

assessed amounts. However, the Solicitor gives no reasons beyond the 

bare statement that the proposed settlement is reasonable in light 

of the alleged g,ravity and negligence of each violation. The gravity 

and negligence of the violations are not explained. The parties must 

recognize that once a matter is before the Commission recommended 

settlements cannot be approved solely because the operator now agrees 

to pay the assessed amounts. 

Accordingly, the Solicitor is ORDERED on or before March 15, 1979 

to submit information sufficient to support his recommendation. 

Failure to do so will result in issuance of a show cause order and 

dismissal of the petition. 

-=\)J Paul Merlin 

Assistant Chief Administrative Law Judge 

Issued: March 5, 1979 

Distribution: 

Leo J, McGinn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Thomas L. Stewart, Esq., Waldrep, Stewart & Kendrick, 1507 City 

Federal Building, Birmingham, AL 35203 (Certified Mail) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

March 5, 1979 

SECRETARY OF LABOR, Applications for Review of 

MINE SAFETY AND HEALTH Discrimination 

ADMINISTRATION (MSHA), 

On behalf of: 

DAVID PASULA, WILLIAM KALOZ, 

RALPH PALMER, JAMES COLBERT, 

BRYAN PLUTE, LAWRENCE CARDEN, 

Complainants 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket Nos. PITT 78-458 

PITT 79-36 

PITT 79-35 

Montour No. 10 Mine 

DECISION 

Appearances: Eddie Jenkins, Esq., Robert Cohen, Esq., Office of 

the Solicitor, Department of Labor, for Complainants; 

Kenneth J. Yablonski, Esq., United Mine Workers of 

America, for Complainants; 

Anthony J. Polito, Esq., Rose, Schmidt, Dixon, Hasley, 

Whyte & Hardesty, Pittsburgh, Pennsylvania, for 

Respondent; 

Karl Skrypak, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Respondent. 

Before: Administrative Law Judge Charles C. Moore, Jr. 

These consolidated actions were brought by MSHA on behalf of 

David Fasula and those members of his working crew that were idled on 

two separate occasions. David Pasula alleges discrimination in that 

he was fired and the other workers alleged discrimination in that 

they were deprived of two half-shifts of work and payment because of 

a complaint of a safety violation. Pas~la, the continuous miner 

operator, had been previously reinstated pursuant to an order issued 

by Acting Chief Administrative Law Judge Broderick, but he was not 

actually reinstated as a continuous miner operator. He was paid at 

the rate appropriate for a continuous miner operator, however. 
On May 31, 1978, David Pasula was on a crew working the 12 midnight to 8 a.m. shift. When he got to his continuous miner he found 

the methane monitor on the machine inoperative and so informed a 

mechanic and his section foreman. The mechanic decided that an 

entire module was necessary, and the section foreman telephoned the 

shift foreman to see if such a module was available. 

The shift foreman inquired and learned that the part which the 

mechanic said was necessary would not be available until the next 

morning. The exact sequence of events following is not clear, but, 

the shift foreman was at the face area and did request that David 

Pasula operate the continuous miner without a methane monitor for a 

period of time. David Fasula may have been willing to operate the 

machine for a time, but not as long a time as the shift foreman 

desired (until 8 a.m.). There was testimony that some Federal 

inspectors do not consider it a violation to operate a continuous 

miner without a methane monitor for short periods of time as long as 

the required 20-minute methane checks are made. Regardless of the 

exact communications, Mr. Pasula did not operate the continuous miner 

as requested and as a result, his crew could not produce coal in the 

the 1 West section. The assistant master mechanic, who might have 

been able to repair the machine (I say this because the next day a 

mechanic did repair the machine in about half an hour without replacing the module), was in the 1 Northeast section working on a continuous miner which had been partly buried by a roof fall. 

Mr. Pasula and the other complainants in his crew were sent home 

and paid for 4 hours even though they did not work quite that long. 

It is the contention of these crew members that there was other work 

to do in the mine which they could have been assigned to do, and that 

they were sent home after 4 hours only because Mr. Pasula refused to 

operate the continuous miner without a methane monitor. They thus 

contend that they were deprived of 4 hours of pay on May 31, 1978. 

Subsequent to the crew's midnight departure from the 1 West section, the chief mechanic and other mechanics fixed the other continuous miner in 1 Northeast section by replacing a number of the gears 

and then extracting the miner from beneath the rock fall area. When 

the Pasula crew arrived for their next shift on June 1, 1978, starting 

at midnight, they were assigned to the 1 Northeast section where the 

continuous miner had been under a roof fall during their previous 

shift. During the repair of that continuous miner, new gears had 

been mixed with old gears and as a result, the machine was extra 

noisy because the gears did not mesh properly. It was the testimony 

of all of the knowledgeable people that addressed the subject that 

gear meshing noises of this sort do reduce in volume as the machine 

is operated. Repairs on the miner had been completed on the shift 

previous to Mr. Pasula's and the machine was used in mining for 

several hours during that previous shift. 

2 
The machine was so noisy, however, that the operator (who had a 

hearing loss) shut it off when the shuttle cars were not in position 

to load coal, whereas his usual procedure is to let the machine 

idle while the shuttle cars are not in the area. 

Pasula noted the loudness of the machine but nevertheless, operated it for about an hour and a half before he decided he had had 

enough. He stated that he had a headache, that his ears hurt and he 

was nervous and that when he attempted to complain to the section 

foreman, he found the section foreman asleep in the dinner hole. This 

was later denied by the section foreman. I find it unnecessary to 

determine whether the section foreman was asleep or not because it is 

clear that Mr. Pasula thought he was or he ~ould not have phoned the 

shift foreman directly instead of talking first to the section foreman. No one has suggested an ulterior motive on Mr. Pasula's part 

regarding this direct contact with the shift foreman, and no one has 

suggested a reason why he should invent the story that the section 

foreman was asleep. 

Mr. Pasula told the shift foreman about the noise the machine was 

making, told him about his headache, nervousness and hurting ears and 

requested that a noise level test be made on the machine before he 

operated it further. After that conversation, the shift foreman telephoned the mine manager to inquire as to whether they were required to 

make a noise level test in the circumstances, and he was informed that 

the law did not require such a test. 

Subsequently, the assistant master mechanic, the shift foreman, 

a member of the safety committee, and the section foreman met at an 

intersection near the face where the continuous miner was located. 

At the time, Mr. Pasula and his helper were doing some other work that 

had.been assigned and were not present when one of the mechanics 

started the machine so that the others could listen to it run. Even 

though he had not heard the machine running at the face with all 

motors running, the safety committeeman had already agreed with management that the machine was not too loud to operate before Mr •. Fasula 

and his helper returned to the scene, When Mr. Pasula heard this, he 

became very upset. Harsh words were spoken and Mr. Pasula continued 

to demand that a noise level reading be taken on the machine. Management refused to comply. Mr. Fasula then said he would not operate the 

machine and tbat nobody was going to operate it. 

' There is some question as to whether anybody ever asked the 

helper to run the machine, but it does not matter because he would 

not have run it in any event. He so testified and it is a general 

longstanding mine custom that when one miner will not operate a piece 

of equipment, another one will not. The section was then shut down 

and the miners on that particular crew were taken from the mine. All, 

except Mr. Fasula, were paid for 4 hours of work and he was paid for 

3-1/2 hours, the difference being that he had refused to run the 

machine and was therefore not paid for the last half hour. At one 

3 
point during the discussions, Mr. Pasula said he wanted to call a 

Federal inspector to take a noise level reading. He was told he 

could not use any phone on mine property for that purpose. Before 

leaving the mine, Mr. Pasula did ask for othei. work, but was told 

that with the miner down and, with no production, there would not 

be any other work. 

Mr. Pasula was subsequently fired and he filed a grievance under 

the union contract. This resulted in an arbitration proceeding before 

David L. Beckman, Esq., and his written decision in the matter was 

received in evidence as Consol Exhibit No. 10. A copy of that decision was al so attached as· Exhibit A to Respondent' s answer to the 

complaint. 

As to the weight that should be given to the decision of the 

arbitrator by me, the cases cited in the briefs indicate that it is 

a matter of discretion. In exercising that discretion, according to 

the cases, I should consider the qualifications of the arbitrator and 

the type of hearing that was held. From the information submitted 

during the trial it appears that the arbitrator was a well-qualified 

attorney and th~t the testimony before him was under oath. 

Mr. Beckman, of course, had to rely on the evidence presented to 

him and I have no idea as to what that evidence was. I have noted 

some findings in his opinion that are inconsistent with the evidence 

presentfd to me and with my knowledge of the regulations involved. 

He may have been told otherwise, but the statement on page 13 of the 

opinion to the effect that an inspector has no authority to shut down 

a machine because of a noise violation is incorrect. While several 

of the witnesses indicated their understanding that noise violations 

would not result in closure, there is no question but that if a noise 

violation, like any other violation, is unabated, and if the inspector 

does not consider a further extension of time justified, a withdrawal 

order will be issued. And such orders have been issued. The implication that noise violations are not serious enough to close a mine 

is not correct. Also, it appears that Mr. Beckman's reliance on the 

inspector who tested the noise level of the machine may have been 

misplaced. The machine had been running for approximately 2 hours 

after Mr. Pasula and his crew left the mine by the time the noise 

level test was made by the inspector. The purpose of allowing the 

machine to idle during that time was to let the gears mesh and reduce 

the noise level on the machine. Assqming that the idling of the 

machine had the effect that it was designed to have, i.e., reduce 

the noise level, and despite the inspector's possible-testimony 

before Mr. Beckman and his statement in writing which he presented 

to Respondent, the machine was still too noisy for anyone to legally 

operate for an 8-hour shift. 

The machine in question was producing 93 decibels with only the 

pump motor running and was producing 103 decibels with the pump motor 

4 
and the conveyor running and while mining coal. The limit for an 

8-hour shift is 90 decibels. It would have, therefore, been illeg~l 

to require an operator to sit in this machine and idle the engine for 

an 8-hour shift. While evidence was introduced as to how much time, 

during an 8-hour shift, a mining machine is actually cutting coal, 

tramming, idling, or off, such evidence was inconclusive. This is 

especially true since Consolidation Coal, the proponent of the study, 

was of the erroneous opinion that it was standard practice to shut 

the machine off while awaiting a shuttle car. 

I cannot imagine what prompted the inspector to imply, if not 

state, that a machine producing 93 decibels could not be involved in 

a violation of the standard. As previously stated, it certainly would 

be a violation if one miner .were to idle the machine for 8 hours. 

It would clearly be a violation if any miner operated the machine 

cutting coal at 103 decibels for an hour and a half because that would 

be a violation even i{ the machine only produced 102 decibels. 1/ 

The inspector did not appear before me to explain his evaluation of 

the machine, and in the absence of any such explanation, I will not 

accept his statement that the machine was in compliance with the 

noise standard, b·~ause that compliance obviously depends on how long 

a particular miner \is exposed to either. the 102 or 93 dee ibel levels. 

I therefore agree with the contention in MSHA' s reply brief that 

Consol Exhibit No. 12 does not show that the continuous miner was in 

compliance with the noise standard. 

Arbitrator Beckman's decision, despite differences pointed out 

above, generally agrees with the facts as I have found them here. 

His decision was based on the wording of the union contract, however, 

and not on the language of section 105(c) of the Federal Mine Safety 

and Health Act of 1977. Under the union contract, if a miner thinks 

that his health or safety is in jeopardy (the wording is similar to 

the description of an inuninent danger under the Federal law) he is 

entitled to have a member of the safety committee examine the situation. If management and the safety committee member agree that there 

is no hazard involved, then the miner is supposed to go back to work. 

At least that is the way the contract was interpreted by Mr. Beckman 

and according to Consol's reply brief filed on February 2, 1979, that 

decision has been affirmed. The Federal provision states "No person 

shall discharge or in any manner discriminate against * * * a miner 

* * * because such miner * * * has filed or made a complaint under 

or related to this Act, including a complaint notifying the operator 

or the operator's agent*** of an alleged danger or safety or 

health violation * * *." (Emphasis added. J · 

Arbitrator Beckman concludes that David Pasula was fired because 

of his refusal to operate a continuous miner and because of his past 

):J See 30 CFR 70.510. 

5 
record. That past record is referred to.on page 14 of Mr. Beckman's 

decision and includes four items. The first was for insubordination 

on December 22, 1976, which resulted in a verbal warning. Details 

are not contained in the ·file. The second on January 27, 1977, .concerned a confrontation with a mine pay clerk and a written warning 

was issued to Mr. Pasula. The confrontation involved work that 

Mr. Pasula had done and not been paid for. I think the pay clerk 

should have received the written warning. The third item on 

March 22, 1977, concerned a charge of altering a medical form and 

there was an arbitrator's decision which was introduced in evidence 

as Consol Exhibit No. 3. There are three lines obliterated on page 3 

of the exhibit and two lines obliterated on page 4. So, I must assume 

that whatever was said in these five lines, it was something Consol 

did not care to include in the record. Whatever that material was, I 

do not see how it could rehabilitate that decision in view of the 

evidence that was presented at the hearing in the instant case. The 

evidence that was presented to me indicated that Mr. Fasula had done 

nothing wrong, but I have no idea what evidence was presented before 

Arbitrator Pollock. In any event, the arbitrator was presented with 

the question of whether or not Mr. Fasula altered medical forms. 

Instead of decid~ng that question either on the evidence or if necessary by assigning\the burden of proof, the arbitrator proceeded to 

strike a balance somewhere in between. He found Mr. Pasula somewhat 

guilty, but not altogether guilty and therefore modified the penalty 

imposed by the company. Consol Exhibit No. 3 does not indicate that 

Mr. Pasula was wrong in connection with the medical records event. 

The doctor who failed to fill out the proper forms may have deserved 

a suspension, but not Mr. Fasula. As to the fourth charge mentioned 

by Mr. Beckman, interference with management, which resulted in a 

3-day suspension for Mr. Fasula, the evidence indicates that on that 

occasion there was a labor dispute and that Mr. Fasula and his fellow 

workers complied with the directions of the safety committeeman. But, 

on June 1, 1978, when Mr. Fasula chose to ignore the advice of the 

safety committeeman, he was fired. I find the entire record of 

Mr. Pasula 1 s so-called past misconduct, contrived and unconvincing. 

I therefore, completely disagree with Mr. Beckman's decision in this 

regard. 

It is the position of MSHA and the union, that Consolidation Coal 

Company's actions have shown that whenever a section is shut down 

because of a safety complaint by a miner, then the miners will be 

sent home for the second half of the s~ift, but if it is for some 

other reason, the miners will be given other work for the remainder 

of the shift. I find that no such pattern has been established. If, 

on May 31, 1978, the section had been shut down because the continuous 

miner was inoperative due to a faulty methane monitor, the fact that 

the miners were sent home, rather than being given other work to do, 

would not establish discrimination. -Certainly the fact that they 

were paid for 4 hours of work, but not required to actually stay in 

the mine for that 4-hour period would indicate that there was no 

vindictiveness on the part of management. 

6 
But, the section was not shut down because of the faulty methane· 

monitor. It was shut down because of David Pasula's refusal to run 

the machine without that necessary piece of equipment. Despite his 

equivocation, evasiv.eness and nonresponsiveness, I find that Shift 

Foreman Neal did try to get Mr. Pasul~ to run the machine for the 

remainder of the shift without an operable methane monitor. On 

Mr. Pasula's refusal, the section was closed and the miners were 

sent home. Several mechanics, including the assistant maste~ 

mechanic, were working on a continuous miner which. had been buried 

in another section, ·and I have no doubt that they, or at least the 

assistant master mechanic could have fixed the methane monitor in a 

short period of time. The fact that there were other pieces of equipment in the section with discrepancies is h~t important because if 

it had been important, Mr. Neal would not have asked Mr. Pasula to 

operate.the machine without the methane monitor. Mr. Bigley, the 

assistant master mechanic, said he could not leave the other section 

with the mechanics working on the partially buried continuous mining 

machine, because of the danger in that other section. He was somewhat over-dramatic as though he thought that his presence would 

somehow keep the roof from falling on these other mechanics, but 

if he really thought they were in danger, and if management had 

been interested i~keeping Mr. Pasula's section open, all of the 

mechanics could have come over to the 1 West section, fixed the 

methane monitor, repaired whatever discrepancies existed, and then 

gone back to their half-buried continuous miner. The fact that management chose not to pursue this course of action is a further 

factor indicating that they were punishing Mr. Pasula and his crew 

for his refusal to operate the continuous miner illegally for an 

8-hour period. 

I find that all miners working in the 1 West section on May 31, 

1978, in Mr. Pasula's crew who were idled and unpaid for half of that 

shift and who are also Complainants in these proceedings, are 

entitled to be paid for the second half of the shift. 

As to the incident on June 1, 1978, which resulted in the firing 

of Mr. Pasula, I have already indicated what I think of Mr. Pasula's 

past record of disciplinary actions. Inasmuch as the abusive language used by Mr. Pasula was directed towards Mr. Cushey, a fellow 

miner, and not towards supervisory personnel, that language could not 

reasonably be a part of the justification for his discharge. This 

leaves only Mr. Pasula's insubordinatiop in refusing to operate the 

continuous miner as a possible justification for the action taken by 

the co:.ipany. The company argues that Mr. Pasula' s refusal to allow 

anyone else to operate the continuous miner was a dispositive factor. 

It was apparently when Mr. Cushey, the safety committeemen, suggested 

that Mr. Fisher operate the machine that Mr. Pasula said that the 

machine was down and nobody was going· to operate it. But as stated 

earlier, according to mine custom, Mr. Fisher would not have operated 

7 
the machine in any event. Also, the company seems to be taking 

inconsistent positions regarding Mr. Fa.sula' s aut;hority. On the 

one hand, the company says he shut down the machine and refused to 

allow anybody to operate it by an oral statement, and on the other 

hand, the company is saying that he had no authority to do so. There 

was no evidence that any foreman told the miners that Mr. Pasula 

lacked authority to shut down the machine. On the contrary, their 

actions seemed to concede that he did have that authority. 

It must be remembered, that when Mr. Fasula refused to run the 

continuous miner, it was not a flat refusal. He refused to run it 

until or unless a· noise lev~l test was made, and he demanded that 

such fl test be made. He even informed his superiors that he knew how 

to make the test himself if they would provide the apparatus. And 

while I have indicated earlier that the machine could have well been 

producing enough noise to justify a notice of violation, it does not 

really matter. The Act protects a miner who is disciplined because 

he alleges a violation, whether a violation exists or not. There is 

no doubt in my mind that Mr. Fasula was discharged because he was 

complaining about the noisy machine and demanding that a noise level 

test be made. Management's evidence indicated to me that it does not 

take noise violation~ too seriously. The refusal of management to 

allow Mr. Pasula to use a phone on mine property to call in a Federal 

inspector for the purpose of taking a noise level test adds nothing 

to management's attempt to show a good faith discharge of Mr. Pasula. 

I think management had had enough of Mr. Fasula and his health 

or safety complaints and decided to get rid of him. The other miners 

on the crew just happen to be caught up in the same situation, but 

the'fact remains that they were punished i.e. discriminated against, 

because of Mr. Pasula 1 s complaint. They and Mr. Fasula are thus 

entitled to pay for a full shift on June 1, 1978. This ruling of 

course applies only to miners who are complainants in these proceedings. Mr. Pasula is entitled to remain in his position as a continuous miner operator and is entitled to actually operate the equipment 

rather than merely being paid as a continuous miner operator. 

ORDER 

It is therefore ordered that Consolidation Coal Company pay to 

the complainants herein the difference between what they were actually 

paid for work on May 31, 1978, and June l~ 1978, and the appropriate 

pay for working two entire shifts. It is further ordered that 

Mr. Pasula be actually reinstated in his former job as a continuous 

miner operator. This order is to be complied with within .30 days and the 

8 
previously issued temporary reinstatemen~ order will remain in effect 

until the instant order becomes a final and enforceable order of the 

Federal Mine Safety and Health Review Commission. 

Issued: March 5, 1979 

Distribution: 

~e;?;~P,. Charles C. Moore, Jr. 

Administrative Law Judge 

Eddie Jenkins, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Blvd., Arlington, VA 22203 (Certified Mail) 

Anthony J. Polito, Esq., Rose, Schmidt, Dixon, Hasley, Whyte & 

Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified 

Mail) 

Alan B. Mollohan, Esq., Rose, Schmidt, Dixon, Hasley, Whyte & 

Hardesty, 818 Connecticut Avenue, Nw., Washington, DC 20006 

(Certified Mail) 

Kenneth J. Yablonksi, Esq., 505 Washington Trust Building, 

Washington, PA 15301 (Certified Mail) 

9 

FEOERAl f1;1H~~E 51-"u;;·r-.:TY Al\H) NEALTM REVuEVil COi.JH'VHSSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL CO. 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

March 7, 1979 

DECISION 

Civil Penalty Proceeding 

Docket No. DENV 78-576-P 

02-01195-03003 

Kayenta Mine 

On February 23, 1979, the Mine Safety and Health Administration 

(MSHA), moved the Judge to approve a settlement to which the parties had 

agreed, and dismiss the above-captioned. 

The alleged violations and proposed settlements are as follows: 

Number Date 30 CFR Standard Assessment Settlement 

00387806 A 6/08/78 

6/08/78 

6/08/78 

6/08/78 

6/08/78 

6/08/78 

77. 509 $655.00 $624.00 

00387806 B 77. 516 655.00 624.00 

00387806 c 77.516 655.00 624.00 

00387806 D 77. 516 960.00 768.00 

00387806 E 77. 505 655.00 624.00 

00387806 F 77. 505 655.00 624.00 

00387806 G 6/08/7~8 77. 807 655.00 624.00 

As grounds to support the proposed 20% reduction in each assessment 

MSHA avers: 

"Each of the alleged violations was part of a 107(a) 

[imminent] (sic) danger order. Further investigation 

has revealed that the gravity of each individual alleged 

violation was not as great as initially evaluated. In 

addition, the violations were all issued in connection 

with a temporary power system of small size and there is 

some question as to the application of a number of the cited 

provisions of the National Electrical Code to the temporary 

conditions existing at the time the order was issued." 
As the above settlement is within the bounds of reason, does not 

shock the conscience, and will effectuate the deterrent purpose of civil 

penalties under section llO(a), it is hereby APPROVED. 

The above-captioned is DISMISSED. 

The hearing scheduled for Thursday, May 3, 1979, in Denver, 

Colorado, is hereby VACATED. 

~a!:f:}:tl~ Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 10404 Federal Building, 450 Golden Gate Ave., 

Box 36017, San Francisco, California 94102 (Certified ~fail) 

Peabody Co~l Co., 301 N. Memorial Dr., St. Louis, Mo. 63102 

(Certified ~ail) 

Thomas F. Linn, Attorney, P.O. Box 235, St. Louis, Missouri 63166 

(Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

MAR 8 1979 

MAGMA COPPER COMPANY, Application for Review 

Applicant 

v.. Docket No. DENV 78-533-M 

SECRETARY OF LABOR, San Manuel Mill 

MINE SAFETY AND HEALTH. 

ADMINISTRATION (MSHA), 

and 

UNITED STEELWORKERS OF AMERICA, 

Respondents 

Appearances : 

Before: 

DECISION 

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills, 

Phoenix, Arizona, for Applicant; 

Michael V. Durkin, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Respondent MSHA. 

Administrative Law Judge Lasher 

I. Statement of the Case 

Applicant seeks review of Order No. 376821 dated July 26, 1978, 

which was issued by MSHA inspector Chester A. Pasco. The order was 

issued pursuant to section 104(b) of the Federal Mine Safety and 

Health Act of 1977 1/ citing Applicant with failing to abate a previously issued citation within the time required. The citation, 

which was issued earlier on July 26, 1978, by Inspector Pasco, cited 

Applicant for refusing to pay a representative of the miners for his 

participation in an inspection conducted on July 26, 1978. '!:_/ 

1/ 83 Stat. 742, 30 U.S.C. § 801 et seq •• herein the Act. 

21 Both the citation and order charge-:i violation of section 103(£) 

of the Act which provides: 

"(f) 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 
Tne application for review which initiated this proceeding was 

timely filed and perfected on August 14, 1978. Applicant challenges 

both the order and the citation which latter document indicates that 

there were two MSHA inspectors present at the mine whose intent was 

to form two parties to expedite the inspection and that Applicant 

refused to allow a second representative of miners to accompany the 

second MSHA inspector without suffering a loss in pay. 

A hearing was held in Phoenix, Arizona, on November 13, 1978, 

at which both parties w~re represented by counsel. ~/ 

II. Findings of Fact 

The essential happenings involved in this matter are not in 

substantial dispute. 

Magma Copper Company operates a large copper mine and mill in 

the vicinity of San Manuel, Arizona. MSHA, successor to MESA, 

inspects these operations periodically. The mill, which includes the 

crushing facility, even though it is located near the mine site (Tr. 

56), has a mine iden~ification number separate from that of the mine. 

·The mill consists of\a mine crusher, a mill crusher, a concentrator, 

a molybdenum plant, artd a filter plant. The mill I.D. number covers 

several buildings, some of which are one-quarter mile long and three 

stories tall.!:.,./ 

fn. 2 (continued) 

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

post-'.~spection conferences held at the mine. Where there is no 

autho · .. zed miner representative, the Secretary or his authorized 

re pre·· ·t:in.tative shall consult with a reasonable nmnber of miners concern; .• g matters of health and safety in such mine. Such representativf· vf miners who is also an employee of the operator shall suffer 

no l~ss of pay during the period of his participation in the inspection made under this subsection. 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. 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. Compliance with this subsection shall not be a 

jurisdictional prerequisite to the enforcement of any provision of 

this Act." 

3/ The United Steelworkers of America, having failed to timely 

respond to the prehearing order issued October 17, 1978, was dropped 

as a party at the hearing (Tr. 3-9). 

4/ Prior to March 9, 1978, the responsibility for regulating health 

and safety standards in the metal and nonmetal mining industry 

2 
On July 26, 1978, ins pee tors Chester A. .Pascoe and Thomas 

Aldrette, authorized representatives of the Secretary, arrived 

together at the San Manuel Mill to continue an ongoing regular 

"entire mine" inspection (Tr. 34-35, 55) of the mill which had begun 

the previous week. The inspectors drove to the site in the same car 

and coordinated their planned inspection on the way to the site. 

They had been orally assigned to conduct this inspection by their 

supervisor (Tr. 55). When they arrived at the mill,·a conversation 

with company officials ensued in which the inspectors discussed the 

fact that they were going to continue the inspection and indicated 

that they 11would like a miners' representative to accompany each 

inspector •11 They were advise.d that Applicant ·would furnish two 

miners' representatives, but that only one would suffer no loss of 

of pay (Tr. 37). Miners' representatives did not accompany the 

inspectors the previous week because the unions had not furnished 

Applicant with a list of such representatives (Tr. 37-39, 52). 

Inspectors Pascoe and Aldrette selected Ernest Badia to accompany them on their inspection (Tr. 51, Ct. Exh. 1). The inspectors 

knew that a second representative would have been selected had they 

requested one (Tr. ,47-48), but they were also aware that Applicant's 

position was that so. long as one representative was being paid, no 

other representative would be paid for the same period of participatfon (Tr. 95). 

After the inspectors asked that they be provided two representatives of miners and that both representatives be paid for the time 

spent assisting in the inspections (Tr. 37), Horace Carter, Assistant 

Director of Safety and Industrial Hygiene, read them a portion of 

sectio'n 103(f) of the Act, which stated: 11 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 11 (Tr. 95). Inspector 

Pascoe then issued the citation and, subsequently, the order based on 

the Applicant's refusal to pay the second representative of miners. 

They provide as follows: 

fn. 4 (continued) 

belonged to the Mining Enforcement and Safety Administration (MESA). 

Mine operators were issued mine identification numbers to identify the 

function which was being regulated (Tr. 46, 91). In large operations·, 

MESA assigned separate numbers to parts of the operation which had an 

integrated function or operated in a functionally related manner (Tr. 

47). I conclude that the mill and its related facilities covered by 

the same l.D. number are a mine as defined in section 102(b)(3) of the 

Act. 

3 
Citation #376720: 'A representative of miners was not 

given the opportunity to accompany an authorized representative of the Secretary of Labor on a Safety and Health inspection. The Company allowed a repr'esentative of miners to 

accompany one MSHA inspector on the inspection, but refused 

to allow a representative of miners the opportunity to accompany second [sic] MSHA inspector on the same property (same 

I.D. No.) without suffering loss of pay. The intent was to 

form two (2) parties to expedite the inspection.' 

Order #376821: 'Mr. Horace A. Carter, Assistant 

Director of Safety and Hygiene, stated that the Company's 

interpretation of the Act was that they would provide one 

representative of miners for each inspection; therefore, 

they would not provide a second representative of miners 

on the same property (I.D. No.) without loss of pay.' 

The citation was issued at 11:05 a.m. and it required that 

abatement be completed by 12:30 p.m. The inspectors then went to 

lunch. After they returned, Mr. Carter indicated that his position 

had not changed._ Consequent! y, Inspector Pascoe issued the order 

of withdrawal. \ 

Ernest Badia, the representative of the miners who was provided 

with pay, accompanied Pascoe. However, a representative of the 

miners with pay was not provided to Inspector Aldretti. Pascoe and 

Aldretti examined separate parts of the mine (mill) as planned and 

their inspections took them a distance of 7 miles apart. The inspections took approximately 2 hours. The inspectors saw each other 

again when they subsequently returned to the safety engineer's office 

to do their paper work. There was no connection between the activities of the two inspectors during the full period of their respective 

inspecting (Tr. 37, 40-45, 47). 

Inspector Pascoe did not request that a second representative be 

asked whether he desired to walk around without pay in order to 

justify the order of withdrawal because the second representative 

would have to stand the loss of a day's wages (Tr. 61). 

The regular inspection in quest.ion took approximately 6 days 

(Tr. 62) off and on during the period July 19 - August 1, 1978 (Tr. 

'• 5 7' 58). 

III. Discussion 

The Applicant maintains that while th~ Act grants representatives 

of miners the right to volunteer for walk-around activities, it limits 

the number of representatives who shall be paid for such activities 

to one. Applicant contends that it was not in violation of section 

103(f) of the Act, since it did pay one of the two miners' representatives for participation in the inspection conducted on July 26, 1978. 

4 
MSHA contends that one representative should be paid for accor. 

panying each inspector conducting an inspection, and, that there i1 

no limitation on the number of inspectors (Tr. 99). MSHA's positic 

in this connection is more fully set forth in Interpretative 

Bulletin No. 1, issued April 1, 1978, 43 FR 17546 at 17549: 'ii 

[T]here are also occasions when there is more than one 

inspector at a mine, such as when the mine is so large that 

it is necessary to send several inspectors in order to most 

effectively or efficiently conduct inspection activity. 

Inspectors may also arrive to conduct special "spot inspections" at a mine where a "regular inspection11 of the mine 

is already in progress. There are also situations when 

several inspectors are dispatched to a mine at which there 

are special safety and health problems needing concentrated 

attention. Where more than one inspector is on the mine 

property at the same time, the inspectors frequently go to 

different areas of the mine, and for all practical purposes, 

they could be inspecting different mines. 

Under spch circumstances, if representatives of miners 

are accompanying each inspector, one such representative 

accompanying each inspector is protected against loss of 

pay. If, regardless of the number of inspectors engaged in 

inspection activity at a mine, one and only one representative of miners were protected against loss of pay, an 

anomaly would result in that the decision to send several 

inspectors, rather than a single inspector, to a mine would 

adversely impact the protection against loss of pay, thereby 

eroding the participation right itself. The manner in which 

inspectors were assigned would thus determine the scope of a 

statutory right. 

Insofar as the precise issue in this case is concerned, section 

103( f) of the Act is not vague or ambiguous. It consists of five 

sentences which are examined separately below. 

51 Tnis Interpretative Bulletin, which I find to be inconsistent 

with the governing legislation, insofar as it seeks to construe and 

implement the Act involved,is to be distinguished from legislativetype regulations duly promulgated in compliance with the rulemaking 

provisions of the Administrative Procedure Act. Morton v. Ruiz, 

415 U.S. 199, 39 L.Ed.2d 270, 94 S. Ct. 1055 (1974). --

5 
1. "Subject to regulations issued by the Secretary, a representative of th~ operator and a representative authorized 

by his miners shall be given an opportunity to accompany 

the Secretary or his authorized representative duringthe 

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 the pre- or post1nspection conferences held at the mine. 

This sentence is preliminary and of general application. It 

requires that an authorized miner representative (singular) be given 

the opportunity (a) to accompany the 11 Secretary or his authorized 

representative"--not every given inspector--during the physical 

inspection of a mine, and {b) to participate in any conferences held 

before or after the inspection. 

The phrases 11 the physical inspection" and "such inspection" 

refer to one inspection. The purpose of allowing accompaniment by 

operator and miner representatives is clearly specified as 11 aiding 

the inspection, 11 not aiding the inspector. Furthermore, the inspection referred to must be one "made pursuant to the provisions of 

subsection (a).'\ In my decision in another case of first impression, 

Kentland-Elkhorn \Coal Corporation v. Secretary of Labor, Docket No. 

PIKE 78-399, issued simultaneously herewith, I have-concluded that 

the quoted clause was intended to be restrictive, and that during 

the legislative history of the Act, Congress clearly expressed its 

intent to limit accompaniment with no loss of pay to the regular 

"entire mine 11 inspections described in the third sentence of section 

103(a). 

2. "Where there is no authorized miner representative, the 

Secretary or his authorized miner representative shall 

consult with a reasonable number of miners concerning 

matters of health and sa.fety in such mine. 

This second sentence applies only where there is no authorized 

miner representative (union) at .the mine. In such a special situation, consultation by the Sec~retary, acting through an inspector, 

with a reasonable number of miners is required. 

3. "Such representative of miners 6/ who is also an employee 

of the operator shall suffer no loss of pay during the 

period of his participation in the inspection 7/ made under 

this subsecti.on. 

6/ singular. 

71 Singular. 

6 
This third sentence requires that the miner representative, 

whether appointed by a union, or otherwise selected where there is no 

union, if he is an employee, 8/ shall be paid at his regular rate of 

pay for-.:he period of time he-participates in the inspection. ~/ 

4. "To the extent that the Secretary or authorized representative of the Secretary determines that more than one repsentati ve from each party would further aid the inspection, 

he can permit each party to have an equal number of such 

add.itional representati~." 

This gives the Secretary, acting through an inspector, discretion 

to allow each party more than one representative to accompany him on 

the inspection (singular) provided the number is equal. 

S. "However, only one such representative of miners who is an 

employee of the operator shall-be entitled to suffer no 

loss in pay during the period of such participation under 

the provisions of this subsection." 

This expres~ly limits the pay provision to one miner representative/employee per\ inspection regardless of the number of inspectors 

conducting the ins'pec tion, and regardless of the number of operator's 

and miners' representatives accompanying them. The language is plain 

and admits of no wore than one meaning. The word "However, 11 clearly 

links this provision with the preceding sentence and both should be 

read together. Thus, if the Secretary permits accompaniment by more 

than one representative, only one is entitled to suffer no loss of 

pay. 

Congress could not have expressed the limitation of the 11 pay" 

provi~ion of 103(f) more clearly. This is not some inadvertent ambiguity which has found its way into the statute. It is a stronglyworded clear-cut restriction constituting an integral part of this 

new statutory provision ·first introduced into the mine safety scheme 

by the 1977 Act. While Congress sought to encourage miner participation in regular inspections, it also drew a distinct line as to how 

many mine representative/employees would be paid for their time of 

participation in the inspection. Its plain meaning is that it provides inspection participation rights without loss of pay to one 

miner representative/employee per regular inspection--not per inspector. Contrary to MSHA' s contention, I do not find this reading· to 

result in an absurdity, nor a~ I inclihed to follow MSHA's Interpretative Bulletin where it directly contradicts the Act. I have found 

8/ By inference, a miners 1 representative can be selected who is not 

an employee. 

9/ Since the word 11 inspection11 used here is not qualified by the word 

liphysical" as in the first sentence, I conclude that it includes both 

the physical inspection and the pre- and post-inspection conferences. 

7 
the legislative history to be of little value in deciding this issue. 

In the parts thereof pointed to by the parties as support for their 

positions, the Congressional source being quoted was not directly 

addressing the question with which we are concerned. To draw infer-< 

ences favorable to one party or the other from some word or phrase 

idly dropped in the context of remarks directed to some other issue 

or subject matter is not warranted. Tilis, indeedtis a case for 

applying the canon of construction of the wag who said, when the 

legislative history is doubtful, go to the statute. March v. ·United 

States, 506 F.2d 1306, 1314 (D.C. Cir~, 1974). 

It is clear from the record that on July 26, 1978, the two 

inspectors were conducting but one regular inspection of the mine 

(mill). Applicant, by agreeing to pay one miners' representative 

for his participation therein was in compliance with section 103(f) 

of the Act. I find merit in the application. 

IV. Conclusions of Law 

Where a single regular 11 entire mine" ins pee tion is being conducted pursuai:it to section 103(a) of the 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 areas of the mine. 

ORDER 

All proposed findings of fact and conclusions of law submitted by 

the parties not expressly incorporated in this decision are rejected. 

The citation and order which are the subject of this proceeding 

are vacated. 

:l!t~<l,J /f; ;4·dti//f~ Michael A. Lasher, Jr., Judge 

Distribution: 

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills, 1905 Townhouse Tower, 100 West Clarendon, Phoenix AZ 85013 {Certified 

Mail) 

Michael V. Durkin, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Marco D. Vestich, Assistant Director, Safety and Health Department, United Steelworkers of America, 5 Gateway Center, 

Pittsburgh, PA 15222. ( Certified Mail) 

8 
FED.ERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

MAR 8 l979 

KENTLAND-ELKHORN COAL Application for Review 

CORPORATION, 

Applicant Docket No. PIKE 78-399 

v. 

Feds Creek No. 1 Mine 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

UNITED WORKERS OF AMERICA, 

Respondents 

Appearances : 

Before: 

DECISION 

C. Lynch Christian III, Esq., Jackson, Kelly, Holt 

and O'Farrell, Charleston, West Virginia, for 

Applicant; 

Leo J. McGinn, Esq., Office of the Solicitor, 

Department of Labor, for Respondent. 

Administrative Law Judge Lasher 

I. Stfttement of the Case 

Applicant seeks review of Order No. 063798, dated June 23, 1978, 

which was issued by MSHA inspector Vernon E. Hardin. The order was 

issued pursuant to section 104(b) of the Federal Mine Safety and 

Health Act of 1977 1/ citing Applicant with failing to abate a previously issued citation within the time required. The citation which 

was issued by Inspector Hardin on June 20, 1978, cited Applicant for 

refusing to pay employee Douglas Blackburn, the representative of the 

miners, for his participation in an electrical inspection at Applicant1 s preparation plant on May 23 and May 24, 1978. 2/ 

1) 30 U.S.C. § 801 _:!seq. 

2/ nie citation charged a violation of section 103(£) of the Act 

which provides: 

"(f) Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners 
The Application for Review which initiated this proceeding was 

timely filed on June 28, 1978. Applicant contends that both the 

citation and order, each of which charge violations of section 103(£) 

of the Act, are invalid and seeks to have them vacated. 3/ 

A hearing was held in Princeton, West Virginia, on December 7, 

1978, at which both parties were represented by counsel. 4/ 

Inspector Hardin testified for MSHA and Roger Bartley, Applicant's 

safety director, testified for the Applicant. 

II Discussion and Findings of Fact 

Applicant contends that it was not in violation of section 103(f) 

of the Act, since, on May 23 and 24, 1978, it .did pay one of two 

miners' representatives present for participation in an inspection. 

The facts are not in substantial dispute. According to Inspector 

Hardin, two separate inspections were being conducted on the dates 

fn. 2 (continued) 

shall be given an opportunity to accompany the Secretary or his 

authorized r~presentative 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. Where there is no 

authorized miner representative, the Secretary or his authorized 

representative shall consult with a reasonable number of miners concerning matters of health and safety in such mine. Such representative of miners who is also an employee of the operator shall suffer 

no loss of pay during the period of his participation in the inspection made under this subsection. ·To the extent that the Secretary or 

authorjzed 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. 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. Compliance with this subsection shall not be a 

jurisdictional prerequisite to the ·enforcement of any provision of 

this Act." 

3/ In paragraph 7 of the application, Applicant alleges that on 

May 23 and 24, 1978, two MSHA inspectors were present at the Feds 

Creek No. 1 Mine and preparation plant; that each inspector was 

accompanied on his inspection by a representative of the miners; and 

that one of these representatives suffered no loss of pay as a result 

of his partipation in the inspection. 

4/ The United Mine Workers of America, upon motion of applicant, was 

dropped as a party by my order entered on the record at the hearing 

since the UMWA had not responded to my prehearing order and had made 

no appearance at the hearing. 

2 
in question: the one he was conducting was a specialized electrical 

inspection which was not part of a regular inspection of the mine 

which was being conducted independently by a second MSHA inspector, 

Aaron Hall. The record amply reveals that these inspectors did not 

travel together, did not coordinate their inspections, and were functioning separately on the dates in question. According to Inspector 

Hardin, his electrical inspection was one which is required to be 

conducted once annually by the MSHA manual, whereas the inspection 

conducted by Inspector Hall was one of at least four regular inspections required to be conducted annually by the Secretary of every 

mine in its entirety by section 103(a) of the Act. The report of his 

inspection filed by Inspector Hardin (Court Exh. 1) indicates that it 

was a coal mine safety and health electrical CBA inspection (Tr. 42). 

The electrical inspection was not part of the regular inspection of 

the entire mine conducted by Inspector Hall. The evidence clearly 

indicates·, and I conclude, that these were two separate inspections 

(Tr. 16-18, 35-42, 48-53). 

Inspector Hall was accompanied by Kenneth Smith, a slate picker, 

who was paid for his participation in Inspector Hall 1 s regular "entire 

mine 11 inspection, which would have taken approximately 1 month to 

complete; Respondent admits t·ha t it refused to pay another employee, 

Douglas Blackburn, for his participation in the 2-day electrical 

inspection conducted by Inspector Hardin both at the time the citation was issued and again when the order of withdrawal was issued. 2./ 

Applicant's argument at the hearing that replacing Blackburn and 

Smith with less experienced miners might have an adverse affect on 

safety has been considered. However, it has no direct relevance in 

determining the primary legal issue involved in this proceeding and 

that is whether Applicant was required to pay Blackburn for the time 

he expended in participating in the inspection conducted by Inspector 

Hardin so that Blackburn would usuffer no loss of pay during the 

period of such participation" as required by the Act. Since Inspector 

Hardin's inspection was a separate inspection from Inspector Hall's, 

it would ordinarily be concluded at this point that both the citation 

and order were properly issued and that the relief sought by the 

application should be denied. ~/ 

57 Applicant did pay Blackburn after the order of withdrawal was 

Issued and the order was then terminated by Inspector Hardin at 

8:50 a.m. on June 23, 1978. 

6/ '!his is a case of first impression. I have held in another 

matter, MSHA v. Magma Copper Company, Docket No. DENV 78-533-M, issued 

simultaneously herewith, that the right of a miner representative/ 

employee to participate in an inspection without loss of pay granted 

by section 103(£) of the Act is expressly limited to one representative per inspection--not per inspector. 

3 
Applicant, however, in its brief raised for the first time a 

purely legal issue which I find dispositive of this case. Applicant 

contends that the provisions of section 103(£) of the Act granting 

miner representatives the right to participate in an inspection with 

pay is limited to the regular 11 entire mine 11 inspections conducted 

pursuant to section 103(a) of the Act. 7/ There is no question but. 

that the first sentence of section 103(f) is a general section 

against which the remaining sentences must be read and it does 

expressly limit the types of inspections in which the operator's and 

miners' representatives have a participation right to those 11made 

pursuant to the provisisons of subsection (a). 11 On the face of it, 

this is a restriction--why else include the quoted language at all? 

Moreover, Congress 1 intent to limit walk.around· rights under 103(f) 

is further demonstrated by its elimination of such rights for "any 

inspection" as previously provided in section 103(h) of the 1969 Act. 

What is the extent of this limitation? Applicant places great 

emphasis, and I believe properly so, on the remarks of Congressman 

Perkins, Manager of the Connnittee of Conference for the House of 

Representatives, in his report· to the House. They follow. 

Mr. ·~peaker, before concluding my remarks I would 

like to ad9ress one aspect of the conference report that 

seems to be somewhat ambiguous. 

Section 103(a) of the conference report provides 

that authorized representatives of the Secretary or the 

Secretary of Health, Education, and Welfare shall make 

frequent inspections and investigations for the purpose 

7/ More specifically, in its posthearing brief at page 15, 

Applicant makes the following contention: 

"B. Order No. 063798 was improperly issued because section 

l03(f) of the Act provides miner representatives the right to participate in inspections at no loss of pay only where the inspection is 

conducted pursuant to ·section 103(a) of the Act. Inspector Hardin's 

electrical inspection was not conducted pursuant to section 103(a). 

'lb.e plain language and legislative history of section 103(£) of 

the Act establish that the right to participate in inspections at no 

loss of pay exists only for a limited type of inspection. Specifically, section 103(f) limits walkaround rights with no loss of pay to 

"physical inspection[ s] of any coal pr other tr.ine made pursuant to 

the provisions of subsection (a) 11 of section 103 of the Act. Section 

103(a) provides for at least four annual "inspections of each underground coal or other mine in its entirety .

11 These four annual 

inspections of an entire mine are identified in the MSHA Citation and 

Order Manual (A-1) by the code letters AAA, and are distinguished 

therein from all other types of inspections." 

4 
of (1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes 

of accidents and the causes of diseases and physical 

impairments originating in such mines, (2) gathering 

information with respect to mandatory health or safety 

standards, (3) detennining whether an imminent danger 

exists, and (4) determining whether there is compliance 

with the mandatory health or safety standards or with any 

citation, order, or decision issued under this title or 

other requirements of this act. The Secretary shall 

develop guidelines for additional inspections of mines 

based on criteria including, but not limited to, the 

hazards found in mines subject to this act, and his 

experience under this act and other health and safety 

laws. 

In carrying out the requirements of clauses (3) and 

(4) - concerning imminent dangers or compliance with 

standards - the Secretary shall make inspections of-each 

underground coal or other mine in its entirety at least 

four times a year and of each surface coal or other mine 

in its entirety at least two times a year. 

\ 

In addition to the regular inspections of each mine 

in its entirety as specified in section 103(a), section 

103(g)(l) provides that whenever a representative of a 

miner, or a miner at a mine where there is no such representative, has reasonable grounds to believe that a violation or irmninent danger exists, such representative 'or 

miner shall have a right to obtain an immediate inspection. 

Fμrther, section 103( i) provides for additional inspections 

for any mine which liberates excessive quantities of 

methane or other explosive gases, or where a methane or 

gas ignition has resulted in death or serious inJury, or 

there exists so;ne other especially hazardous condition. 

Section 103(f) provides that a miner's representative 

aut;horized by the operator's miners shall be given an 

opportunity to accompany the inspector during the physical 

inspection and pre- and post-inspection conferences pursuant to the provisions of subsection (a). Since the 

conference report reference is limited to the inspections 

conducted pursuant to section 103(a}, and not to those 

pursuant to section 103(g)(l) or 103(i), the intention of 

the conference committee is to assure that a representative 

of the miners shall -be entitled to accompany the Federal 

inspector, including pre- and post-conferences, at no loss 

of pay only during the four regular inspections of each 

5 
underground mine and two regular inspections of each 

surface mine in its entirety, including pre- and postinspection conferences. 

The original section 103(a) of the Federal Coal Mine 

Health and Safety Act of 1969 provided that--

In carrying out the requirements of clauses (3) and 

(4) of this subsection in each underground mine, such 

representatives shall make inspections of the entire mine 

at least four times a year. 

Section 103(a) of the 1969 Act did not include the 

new provisions--

The Secretary shall develop guidelines for additional 

inspections of mines based on criteria including, but not 

limited to, the hazards found in mines subject to the act, 

and his experience under this act and other health and 

safety laws. 

Section 103(h) of the 1969 act provided generally 

that--

At the commencement of any inspection * * * the 

authorized representative of the miners at tne mine * * * 

shall be given an opportunity to accompany the authorized 

representative of the Secretary on such inspection 

Since the conference report does not refer to any 

inspection, as did section 103(h) of the 1969 act, but, 

rather to an inspection of any mine pursuant to subsection 

(a), it is the intent of the committee to require an 

opportunity to accompany the inspector at no loss of pay 

only for the regular inspections mandated by subsection (a), 

and not for the additional inspections otherwise required 

or permitted by the act. Beyond these requirements r'egarding no loss of pay, a representative authorized by the 

miners shall be entitled to accompany inspectors during 

any other inspection exclusive of the responsibility for 

payment by the operator. 11 Vol. 123, No. 174, Cong. Rec. H 

11,663 (daily ed. October 27, 1977); Legislative History, 

Committee Print (July, 1978), 1!347, 1356-1358. [Emphasis 

supplied.] 

It could, of course, be argued that the Act is not ambiguous and 

that Congressman Perkins 1 remarks should be ignored since reference 

to the legislative history is not warranted. Pursuing this approach, 

the points of argument would seem to be that: 

6 
1. Section 103(a) 8/ does not say "four entire mine inspections 

will be conducted annually." 

2. It does say--expressly in its first sentence--that .the 

Secretary shall make frequent inspections {entire mine or otherwise) 

for various purposes and--expressly in the third sentence-that at 

least four entire mine inspections annually will be made for the--

purpose of determining if imminent danger or violations exist. 

3. The 103(f) limitation to inspections made pursuant to "the 

provisions (plural) of subsection (a)" cannot simply ignore the first 

sentence of 103(a) and confine itself to the third sentence. 

I am unable to adopt the above rationale for the reason that 

Congress, by tacking on to its grant of accompaniment rights the 

phrase 11 * * * during the physical inspection* * * made pursuant to 

* * * subsection (a) 11 must have had something in mind other than 

blanket coverage of all inspections. This phrase becomes a meaningless appendage if--via confinement to the general opening sentence 

8/ Section 103(a) provides: 

"Authorized\representatives of the Secretary or the Secretary of 

Health, Education·, and Welfare shall make frequent inspections and 

investigations in coal or other mines each year for the purpose of 

(1) obtaining, utilizing, and disseminating information relating to 

health and safety conditions, the ~auses of accidents, and the causes 

of diseases and physical impairments originating in such mines, 

(2) gathering information with respect to mandatory health or safety 

standards, (3) determining whether an im.~inent danger exists, and 

(4) determining whether there is compliance with .the mandatory health 

or sa~ety standards or with any citation, order, or decision issued 

uQder this title or othe requirements of this Act. In carrying out 

the requirements of this subsection, no advance notice of an inspection shall be provided to any person, except that in carrying out the 

requirements of clauses (1) and (2) of this subsection, the Secretary 

of Health, Education, and Welfare may give advance notice of inspections. In carrying out the requirements of clauses (3) and (4) of 

this subsection, the Secretary shall make inspections of each underground coal or other mine in its entirety at least four times a 

year, and of each surface coal or other mine in its entirety at least 

two times a year. The Secretary shall develop guidelines for 

additional inspections of mines based on criteria including, but not 

limited to, the hazards found in mines subject to this Act, and his 

experience under this Act and other health and safety· laws. For the 

purpose of making any inspection or investigation under this Act, 

the Secretary, or the Secretary of Health, Education, and Welfare, 

with respect to fulfilling his responsibilities under this Act, or 

any authorized representative of the Secretary or the Secretary of 

Health, Education, and Welfare, shall have a right of entry to, upon, 

or through any coal or other mine .

11 

1 
of section 103(a)--it is construed to cover all inspections. The 

only specific kind of inspection mentioned in 103(a) is the regular 

inspection mandated in the third sentence thereof. As categories of 

inspection go, the regular is the most important kind--of an entire 

mine, conducted at least quarterly, for the purpose of finding violations and seeking out imminent dangers. 

The widely-quoted admonition of Justice Murphy in Harrison v. 

Northern Trust Co., 317 U.S. 476, 87 L.Ed. 407, 65 S. Ct. 361 (1943), 

is particularly applicable here. After first noting that the court 

below had refused to examine the legislative history of section 807 

of the Revenue Act of 1932 on the ground that it was unambiguous, 

Justice Murphy made this observation: 

But words are inexact tools at best, and for that 

reason there is wisely no rule of law forbidding resort 

to explanatory legislative history no matter how clear 

the words .may appear on superficial examination. * * * 

So, accepting the Circuit Court's interpretation of 

Illinois law as to the inciqence of the tax, we think it 

should have considered the legislative history of § 807 

to determin~ in just what sense Congress used the words 1 payable out'- of'. 

Similarly, the purpose to be achieved here is to secure that 

construction of the Act which gives effect to the Congressional purpose. For this reason, considerable weight must be given the statement of Congressman Perkins. At the outset of his remarks, he noted 

that indeed there was an 11 ambiguity. 11 His statement--made on 

behalf of the Committee, not just himself--reveals that the ambiguity 

referr.ed to is precisely that with which we are dealing. In explaining the a~biguity, he pointed his remarks directly to the legal question under discussion, the meaning of the phrase "physical inspection 

* * *made pursuant to the provisions of subsection (a) .

11 This is 

not the situation which occurs so frequently when reference to the 

legislative history is sought--where we are asked to draw inferences 

from some indiscriminately dropped wo·rd or phrase uttered by a 

speaker focused on an issue extraneous to the one under discussion. 

It is a relevant, unequivocal statement by the Conference Committee 

of Congressional intent made at the most significant 'stage of the 

legislative process. It cannot be igL1ored. 9/ . 

9/ See also Cass v. U.S., 417 U.S. 72, 40 L.Ed.2d 668, 94 S. Ct. 

216 7 (1974), where theCourt again declined to 11 ignore the clearly 

relevant 11 legislative history of a problem Act. I am aware that the 

Respondent's Interpretative Bulletin, 43 F.R. 17546, April 25, 1978, 

at page 17547, directly contradicts the Conference Committee's indication of the types of inspections covered. The Bulletin covers all 

inspections mentioned in both the first and third sentences of 

8 
I conclude that the clearly expressed intent of Congress is to 

require accompaniment with no loss of pay only for the so-called 

regular entire mine inspections mandated by subsection 103(a). 

Relying thereon, I also find that the section 103( f) phrase •

1

physical 

inspection* * * made pursuant to the provisions of subsection (a) 

* * *11 11 refers to the inspections expressly referred to in the third 

sentence of section 103(a) of the Act, that is, the regular inspections which the Secretary, in carrying out his responsibility to 

determine either if an imminent danger exists or if there is compliance, must conduct of a mine in its entirety at least four times 

a year. 

In the instant case, a miner representative/employee was permitted accompaniment on the regular inspection of the entire mine conducted by Inspector Hall on May 23 and 24, 1978, without loss of pay. 

I conclude that accompaniment by a miner representative/employee 

without loss of pay on Inspector Hardin's electrical inspection on 

the same 2 days was not required by section 103(£) of the Act. There 

is merit in the application. 

ORDER 

All proposed findings of fact and conclusions of law submitted 

by the parties not expressly incorporated in this decision are 

rejected. 

fn. 9 (continued 

section 103(a), while the Committee intended that only the regular 

ins pee t ions mandated by the third be covered. While an agency interpretation is usually entitled to great weight, in this instance the 

Respondent appears to have leapt the chasm between what the law is 

and what it ought to be. In my decision in MSHA v. Magma Copper 

Company, supra, I noted that the Bulletin is-ro-be distinguished from 

regulations promulgated in compliance with the Administrative 

Procedure Act. In divining the Congressional intent underlying section 103(f) in the specific respect involved here, I believe the only 

objective approach is to accept the clearly relevant interpretative 

aid of the legislative history rather than the construction urged by 

the enforcement agency. Congress has anticipated the question posed 

in this proceeding and answered it. 

9 
The relief sought in. the application herein is GRANTED. Order 

No. 063798 dated June 23, 1978, and Citation No. 063792 dated June 20, 

1978, are VACATED. 

i!k,,,.. ~ // , ///(~,//(. ~\f&'l~£/J._ 

Michael A. Lasher,· Jr., Judge 

Distribution: 

C. Lynch Christian III, Jackson, Kelly, Holt and O'Farrell, P. O. 

Box 553, Charleston, WV 25322 (Certified Mail) 

Leo J. McGinn, Esq., Office of the Solicitor, U. S. Department of 

Labor 

Joyce Hanula, United Mine Workers of America, 900 15th St., ·NW, 

Washington, DC 20005 (Certified Mail) 

\ 

10 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

MP.R 12 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CLINCHFIELD COAL COMPANY, 

Respondent 

Docket No. NORT 78-417-P 

A/O No. 44-00280-02025 

Camp Branch No. 1 Mine 

DECISION 

Appearances: 

Before: 

Inga Watkins, Esq •• Trial Attorney. Office of the 

Solicitor, Department of Labor, for Petitioner; 

Gary W. Callahan, Esq., Attorney for Respondent. 

Chief Administrative Law Judge Broderick 

Statement of the Case 

This proceeding was commenced on September 25, 1978, by a petf~ 

tion for the assessment of a civil penalty filed under section llO(a) 

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

seeking a penalty for an alleged violation of the provisions of 30 CFR 

77.207. 

Following discussions between counsel pursuant to a prehearing 

order, the case was called for hearing on the merits on January 25, 

1979, in Abingdon, Virginia. Clarence A. Goode, a Federal mine 

inspector, testified on behalf of Petitioner; George W. Strong, 

superintendent of the subject mine, testified on behalf of Respondent. Both parties have filed posthearing briefs. All proposed 

findings and conclusions contained in the briefs not adopted herein 

are rejected. 

Regulation 

30 CFR 77 .207 provides: 11 lllumination sufficient to provide 

safe working conditions shall be provided in and on all surface 

structures, paths, walkways, stairways, switch panels, loading and 

dumping sites and working areas." 
Issues 

1. Whether there was any illumination in the areas covered by 

the citation involved herein in addition to the cap lamps of the 

miners anci inspector. 

2. Whether the illumination in the areas covered by the citation 

was sufficient to provide safe working conditions. 

3. If a viola_tion has been established, what is the appropriate 

penalty? 

Findings of Fact 

1. At all times relevant to this proceeding, Respondent, 

Clinchfield Coal Company, was the operator of a coal mine in 

Dickenson County, Virginia, known as the Camp Branch No. 1 Mine. 

2. Respondent is a large operator and any penalty assessed 

herein will not affect its ability to continue in business. 

3. On September 19, 1977, Federal Mine Inspector Goode made an 

inspection of the subject mine, including both underground and surface 

areas. 

4. Inspector Goode's inspection of the surface areas was conducted between 9:30 and 11 p.m. on September 19. The night was 

cloudy. 

5. Inspector Goode had previously inspected the mine on 

September 16, 1977, during daylight hours and did not observe light 

structures in the area of the head house and stacker belt. He 

returned on September 19 at night to determine the illumination in 

the area. 

6. On September 19, 1977, at approximately 11 p.m., Inspector 

Goode issued Notice of Violation No. 4 CAG, charging a violation of 

30 CFR 77.207. 

7. At the time the citation referred to in Finding No. 6 was 

issued, there were no functioning outside lights at or near the head 

house qr the conveyors leading from the head house to the stacker 

transfer point. 

Discussion 

There is sharp and total disagreement between Mr. Goode and 

Mr. Strong as to the existence of functioning lights at the time and 

place referred to in the notice. I am accepting the testimony of 

Mr. Goode, because he was present at the time in question, and 

2 
Mr. Strong was not. Mr. Sam Murphy, mine foreman, who accompanied 

Mr. Goode on his inspection, was not called as a witness by Respondent. 

Mr. Goode 1 s'testimony is cooroborated by the notes which he made at 

the time of his inspection. Mr. Goode is an experienced mine inspector. There is no adequate reason shown in this record to conclude 

that he was totally mistaken or was fabricating as to the condition 

he stated that he observed. 

8. Because of the absence of functioning lights in the areas 

described in Finding No. 7, illumination sufficient to provide safe 

working conditions was not provided in those areas. 

Discussion 

The only illumination in the areas in question was that provided 

by the cap lamps of the miners and the inspector. The area in question had supplies, railroad tracks, rocks and coal spillage which 

constituted stumbling hazards. There were moving conveyors and 

moving parts at the transfer point and the stacker belt which could 

be hazardous to those working in and around them, if insufficiently 

illuminated. The cap lamps did not provide sufficient illumination 

to obviate these~azards since the cap lamp provides only a directed 

beam of light and \does not provide diffuse illumination to allow a 

person to see to the periphery of his vision. I reject the testimony 

of Mr. Strong that "the cap light provides adequate illumination for 

a man working along one of these conveyors" (Tr. 81). 

9. At the time the notice of violation was issued, there was . , one miner working in the area in question. However, the area was 

traveled by other miners to pick up supplies and to do maintenance 

and cleanup work along the belt. 

10. The condition described in Finding No. 8 was moderately 

serious. 

11. Respondent's history of previous violations does not include 

any violations of 30 CFR 77.207. Any penalty assessed herein will 

not be increased because of a history of previous violations. 

12. The parties stipulated that Respondent demonstrated good 

faith in attempting to effect rapid compliance after the notice was 

issued. 

13. The absence of illumination 'in the areas in question was 

discussed with Respondent's officials prior to the date the notice 

was issued. Respondent knew or should have known of the existence 

of the condition described in Finding No. 8. Respondent was 

negligent. 

3 
Conclusions of Law 

1. Respondent was subject to the provisions of the Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. § 801 et seq., as of 

September 19, 1977. 

2. The undersigned Administrative Law Judge has jurisdiction 

over the parties and the subject matter of this proceeding. 

3. The condition described in Finding No. 8 constituted a violation of the mandatory safety standard contained in 30 CFR 77.207. 

4. A violation of the safety standard in 30 CFR 77.207 can be 

established without reference to specific illumination measurements 

such as footcandles of light. 

Penaltv 

Considering the criteria in section 109(a) of the 1969 Act, I 

conclude that a penalty of $150 is appropriate for the violation. 

Therefore,\ it is ORDERED that Respondent shall pay a civil 

penalty in the ~'mount of $150 for the violation on September 19, 1977, 

of 30 CFR 77.207. The penalty shall be paid within 30 days of the 

date of this decision. 

Ch~-C-S A Li~&+i:~d James A. Broderick 

Chief Administrative Law Judge 

Distribution: 

Inga A. Watkins, Esq., Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

VA 22203 

Gary w. Callahan, Esq., Attorney for Clinchfield Coal Company, 

Lebanon, VA 24266 (Certified Mail) 

4 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

March 14, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HELVETIA COAL COMPANY, 

Respondent 

KEYSTONE COAL MINING CORP., 

Respondent 

DECISION 

Civil Penalty Proceedings 

Docket No. PITT 79-12-P 

A/O No. 36-00917-03001 

Lucerne No. 6 Mine 

Docket No. PITT 79-5-P 

A/O No. 36-05038-03001 

Margaret No. 11 Mine 

The above-captioned cases are petitions for the assessment of 

civil penalties. Each petition is for the assessment of an alleged 

violation of 30 CFR 50.20. 

The parties have filed Joint Stipulations of Fact. From the 

stipulations it appears that in PITT 79-5-P an assistant mine foreman 

slipped and fell and fractured his arm while chipping ice on a slope 

outside the mine and that in PITT 79-12-P an assistant mine foreman 

while building a brattice wall, picked up a concrete block, slipped 

and injured his back. 

The alleged violations are due to the operator's failure to fill 

in lines 5 thru 12 of Form 7000-1 with respect to the foregoing 

occurrences. Lines 5 thru 12 of the form deal with information regarding accidents. The operator contends that since these occurrences 

were not acci.dents under the regulations it did not have to complete 

these lines. The Solicitor argues that the receipt of such information 

is necessary for MSHA to properly discharge its responsibilities. 
Part 50 of the regulations sets forth inter alia the reporting 

requirements for accidents, occupational injuries and occupational 

illnesses. Section 50.2 sets forth a list of definitions for terms 

"as used in this Part" including inter alia: 

* * * 

(e) "Occupational injury" means any injury to a 

miner which occurs at a mine for which medical treatment 

is administered, or which results in death or loss of 

consciousness, inability to perform all job duties on 

any day after an injury, temporary assignment to other 

duties, or transfer to another job. 

* * * 

(h) "Accident" means, 

(1) A death of an individual at a mine; 

(~) An injury .to an individual at a mine which 

has a r~asonable potential to cause death; 

(3) An entrapment of an individual for more 

than thirty minutes; 

(4) An unplanned inundation of a mine by a 

liquid or gas; 

(5) An unplanned ignition or explosion of 

gas or dust; 

(6) An unplanned mine fire not extinguished 

within 30 minutes of discovery; 

(7) An unplanned ignition or explosion of a 

blasting agent or an explosive; 

(8) An unplanned roof fall at or above the 

anchorage zone in active workings where roof bolts 

are in use; or an unplanned roof or rib fall in 

active workings that impairs.ventilation or impedes 

passage; 

(9) A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining 

activity for more than one hour; 

2 
(10) An unstable condition at an impoundment, 

refuse pile, or culm bank which requires emergency 

action in order to prevent failure, or which causes 

individuals to evacuate an area; or, failure of an 

impoundment, refuse pile, or culm bank; 

(11) Damage to hoisting equipment in a shaft 

or slope which endangers an individual or which 

interferes with use of the equipment for more than 

thirty minutes; 

(12) An event at a mine which causes death or 

bodily injury to an individual not at the mine at 

the time the event occurs. 

* * * 

In his brief the Solicitor admits that what happened in these 

cases did not constitute an "accident" within the meaning of the 

quoted definition. Moreover, on Form 7000-1 questions 5 thru 11 

are under a heading entitled "Accident information." 

It is clear that the term "accident" is a word of art which has 

a specific meaning and which by the express terms of section 50.2 

applies to all of Part 50. Accordingly, the Solicitor's admission 

that these cases do not involve "accidents" as defined in section 

50.2(h) is dispositive. Since no "accidents 11 were involved, the 

reporting requirements in section 50.20 for "accidents 11 do not apply. 

I have carefully considered the Solicitor's argument that the 

definition of "accident" is not for the purpose of completing the 

forms but for the purpose of identifying what occurrences must be 

promptly reported to MSHA for possible investigation. I cannot 

accept this interpretation because it is contrary to the. terms of the 

regulations which as already noted, expressly make the definitions 

applicable to Part 50 in its entirety. I also have reviewed the 

Solicitor's representation that it is necessary for MSHA to receive 

the information in question. If this is so, it would be a simple 

matter to amend the regulations so that MSHA can obtain this data. 

In light of the foregoing, I conclude that no violations 

existed and that therefore no penal~ies can be assessed in these 

cases. 

3 
ORDER 

It is hereby ORDERED-that the petitions for assessment of 

civil penalties filed herein be DISMISSED. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Issued: March 14, 1979 

Distribution: 

Joseph M. Walsh, Esq., Office of the Solicitor, MSHA, 

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

Arlington, VA 22203 

Harry H. Glasspiegel, Esq., Freedman, Levy, Kroll & Simonds, 

1730 K Street, N.~., Washington, DC 20006 (Certified Mail) \ 

4 
. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLll\IGTON, VIRGINIA 22203 

March is. 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C F & I STEEL CORPORATION, 

Respondent 

Docket No. DENV 77-79-P 

A/O No. 05-02820-02004 

Maxwell Mine 

DECISION 

Appearances: 

Before: 

Leo J. McGinn, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

Ric~~rd L. Fanyo, Esq., Welborn, Dufford, Cook 

& Brown, Denver, Colorado, for Respondent. 

Judge Moore 

On August 17, 1977, the Mine Safety and Health Administration 

filed a petition for assessment of a civil penalty in accordance with 

section 109(a)(l) of the Federal Coal Mine Health and Safety Act of 

1969, 30 U.S.C. § 818(a). The above-stated petition was based on 

Notice of Violation No. 1 DLJ issued in April 21, 1977, alleging a 

violation of 30 CFR 75.316. · '· 

The 104(b) Notice No. 1 DLJ states: "The ventilation, methane 

and dust control plan was not being complied with. No. 1 unit turn 

out, left, where coal was being cut, mined and loaded, the end of 

the vent tube was 30 feet from the working face. 

30 CFR 75.316 states: 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions 

and the mining system of the coal mine and approved by the 

Secretary shall be. adopted by the operator and set out in 

printed form on or before June 28, 1970. The plan shall 

show the type and location of mechanical ventilation 

t''· ,.. 
equipment installed and operated in the mine, such 

additional or improved equipment as the Secretary may 

require, the quantity and velocity of air reaching each 

working face, and such other information as the Secretary 

may require. Such plan shall be reviewed by the operator 

and the Secretary at least every 6 months. 

!he respondent filed an answer to the petition on September 19, 

1977, denying the alleged violation. A hearing on the merits was held 

in Pueblo, Colorado, on September 12, 1978. The Government introduced 

one witness, Donald Jordan, a Federal coal mine inspector and four 

exhibits. The respondent introduced two witnesses, Paul Montoya, an 

assistant mine foreman for C F & I Steel Corporation at the Maxwell 

Mine, and James Robert Morris, a mine superintendent for CF & I Steel 

Corporation. Respondent also introduced two exhibits, C F & I Exhibit 

Nos. 1 and 3 which are sketches of the relevant area of the Maxwell 

Mine cited in Notice No. 1 DLJ. 

Petitioner and respondent presented two quite distinct depictions 

of the shape of the cut and the location of the blower tubing in the 

relevant area of the Maxwell Mine. The petitioner contends that the 

relevant cut was, 30 feet in length' 18 feet wide) and that the mouth 

of the blower tubing was situated at the start of the cut approximately 30 feet from the face. Petitioner argues that respondent 

thus violated the ventilation plan which requires the blower tubing 

to be within 10 feet of the face (Tr. 7, 9). 

The respondent, on the other hand, contends that the relevant cut 

was made at an angle and that while the lefthand side of the cut may 

have been 30 feet in length, the depth of the cut was only 10 feet. 

Respondent argues that the ventilation control plan (Govt. Exh. 2) 

only requires that 3,000 cfm of air be delivered within 10 feet of 

the point of deepest penetration rather than requiring the mouth of 

the blower tubing to be situated within 10 feet of the working face. 

The relevant section of page 2 of the ventilation plan reads: 

Ventilation and Dust Control 

A minimum of 3,000 cfm of air will be delivered tc· 

within 10 ~eet of each face where coal is being cut, mined, 

or loaded. The device used will be flame-resistant 1 ine 

brattice or 18 or 24 inch flame-proof tubing and auxiliary 

ventilation fans. Where exhaust ventilation of the face is 

used the minimum mean entry velocity for dust and methane 

control will be determined after operation begins. 

Respondent's Exhibit Nos. 1 and 3 are diagrams depicting the 

area of the alleged violation as respondent contends it to be. 

Government Exhibit No. 3 is a diagram of the cut and ventilation 

2 
tubing as the Government contends it existed. Ndne of the three 

diagrams are drawn-to-scale and that creates a problem. Because where 

angles are involved, nonscale drawings can be extremely deceptive. 

Two inspectors measured the lefthand edge of the ~ut by tying a weight 

to their measuring tape and throwing it into the cut. The respondent's foreman, Mr. Montoya, did not deny that th~ left-hand edge of 

the cut was in fact 30 feet long, and I will accept the measurement 

as a fact. If I also accept Mr. Montoya's estimate that the deepest 

penetration of the lefthand side of the cut was only 10 feet from the 

crosscut containing the ventilation tubing*/ then a.scale drawing 

would show an entirely different picture than that shown in Respondent's Exhibit Nos. 1 and 3. A scale drawing would approximate a 

right triangle with an altitude of 10 feet, a hypotenuse of 30 feet, 

and a base slightly in excess of 28 feet. The angle where the new 

cut first began would only be between 19 and 20 degrees. The new 

entry being started, would have a width in excess of 28 feet, whereas 

most entries and crosscuts in this mine were between 18 and 20 feet. 

I might accept the fact that the inspectors in measuring the 

lefthand cut, which they thought to be perpendicular to the crosscut, 

were in error as to the angle by 10 or 20 degrees, but an error of 

70 degrees is completely unreasonable. I reject Mr. Montoya's drawings and accept Government Exhibit No. 3, even though it is also not 

drawn-to-scale. I would 1 ike to point out, however, even if I 

accepted respondent's version as correct, there would still be a violation of the ventilation plan because that plan requires that line 

curtains or tubing "shall be maintained to within 10 feet from the 

area of deepest penetration to which any portion of the face has been 

advanced." (See page 8 of Govt. Exh. 2). Obviously, in referring 

to "tubing" the plan means the intake end of the tubing because it 

would do no good to have a central section of the tubing run past or 

within 10 feet of a face. And, according to Mr. Montoya's description of the scene, the intake end of the tubing was in the face of 

the .crosscut and 30 feet from the deepest penetration of the entry 

that was to be driven. · 

I find that a violation occurred, that respondent was negligent, 

that a moderate degree of gravity was involved and that there was good 

faith abatement. The history of prior violations is substantial. 

While evidence as to the actual size of the company or the mine was 

not produced, the ventilation plan does show that 160 miners were 

employed in respondent's Maxwell Mine, It is not a small mine and 

in the absence of evidence to the contrary, I will assume that any 

penalty assessed ·will not affect its ability to continue in business. 

I find a civil penalty of $800 to be appropriate. 

*f The terminology may be somewhat confusing because the crosscut 

had been driven first and the ventilation tube placed therein and the 

cut that was being made in the area of the violation was supposed to 

be the beginning of an entry. 

3 
ORDER 

It is hereby ORDERED that respondent pay to MSHA a civil penalty 

in the amount of $800 within 30 days of the entry of this decision. 

Issued: March 15, 1979 

Distribution: 

Charles 

~t??l1~1,. C. Moore, Jr. 

Administrative Law Judge 

Leo J. McGinn, Esq., MSHA, Office of the Solicit.or, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Richard L. Fanyo, Esq., Welborn, Dufford, Cook& Brown, 

1100 United Bank C.enter, Denver, CO 80290 (Certified Mail) 

Administrat.or for Coal Mine Safety and Heal th 

\ 

Standard Distribution 

4 
FEDERAL r.filNE SAFETY AND HEALTN RfVIE\V CCl\'HVUSSION 

OfflCE OF ADMiNISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON.VIRGINIA 22203 

CLIMAX MOLYBDENUM COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Applications for Review 

Docket No. DENV 79-159-M 

Citation No. 333329 

Climax Mine 

On February 12, 1979~ the Mine Safety and Health Administration 

(MSHA), by and through its attorney, moved to dismiss the above-captioned. 

~n February 26, 1979, Applicant filed a statement in opposition to the 

motion. 

!he motion a'l,\ers that the citation was fully abated and the citation 

had been terminated on December 27, 1978. Applicant's statement does not 

deny this factual allegation, and asserts that there is no relevant 

distinction between abated and unabated citations. 

As Respondent's factual assertion has not been rebutted, it will be 

taken as established. I have previously ruled that .an abated citation 

can not be reviewed through an Application for Review, ~· Sully Miller 

Construction Co., DENV 78-454-M et. al. (November 2, 1978).1/ Stare Decisis 

dictates the disposition which must be made of this case. -

WHEREFORE the above-captioned is DISMISSED. 

1./ a copy is appended hereto. 

·f A -.._ V /f 7 ---\'1;· /,' ' <' / ' ~ /i ' ,.. ,._./ /J' /-' f(.ux'·· ' ,, rj/. ...... ~ • .,., ,t..l:.t . 14·· ,; I ~v.:..,,_.,, ,:....,~ .... ~ • . .-·-

Malcolm P. Littlefield /~ Administrative Law Judge 
Distribution: 

William Schoeberlein, Esq., and Charles W. Newsom; Esq., Dawson, 

Nagel, Sherman & Howard, 2900 First of Denver Plaza, 633 Seventeeth 

Street, Denver, CO. 80202 (Certified Mail) 

Mr. Edward L. Farley, President, Oil Chemical and Atomic Workers 

International Enion, Local No. 2-24410, P.O. Box 949, Leadville, 

CO. 80461 (Certified Mail) 

Mr. Edward Matheson, Chairman, International Brotherhood of Electrical 

Workers, Local Union No. 1823, P.O. Box 102, Minturn, CO. 81645 

(Certified Mail) 

Joseph M. Walsh, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Boulevard, Arlington, Va. 22203 
FEDEl1AL l\.11NE SAFETY /\NO MEfi l TH R EVIEVt! COMMISSiON 

OFFICE Of AOMINl5THATIVt: l.\W JUDGES 

4015 W'LSON 130UlEVARD 

ARLINGTON, Vlf{G IUIA 22203 

November 2, 1978 

SULLY MILLER CONSTRUCTION CO., 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

'ADMINISTRATION (MSllA) f 

Re~pondent 

. . 

. . 

Applications for Review 

Docket F.os. DENV 78-454-M 

78-455-H 

78-456-M 

78-457-M 

Upland Plant No. 69 

DECISION 

The above-captioned Applications for Review were filed pursuant 

to section 105 of·the Fed~ral Mine Safety and Health Act of 1977, 

P.L. 95-164, 30 U.S.C. § 801 et seq. (hereinafter referred to as the 

1977 Act). . - ---

Subsection lOS(a) provides in relevant part: 

If, after an inspection or investigation, the Secretary issues a citation or order under section 104, he 

shall, within a reasonable time after the termination of 

such inspection or investigation) notify the operator by 

certified mail of the civil penalty proposed to be asse~sed 

~nder section llO(a) for the violation cited and that the 

operator has 30 days within which to notify the Secretary 

.that he wishes to contest the citation or proposed assessment of penalty. * * * If, within 30 days from the receipt 

of the notification is.sued by the Secretary, the operator 

fails to notify the Secretary that he intends to contest 

the citation or the proposed assessment of penalty, and no 

notice is filed by any miner or representative of min.ers 

under subt!cction (d) of this section within such time, the 

citation and the proposed assessment of penalty shall be 

deemed a final order of the Commission * * *· 

Subsection lv5(d) provides in relevant part: 

If, within 30 days of receipt thereof, an operator of 

a coal or other mine notifies the Secretary that he int"ends 

to contest the issuance or modification of an order issued 

under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection.(a) 
or (b) of this section, or the reasonableness of the length 

of abatement time fixed in a citation or modification 

thereof issued under section 104, *-* * the Secretary shall 

immediately advise the Commission of such notification, and· 

the Commission shall afford an opportunity for a hearing 

* * *· 

On the surface, the above-cited statutory provisions would 

appear to support the full review of citations in a section 105 

Application for Review. A similarly br0ad construction of the 

predecessor statute, the Federal Coal Hine Health and Safety Act 

of 1969, P.L. 91-173, 30 U.S.C, § 815, provided by a Board of Mine 

Operations Appeals' opinion, Freeman Coal Hining Corp., l IBMA 1 

(1970), was overruled by UXWA v. Cecil D. Andrus, Seci~tary of the 

Interior, F.2d ,--U:S. Court of Appeals, D.C. Circuit, 

No. 76-1208, May 9, 197$. · 

The legislative history of section 105 in the. 1977 Act supports 

the conclusion that the present review provision is a cognate of the 

1969 Act review provision. (See Conference Report on s. 717, 

95th Cong., 1st \'{)ess.) As UHWA, supra, is controlling as to the 

scope of available review under the 1969 Act and places a limitation 

thereon, it follows that the 1977 Act is similarly limited. 

A full review of the facts incident to an alleged violation is 

available upon the filing of a civil-penalty petition under section 

lOS(d). The mandatory language of the penalty provision, section 

llO(a), 1/ means that such a petition must be filed unless the cita-

·tfon is invalidated by HSU.A. Therefore, ultimately, the opc-...:ator 

\..i.1.l pe heard fully. The expense of duplicate full revii;;w of cita-

;ons would be in derrogation of the prime purpose of the.'-)ct.; · 

riamely, protection of the miner. Jj 

I hold that the operator's interest in a section 105 review is 

limited to the reasonableness of the length of abatement time fixed 

in a citation or modification ther.eof issued under section lOl+. 

·. 

1./ Section llO(a). 11The operator of a coal or other mine in whici1 

a violation occ·urs 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 th.an· $10,000 

for each such violation. Each occurrence of a violati,on of a mandatory health or safety standard may constitute a separate offcnse. 11 

2/ Section 2. Congress declares that --

- 11 (a) the first priority and concern of all iri the coal or other 

mining industry must be the health and safety of its most precious 

resource--thc miner; * * *·" 

2 
It is hereby ORDERED that: the Secretary's motion is GRANTED 

and the Applieations for Review are DISMISSED. 

Distribution: 

Rutan & Tucker 1 Attorneys at Law. Wells Fargo Bank Building 1 

401 Civic Center Drive West, Post Office box 1976, Santa Ana, 

California 1 92702 (Attn: Michael D. Rubin, Esq.) (Certified 

Mail) 

Robert A. Cohen, Trial Attorney, Office of the Solicitor, 

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

222.03 

Robert Rojestki, 9J0-2lst. Avenue West, Virginia, Minnesota 

55792 (Certified Mail) 

}ta.rsh.a.11 P. Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3247 Federal Building, 300 North 

Los Angeles Street, Los Angeles, California 90013 

3 

rEOERAL MINE SAFETY AND HEALTH REVIEV.f COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH: 

ADMINISTRATIO~ (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

March 16, 1979 

Application for Review of 

Discrimination 

ON BEHALF OF DONALD BROOKS, 

·complainant 

Docket No. HOPE 79-76 

v. 

SEWELL COAL COMPANY, 

No. 1 Mine 

Respondent 

ORDER FINDING DEFAULT AND 

GRANTING RELIEF 

On October 26, 1978, the Secretary filed a complaint on behalf of 

Donald Brooks, inwhich it is alleged that Respondent refused to pay 

Mr. Brooks for the time he accompanied a Federal inspector during an 

inspection of the subject mine. The complaint asked that the Commission 

find that Mr. Brooks had been discriminated against by Respondent for 

engaging in actions protected under section 105(c) of the Federal Mine 

Safety and Health ACt of 1977; that the Commission order Reespondent to 

pay full back pay and employment benefits for the 6-hour period involved 

and that Mr. Brooks' employment record be cleared of any unfavorable 

references resulting from said .discrimination. 

On February 13, 1979, Complainant filed a "Motion to Dismiss" 

because Respondent had not replied to the complaint. On February 27, 

1979, I issued an order to show cause why Respondent should not be held 

in default and the relief requested in the complaint granted. 

Respondent did not answer the order to show cause within the requisite time specified. On March 12, 1979, Respondent filed a response to 

the order which states that "counsel for Sewell Coal Company has no 

record of the £iling of the complaint but has contacted the Commission 

Docket office and will file an answer as soon as one is received· at this 

office." This response does not adequately show cause for Respondent's 

failure to answer. Respondent therefore is in DEFAULT. 

Therefore, IT IS ORDERED that the Complainant's motion is GRANTED 

and Respondent is found by reason of its default to have discriminated 

against Mr. Brooks. 
IT IS FURTHER ORDERED that Respondent pay Mr. Brooks full back pay and 

employment benefits for the 6-hour period involved on May 9, 1978. 

Respondent IS FURTHER ORDERED to remove any unfavorable references 

resulting from the said discrimination from Mr. Brooks' employment record. 

Distribution: 

By certified mail. 

// /" I ,/ -~/ CJ-·f/}V! .. 5 ,,,,<f//J VlJ {]£-1/7(!V\...__ 

"'/ James A. Broderick 

Chief Administrative Law Judge 

Mr. Donald Brooks, Craigsville, WV 26205 

Mr. Ralph Dado, Vice President for Operations, Sewell Coal Company, 

Nettie, WV 26681 

R. M. Neville, Esq., Secretary and Corporate Counsel, Pittston Company, 

1 Pickwick Plaza, Gr~enwich, CT 06830 

Thomas P. Piliero, Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 

Gary W. Callahan, Attorney for Sewell Coal Company, Lebanon, VA 24266 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22~03 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MS~A), 

Petitioner 

v. 

SHAMROCK COAL COMPANY, 

Respondent 

MAR 2 l 1979 

Civil Penalty Proceeding 

Docket No. BARB 78-595-P 

(A/O No. 15-02502-02022) 

No. 18 Mine 

DECISION 

Appearances: John H. O'Donnell, Attorney, Office of the Solicitor, 

Department of Labor, for Petitioner; 

Neville Smith, Attorney, Manchester, Kentucky, for 

Respondent. 

Before: Judge Littlefield 

Introduction 

This is a proceeding for assessment of civil penalt!es against 

the Respondent and is governed by section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9, 

1977), and section 109(a)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969). 

Section llO(a) provides as follows: 

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. 

Section 109(a)(l) provides as fo!lows: 

The operator of a coal mine in which a violation occurs 

of a mandatory health or safety standard or who violates any 

other provision of this Act, except the provisions of 

title 4, shall be assessed a ci_vil penalty by the Secretary 
under paragraph (3) of this subsection 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. In determining 

the amount of the penalty, the Secretary 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 operator 'charged in attempting to achieve 

rapid compliance after notification of a violation. 

Petition 

On July 31, 1978, the Mine Safety and Health Administration 

(MSHA), 1/ through its attorney, filed a petition for assessment of 

civil penalties charging 16. alleged violations of the Act. 

Answer 

On August 2?, 1978, Respondent filed a detailed response to the 

allegations and requested a hearing thereon. 

Tribunal 

A hearing was held in Knoxville, Tennessee, on February 14, 1979. 

Both MSHA an8' Shamrock Coal Company were repr~sented by counsel (Tr. 

4). 

Evidence 

The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues 

on the part of counsel for both parties. 

The Judge, after hearing all evidence, studying the record, 

reviewing the exhibits, giving sympathetic regard to mitigating circumstances, and fully considering the criteria shown in section 

109(a)(l) of the Act, made findings of fact, conclusions of law 

-and issued an ORDER on the record, rendering his decision from the 

bench. Sixteen violations were found as originally charged. 

l/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA). 

2 
Findings of Fact and Conclusions of Law 

The findings of fact, conclusions of law, and ORDER made on the 

record from the bench are hereby incorporated herein by reference and 

are AFFIRMED (Tr. 21-26). 

Civil Penalties Assessed 

Notice No. Date Section 30 CFR Penalty 

7-0115 08/24/77 75.316 $ 55 

7-0119 08/24/77 75.1101-1 45 

7-0121 08/24/77 75.515 45 

7-0122 08/24/77 75.1202 50 

7-0133 11/01/77 75.316 55 

7-8001 12/07/77 75 .1103 45 

7-8002 12/07 /77 75 .1107 50 

7-8003 12/07 /77 75 .1107 50 

7-8004 12/07/77 75.1710 55 

7-8005 11/21/77 75.1710 55 

7-8006 11/21/77 75.1710 55 

7-8007 11/21/77 75.1710 55 

7-8008 11/21/77 75.1107-1 50 

7-8009 12/27 /77 75 .400 45 

7-8010 12/27/77 75.316 45 

7-8011 12/27/77 75.1722(a) 45 

Total $800 

Disposition 

The Judge was notified by letter from the Office of the Solicitor, 

U.S. Department of Labor, that the Respondent had submitted payment 

of $800, as ordered for the 16 violations found by the Judge in his 

BENCH decision. WHEREFORE the above-captioned is CLOSED. 

Distribution: 

71?~7~ Malcolm P. Littlefield f' 

Administrative Law Judge 

John H. O'Donnell, Trial Attorney., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919 

(Certified Mail) 

Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962 

(Certified Mail) 

3 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

MAR 2 1 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (NSHA), 

Petitioner 

v. 

SHAMROCK COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 78-495-P 

(A/O No. 02502-02021) 

No. 18 Mine 

DECISION 

Appearances: John H. O'Donnell, Attorney, Office of the Solicitor, 

Department of Labor, for Petitioner; 

Neville Smith, Attorney, Manchester, Kentucky, for 

Respondent. 

Before: Judge Littlefield 

Jntroduction 

This is a proceeding for assessment of civil penalties against 

the Respondent and is governed by section llO(a) of the Federal.Mine 

Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9, 

1977), and section 109(a)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969). 

Section llO(a) provides as follows: 

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. 

Section 109(a)(l) provides as follows: 

The operator of a coal mine in which a violation occurs 

of a mandatory health or safety standard or who violates any 

other provision of this Act, except the provisions of 

title 4, shall be assessed a civil_ penalty by the Secretary 
undet.patagraph (3) of this subsection 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. In determining 

the amount. of the pe·nalty, the Secretary shall consider the. 

operator's history oi 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 operator charged in attempting to achieve 

rapid compliance after notification of a violation. 

Petition 

On June·23, 1978, the Mine Safety and Health Administration 

(MSHA), 1/ through its attorney, filed a petition for assessment of 

civil pell"alties charging five alleged violations of the Act. 

Answer 

On July 2J\ 1978, Respondent filed a detailed response to the 

allegations and requested a hearing thereon. 

Tribunal 

A hearing was held in Knoxville, Tennessee, on February 14, 1979. 

Both MSHA and Shamrock Coal Company were represented by counsel (Tr. 

4-5). 

Evidence 

The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues 

on the part of counsel for both parties. 

The Judge, after hearing all evidence, studying the record, 

reviewing the exhibits, giving sympathetic regard to mitigating circum· 

stances, and fully considering the criteria shown in section 109(a)( 1) 

of the -Act, made findings of fact, conclusions of law and issued an 

ORDER on the record, rendering his decision from the bench. Five violations were found .as originally charged. 

l/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA). 

2 
Findings of Fact and Conclusions of Law 

The findings of fact, conclusions of law, and ORDER made on the 

record froci the bench are hereby incorporated herein by reference and 

are AFFIRMED (tr. 21-24). 

Civil Penalties Assessed 

Notice No. 

6-0029 

6-0083 

6-0085 

7-0029 

7-0134 

Disposition 

Date 

04/27 /76 

08/03/76 

08/03/76 

02/15/77 

08/24/77 

Section 30 CFR 

75.1710 

77 .216(c) 

77.215(h) 

75 .1713-5 

75.316 

Penalty 

$ 50 

55 

45 

50 

50 

Total $250 

The Judge was notified by letter from the Office of the Solicitor, 

U.S. Department of Labor, that the Respondent had submitted payment 

of $250, as -0rdered for the five violations found by the Judge in his·· 

BENCH decision. WHEREFORE the above-captioned is CLOSED. 

Distribution: 

--wi 4 I p -~ -1 /f•/J (} 

11/ (£-fl:!(!~ 1 • μ:zl~-(.Jl~ 

Malcolm P. Littlefierd 

Administrative Law Judge 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919 

(Certified Mail) 

Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962 

(Certified Mail) 

3 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

MAR 2 1 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SHAMROCK COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 78-138-P 

(A/O No. 15-02502-02013) 

No. 18 Mine 

DECISION 

Appearances: John H. O'Donnell, Attorney, Office of the Solicitor, 

Department of Labor, for Petitioner; 

Neville Smith, Attorney, Manchester, Kentucky, for 

Respondent. 

Before: Judge Littlefield 

Introduction 

This is a pr..:.ceeding for assessment of civil penalties against 

the Respondent and is governed by section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9, 

1977), and section 109(a)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969). 

Section llO(a) provides as follows: 

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 he~lth or safety standard may 

co~stitute a separate offense. 

' Section 109(a)(l) provides as follows: 

The operator of a coal mine in which a violation occurs 

of a mandatory health or safety standard or who.violates any 

other provision of this Act, except the provisions of 

title 4, shall be assessed a civil penalty by the Secretaty 
under p.aragraph (3) of this .subsection which pe11alty 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 separat.e offianse. In determining 

the amount of the penalty, the Secretary 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 Dn the operator's ability to continue in business, 

the gravity.of the violation, and the demonstrated good 

faith of th~-operator charged in attempting to achieve 

rapid compliance after·notification of a violation. 

Petition 

On ~anuary 17, 1978, the 'Mine Safety and Health Administration 

(MSHA), 1/ through its attorney, filed a petition for assessment of 

civil penalties charging 20 .alleged violations of the Act. 

Answer' ' ( .. 

On January 31, 1978~ Respondent filed a detailed response to the \ allegations and r~quested a hearing thereon. 

Tribunal 

A hearing was held in Knoxville, Tennesee, on February 14, 1979. 

Both MSHA and Shamrock CoaL Company were represented by counsel (Tr. 

3). 

Evidence 

The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues 

on the part of counsel·for both parties. 

The Judge, after hearing all evidence, studying the record, 

reviewing the exhibits, giving sympathetic regard to mitigating circumstances, and fully considering the .criteria shown in section 

109(a)(l) of the Act, made findings of fact, conclusions of law 

and issued an ORDER on the record, rendering his decision from the 

~ench. Twenty violations were found as originally charged. 

l/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA). 

2 
Findings of Fact and Conclusions of Law 

The findings of fact, conclusions of law, and ORDER made on the 

record from the bench are hereby incorporated herein by reference and 

are AFFIRMED (Tr. 19-25). 

Civil Penalties Assessed 

Notice No. Date Standard 30 CFR Penalty 

7-0040 04/26/77 75.601-1 $ 65 

7-0046 05/02/77 75 .1710 55 

7-0047 05/02/77 75.1710 55 

7-0048 05/02/77 .75 .1710 55 

7-0051 05/02/77 75.516-2 70 

7-0052 05/02/77 75 .1103-1 65 

7-0057 05/02/77 75.-701 70 

7-0058 05/02/77 75. U00-2(b) 100 

7-0059 05/02/77 77.400 100 

7-0065 05/05/77 75 .1107-lCb) 65 

7-0069 05/05/77 75.518 100 

7-0070 .05/05/77 75 .1100-2(e) 65 

7-0073 05/05/77 75.1106-3(c) 65 

7-0074 05/05/77 75 .1106-3(a)2 65 

7-0075 05/05/77 75.601-1 2, 

7-0076 05/05/77 75.601 25 

7-0077 05/05/77 75.517 50 

7-0078 05/05/77 75 .1105 65 

7-0079 05/05/77 75.1102 95 

7-0080 05/05/77 75.518 95 

Total $1,350 

Dis£osition 

The Judge was notified by letter from the Office of the Solicitort 

U.S. Department of Labor, that the Respondent had submitted payment of 

3 
$1,350, as ordered for the 20-violations found by the Judge in his 

BENCH decision. WHEREFORE the above-captioned is CLOSED. 

Distribution: 

-,//~- f ~Altf Malcolm P. Lit~~ Administrative Law Ju4ge 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919 

(Certified Mail) 

Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962 

(Certified Mail} 

4 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

MAR 2 1 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHAMROCK COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 78-137-P 

(A/O No. 15-02502-02010) 

No. 18 Mine 

DECISION 

Appearances: John H. O'Donnell, Attorney, Office of the Solicitor, 

Department of Labor, for Petitioner; 

Neville Smith, Attorney, Manchester, Kentucky, for 

Re&pondent. 

Before: Judge Littlefield 

Introduction 

This is a proceeding for assessment of civil penalties agai~st 

the Respondent and is governed by section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9, 

1977), and section 109(a)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969). 

Section llO(a) provides as follows: 

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. · 

Section 109(a)(l) provides as fol~ows: 

The operator of a coal mine in which a violation occurs 

of a mandatory health or .safety standard or who violates any 

other provision of this Act, except the provisions of 

title 4, shall be assessed a civil peQalty by the Secretary 
under paragraph (3) of this subsection which penalty shall 

not be mo~e than $10,000 for each such violation. Each 

occurrence of a violation of a mandatory health or safety 

standard may constitute a separate offense. In determining 

the amount of the penalty, the Secretary 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 b~siness, 

the gravity of the violation, and the demonstrated good 

faith of the operator charged in attempting to achieve 

rapid compliance after notificatiov of a violation. 

Petition 

On January 16, 1978, the Mine Safety and .Health Administration 

(MSHA), 1/ through its attorney, filed a petition for asses~ment of 

civil penalties charging 20 alleged violations of the Act. 

Answer 

On Januafy 31, 1978, Respondent filed a detailed response to the 

allegations and requested a hearing thereon. 

Tribunal 

A hearing was held in Knoxville, Tennessee, on February 14, 1979 

Both MSHA and Shamrock Coal Company were represented by counsel (Tr. 

3-4). 

Evidence 

The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues 

on the part of counsel for both parties. 

The Judge, after hearing all evidence, studying the record, 

reviewing the exhibits, giving sympathetic regard to mitigating circumstances, and fully considering the criteria shown in section 

109(a)( 1) of the Act, made findings of fact, conclusions of law 

and issued an ORDER on the record, rendering his decision from the 

bench. Twenty violations were found as originally charged. 

l/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA). 

2 
Findings of Fact and Conclusions of Law 

The findings of fact, conclusions of law, and ORDER made on the 

record from the bench are hereby incorporated by reference and are 

AFFIRMED (Tr. 21-27). 

Civil Penalties Assesse.d 

No. Date Standard 30 CFR Penalty 

6-0050 06/17/26 75 .1725 $ 50 

6-0098 09/29/76 75 .1100-2(b) 50 

7-0017 02/02/77 70.lOO(b) 10 

7-0027 02/14/77 75.303 45 

7-0033 03/02/77 75.329 so 

7-0038 04/26/77 75 .503 50 

7-0039 04/26/77 75.701 100 

.7-0041 04/26/77 75.200 40 

7-0045 05/02/77 75.316 45 

7-0049 05/02/77 75.400 50 

7-0050 05/02/77 75.400 50 

7-0053 05/02/77 75 .516 50 

7-005!1. 05/02/77 75.202 50 

7-0055 05/02/77 75.303 60 

7-0056 05/02/77 75.515 50 

7-0060 05/02/77 75.507 45 

7-0061 05/02/77 75.316 55 

7-0064 05/05/77 75.503 50 

7...:0066 05/05/77 75.503 50 

7-0067 05/05/77 75.503 so 

$1,000 

Disposition 

The Judge was notified by letter from the Office of the Solicitor, 

U.S. Department of Labor, that the Respondent had submitted paruent 

. L 

3 
of $1,000, as ordered for the 20 violations found by the Judge in his 

BENCH decision. WHEREFORE the above-captioned is CLOSED. 

7/Ja/ee1~ T /dt~~tl. Malcolm P. Littlefield,/ . 

Administrative Law Judge 

Distribution: 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor,. 4015 Wilson Blvd., Arlington, VA 22203 

Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919 

(Certified Mail) 

Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962 

(Certified Mail 

\ 

4 
FEDERAL MU<iE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

MAR 2 .1 1979 

MX' 11AR,SHALL' 

SECRETARY OF LABOR, 

Petitioner 

Civil Penalty Proceeding 

Docket No. PITT 79-86-P 

Assessment Control No. 

36-06113-03004 

v. 

Westland No. 2 Mine 

CONSOLIDATION COAL CO. 

Respondent : '* 

DECISION 

On March 9, 1979, the Mine Safety and Health Administration (MSHA), 

moved the Judge to approve a settlement to which the parties had ~greed, 

and dismiss the above-captioned. 

The alleged violations and proposed settlements are as follows: 

Number 

23226 

233770 

7/17/78 

7 /24/78 

30 CFR Standard 

77 .1003 

75.1719-4 

Assessment 

$106.00 

48.00 

Total $154.00 

Settlement 

$106.00 

36.00 

$142.00 

As grounds to support the proposed reduction in the penalty for 

citation No. 233770 MSHA avers: 

"A reduction from the original assessment is 

warranted because the negligence of the operator 

in citation No. 233770 did not merit an allocation 

of nine points. By reducing this amount of five 

points and by applying the figures supplied in the 

penalty conversion table, an appropriate penalty 

is $36;00 rather than $48.00." 

As the above settlement is within the bounds of reason, does not 

shock the conscience and will effectuate the deterrent purpose of civil 

penalties under section llO(a), it is hereby APPROVED. 

The above-captioned is DISMISSED. 
The hearing scheduled for Wednesday, March 14, 1979, in 

Pittsburgh, Pennsylvania, was VACATED. 

Distribution: 

'--fl1. /J. § f. y:i J ... /! ,1 rf l/l/~,A4A/ • /ra.tt;rcq 

Malcolm P. Littlefield · 

Administrative Law Judge 

Regional Solicitor, U.S. Department of Labor, Room 14480-Gateway 

Bldg., 3535 Market Street, Philadelphia, Pa. 19104 (Att: Marshall 

H. Harris and Barbara Krause Kaufmann, Attorneys)(Cert. Mail) 

Consolidation Coal Company, Consol Plaza, 1800 Washington Road, 

Pittsburgh, Pa. 15241 (Att: Karl T. Skrypak, Attorney) 

(Cert. Mall) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES· 

4015 WILSON BOULEVARD 

ARLINGTON VIRGINIA 22203 

M/l.R 2 1 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHAMROCK COAL COMPAHY, 

Respox:ident 

Civil Penalty Proceeding 

Docket No. BARB 78-637-P 

(A/O No. 15-02502-~2024) 

No. 18 Mine 

DECISION 

Appearances: John H. O'Donnell, Attorney, Office of the Solicitor, 

Department of Labor, for Petitioner; 

Neville Smith, Attorney, Manchester, Kentucky, for 

Respondent. 

Be fore: Judge Littlefield 

Introduction 

This is a proceeding for ·assessment of civil penalties ·against 

the Respondent and is governed by section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9, 

1977), and section 109(a)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969). 

Section llO(a) provides as follows: 

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. 

·Section 109.(a)( 1) provides as follows: 

The operator of a coal mine in which a violation.occurs 

of a mandatory health or safety standard or who violates any 

other provision of this Act, except the provisions of 
title 4, shall be assessed a civil penalty by the Secretary 

under paragraph (3) of this subsection 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. In determining 

the amount of the penalty, the Secretary 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 th<: 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 operator charged in attempting to achieve 

rapid compliance after notification of a violation. 

J?etition 

On August 17, 1978, the Mine Safety and Health Administration 

(MSHA), 1/ through its attorney, filed a petition for assessment of 

civil penalties charging nine alleged violations of the Act. 

Answer 

On September 14, 1978, Respondent filed a detailed response to 

the allegations and requested a hearing thereon. 

Tribunal 

A hearing was held in Knoxville, Tennessee, on February 14, 1979. 

Both MSHA and Shamrock Coal Company wer.e represented by counsel (Tr. 

4-5). 

Evidence 

The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues 

on the part of counsel for both parties. 

The Judge, after hearing all evidence, studying the record, 

reviewing the ex.hibits, givingsympathetiC1r~gardtomitigating circumstances, and fully considering the criteria shown in Section 109(a)(l) 

of the Act, made findings of fact, conclusions of law and issued an 

ORDER on the record, rendering his decision from the bench. Nine violations were found as originally charged. 

17 Successor-in-interest to the Mining Enforcement and Safety AdminIstration (MESA). 

2 
Findings of Fact and 'conclusions of Law 

The findings of fac-t, conclusions of law, and ORDER made -0n 

the record from the bench are hereby incorporated herein by reference 

and are AFFIRMED (Tr. L4-17). 

Civil Penalties Assessed 

Notice No. Date Section 30 CFR Penalty 

7-0129 09/26/77 75.316 $200 

7-0131 09/29/77 75.202 25 

8-0012 02/21/7 8 75.400 :35 

8-0013 02/21/78 75.200 25 

8-0014 02/21/78 75.200 25 

8-0015 03/01/78 75.1710 35 

8-0016 03/01/78 75.1710 35 

8-0017 03/01/78 75.1710 35 

8-0018 03/01/78 75.1710 35 

Total $450 

Disposition 

The Judge was notified by letter from the Office of the 

Solicitor, U.S. Department of Labor, that the Respondent had submitted. 

payment of $450.00, as ordered, for the nine violations found by the 

Judge in his BENCH decision. WHEREFORE the above-captioned is CLOSED. 

Distribution: 

71/~?. flAA.. ~IV"V\ Malcolm P. Littlefield 

Administrative Law Judge 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

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

22203 

Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919 

(Certified Mail) 

Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962 

(Certified Mail) 

3 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 22, 1979 

Civil Penalty Proceedings 

A.G. NO. Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Docket Nos. 

PITT 79-55-P 

-108-

-124-

36-00973-03003 

-00809-03006 

-00808-03001 

Banning 

Newfield 

Russell ton 

REPUBLIC STEEL CORPORATION, 

Respondent 

Appearances: 

ORDER APPROVING SETTLEMENT AGREEMENTS 

AND DIRECTING PAYMENT 

Inga Watkins, Esq., Office of the Solicitor of Labor, 

for Petitioner 

B. K. Taoras, Esq., Attorney for Republic Steel 

Corporation, Respondent 

On March 21, 1979, in open court, counsel for Petitioner moved for approval 

of settlement agreements in each of the above docket numbers. 

With respect to Docket No. PITT 79-55-P, the parties agreed to settle 

the matter for payment of $295, the amount of the original assessment. The 

violation charged was of 30 CFR 75.200. The hazard was reduced by circumstances and the negligence was slight. 

With respect to Docket No. PITT 79-108-P, the parties agreed to settle 

the matter for payment of $122, the amount of the original assessment. 

The citation charged a violation of 30 CFR 75.1725. The condition was not 

serious, there was a minimal history of prior violations of this standard 

and the condition was abated in good faith. 

With respect to Docket No. PITT 79-124-P, the parties agreed to settle 

the matter for payment of $180, the amount of the original assessment. The 

citation charged a violation of 30 CFR 75.507. The condition was not serious and there was a minimal history of prior violations of this standard. 

Having duly considered the matter, I co~clude that the settlement 

agreements should be approved as being consistent with the policy of 

the Act. 

Therefore, it is ORDERED that the settlement agreements are APPROVED. 

Respondent is ORDERED to pay within 30 days of the date of this decision 
2 

the following amounts: 

Docket No. PITT 79-55-P $295 

-108-P - 122 

-124-P - 180 

Upon payment of this amount, the proceedings will be DISMISSED. 

j <Y1/Jrt.L-5 AfJ v~dn e,/_, 

James A. Broderick 

Chief Administrative Law Judge 

Distribution: 

B. K. Taoras, Esq., Attorney for Republic Steel Corporation, Coal Mining 

Division, 604 Faxette Bank Building,Uniontown, PA 15401 

Inga Watkins, Esq.·, Trial Attorney, MSHA, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG fNIA 22203 

March 26, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

. 

. • 

Docket No. BARB 78-606-P 

A.O. No. 15-07166-02023V 

Sinclair No. 2 Mine 

DECISION 

Appearances: John H. O'Donnell~ Trial Attorney, Office of the 

Solicitor, U.S. Department of Labor, Arlington, 

. Virginia, for the petitioner; 

\~homas F. Linn, Esquire, St. Louis, Missouri, for 

the respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

This is a civil penalty proceeding pursuant to section UO(a) 

of the Federal Mine Safety and Health Act of 1977, initiated by the 

petitioner against the respondent on August 7, 1978, by the filing 

of a petition for assessment of ~ivil penalty, seeking a civil pen~ 

alty assessment for two alleged violations of mandatory safety standards 30 CFR 75.200, and 75.1400, set forth in section 104(c)(2) 

orders, issued by Federal mine inspectors Arthur J. Parks and 

Thomas M. Lyle in October and December 1977. Respondent filed an 

answer and notice of contest on September 7, 1978, denying the allegations and requesting a hearing. A hearing was held in Evansville, 

Indiana, on December 12, 1978, and the parties submitted posthearing 

proposed findings, conclusions, and briefs, and the arguments set 

forth therein have been considered by me in the course of this 

decision. 

Issues 

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

respondent has violated the provisions of the Act and implementing 
regulations as alleged in the petition for assessment of civil penalty filed in this proceeding, and, if so, (2) the appropriate civil 

penalty that should be assessed against the respondent for the alleged 

violation, based upon the criteria set forth in section 109(a)(l) of 

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

disposed of in the course of this decision. 

In determining the amount of a civil penalty assessment, section 

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

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

(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 Coal Mine Health and Safety Act of 1969, 

30 U .s .c. § 801 \~t ~·, now the Federal Mine Safety and Health Act 

Qf 1977. 

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

3. Interim Commission Rules, 29 CFR 2700.1 et~· 43 Fed. Reg. 

10320-10327, March 10, 1978. 

Stipulations 

The parties stipulated to the following: 

1. At all times relevant, the mine was owned and operated by 

Peabody Coal Company, a large coal mine operator. The mine employed 

219 persons underground, 25. persons on the surface, and has a daily 

production of 3,000 tons of marketable coal (Tr. 5). 

2. Any penalty assessed for the alleged violations will not 

adversely affect the respondent's ability to remain in business (Tr. 

5). 

Discussion 

104(c)(2) Order No. 7-0127, 1 AJP, issued on: October ~8, 1977, by 

Federal coal mine inspector Arthur J. Parks, citing a violation of 

30 CFR 75.200, states as follows: 

The approved roof control 'plan (September 2, 1977) was 

not being followed on the No. 2 Unit (LD. 004) Northwest 

Mains in that entries and crosscuts were being driven in 

2 
excessive widths (Last crosscut between No. 1 & No. 2 

entries- 23 ft. 5 inches; No. 4 entry at the feeder- 22 ft. 

8 inches; No. 4 entry 2 crosscuts inby the feeder- 24 ft. 

No. 5 entry 30 feet inby spad no. 915-21 feet). Responsibiiity of Albert Knight, mine manager; Byron Bailey and 

Charles Chumley, Asst. Mine Managers; and Roy Stills and 

James Griggs, Section Foremen. 

30 CFR 75.200 provides as follows: 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system 

of each coal mine and the means and measures to accomplish 

such system. The roof and ribs of all active underground 

roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs. A roof control plan 

and revisions thereof suitable to the roof conditions and 

mining system of each coal mine and approved by the Secretary shall be adopted and set out in printed form on or 

before May 29, 1970. The plan shall show the type of support and spacing approved by the Secretary. Such plan 

shall be reviewed periodically, at least every 6 months by 

the Secretary, taking into consideration any falls of roof 

or ribs or inadequacy of support of roof or ribs. No person shall proceed beyond the last permanent support unless 

adequate temporary support is provided or unless such temporary support is not required under the approved roof 

control plan and the absence of such support will not pose 

a hazard to the miners. A copy of the plan shall be furnished to the Secretary or his authorized representative 

and shall be available to tha miners and their 

representatives. 

Testimony and Evidence Adduced by Petitioner 

MSHA inspector Arthur J.·Parks testified that he is familiar with 

the Sinclair No. 2 Mine which is located near Drakesboro, Kentucky, 

near Muhlenberg County and is in the Kentucky No. 9 seam. A conventional method of mining is used there, i.e., the coal is cut~ reeled 

and then shot and loaded out with a loading machine. Continuous mining 

machines are not presently utilized (Tr. 9-10). On October 18, 1977, 

he issued to assistant mine manager' Byron Bailey, section 104(c)(2) 

Order of Withdrawal No. 1 AJP, citing 30 CFR 75.200, because he 

observed places that were wider than the 20-foot width that the roof 

control plan called for. The first place that he noticed in excess 

of 20 feet was the last open crosscut on the return side of the unit. 

The crosscut between Nos. 1 and 2-entries, which is the last open 

crosscut on the return, was 23 feet 5 inches. He made this determination by using a 50-foot lape line. In addition, he found three 

3 
other places where the roof control plan had not been followed. Two 

places were in front of the feeder, which is in the No. 4 entry, and 

another place was in front of the power center, which is in the No. 4 

entry. The fourth pl~ce listed on the face of the order is No. 5 

entry, 30 feet inby spad No. 915; the width at that point was 21 feet. 

Under the roof control plan, the maximum width that each of these 

entries could be was 20 feet (Tr. 16). He was at the mine to investigate a roof fall, which, in turn, prompted him to check for wide 

places or other violations. The roof-bolting pattern seemed to be 

satisfactory. 

Inspector Parks indicated that cutting wide places weakens the 

top, which, in turn, may result in a roof fall since the top weakens 

when the entry is too wide. Coal at the Sinclair No. 2 Mine averages 

58 inches in height. In some places, one can stand up, but in other 

places it is difficult to even walk, and it has been determined that 

a 20-foot height in this coal seam works best. With the exception of 

shift changes, as a rule, there is someone in the area 24 hours a day. 

The cracks in the roof presented a danger of a potential roof fall. 

He sounded the roof and, in his opinion, it sounded drummy. From his 

visual examination of the roof, he determined that some timbers needed 

to be set in quickly to compensate for the wide entries in the crosscuts (Tr. 17-20). 

Inspector Parks found the violation was of such a nature as could 

significantly and substantially contribute to the cause and effect of 

a mine safety and health hazard because a roof fall could be fatal or 

permanently injuring. Such a roof fall previously occurred in the 

fourth crosscut from the face of the No. 3 entry, where the entry and 

c1osscut widths were approximately 18 feet: From this incident, he 

az dved at the conclusion that if the roof fell in an area with that 

~idth, it would be likely in areas where the width is even wider, 

!.··£•, the face. Mr. Parks believed the operator should have known 

oi the condition, and that with reasonable effort, should have known 

that certain areas were too wide. The last open crosscut between 

No. 1 and No. 2 entries, which is 23 feet 5 inches, is the place 

where an air measurement is customarily taken by the face boss or 

preshift examiner. Since the air measurement is determined by measuring across the crosscut and then multiplying the height to get the 

area and then multiplying that by the linear reading on the anemometer 

to find out what the quantity of air is passing throught the crosscut, 

in measuring the width, respondent would have determined that the 

crosscut was 3 feet 8 inches too wide and could have set some timbers 

in it. In addition, the face boss marks the width of the face for 

the cutter and driller to follow, and by so marking the area, the 

width is determined (Tr. 22-24). 

While the excessive widths were visually obser.vable, Mr. Parks 

also measured the places that were cited on the face of the order, 

and these were from the narrowest points of the entry and/or crosscuts and were not from duck nests (i.~., a V-shaned cut in the back 

4 
of the rib that occurs as a result of a cutterman sumping too far to 

the right, thereby pulling his bar too far to the left). If he had 

found that an effort had been made to hold the width of the ribs to 

18 feet and' the general rib line was 18 feet, he doubts that he would 

have cited any violations because the average rib line would probably have been 20 feet or no more than 20 feet. The ribs were not 

straight; they were full of duck nests, and there were duck nests on 

the entries. With regard to the probability of injury or death 

occurring to a miner due to the condition, Mr. Parks indicated the 

area in front of the feeder would be the most dangerous, and his reason for this opinion is that when men are traveling through this area, 

due to the car and feeder noise, the men might not hear the top working (Tr. 25-29)~ 

Inspector Parks terminated the order on October 20, 1977, 2 days 

after it issueds and he believed the operator did not demonstrate good 

faith in abating the condition because the 100 timbers which had to be 

set in order to terminate the order, could have been set on the second 

and third shifts on October 18. However, the foremen at the mine had 

gone on strike and, as a result, there was no one to set the timbers 

earlier, and when he returned to the mine on the 19th, he. saw only 

three men underground (Tr. 34). 

On cross-examination, Mr. Parks stated that the term "excessive 

widths," as used in his order, means in excess of 20 feet. When he 

issued the order~ he was aware of the provision on page R-5 of the 

MESA Manual that defines an "excessive width" as 12 inches or more 

than the planned opening width; however, he later testified he was 

not aware of it. According to the MESA Manual, the widths cited in. 

the order would not have been excessive (Tr. 36-40). 

Mr. Parks testified that he made the measμrements with a cloth 

tape measure, and assistant mine manager Byron Bailey held the other 

end of the tape measure for him. He doubted that the tape could 

have stretched enough through use to make a difference in measuring. 

He did not know when the last crosscut between Nos. 1 and 2 entries 

(23 feet 5 inches wide) was mined (Tr. 41-45). With regard to the 

first area that he noted which was 23 feet 5 inches and located in 

the last open crosscut, Mr. Parks indicated the men were still working in the general vicinity. He did not determine upon first seeing the area, that it was an unwarrantable failure when he found out 

that it was excessively wide, since he thought that it was a mistake. 

However, after he saw three more places' that were too wide, he deter-

!llined that it was a practice throughout the mine and that some timbers should be put up. Although he observed seven places that were 

in violation due to excessive widths, he docume~ted only four on his 

order. When he went back to terminate the order and to check over 

the rib, he found, in total, approximately 16 places that were too 

wide. Once he issued the order~ he would not terminate it until all 

the wide places on the run were timbered, thereby making the area 

5 
safe. After he came back to terminate, he found that there were· 

other places that were wider than the ones that he cited (Tr. 54• 

57). 

Inspector Parks testified that he cited only four places because 

he was satisfied in his mind that if he started writing up one citation after another, that those working. at the mine could continue 

working and endangering themselves if there were more wide places. 

His intent was to get the units shut down and make the people aware 

of the bad top or bad conditions from the excessive widths and get 

the condition corrected (Tr. 59-63). When he inspected the top and 

areas where the excessive widths existed, he sounded the top, however, 

he prefers to rely upon the examination of the roof, since he cannot 

tell a great deal en the basis of sound. He was, nonetheless, satisfied with it. Although he did not like the looks of the roof, he 

understands that the pinning pattern in roof control can hold the 

roof in place even if it has er ks in it. The areas were pinned and 

he did not observe a pin patter.. ,riolation. Timbers are frequently 

knocked out by equipment running through, especially on the corners 

where the shuttle cars are running through.since they are wide 

machines (Tr. 69-70). Although he found no areas in the entries 

cited to be les~\ than 20 feet wide, the entry and the crosscut at 

the roof fall were 18 feet wide and on previous occasions he did 

measure other areas on the unit and some were less than 20 feet 

and some crosscuts were 17-1/2 feet wide (Tr. 74-76). 

Mr. Parks believed the wide places are caused by the creation of 

duck nests, i.e., the cutterman getting off his mark and then trying 

to get back on-; but not really knowing where he is. It is a multiplying effect and the area could keep getting wider and wider, and 

while the rib line could be perfectly straight, there could still be 

an excessive width. He described where his measurements were made 

from the rib line, and he indicated there were no straight rib lines 

throughout the unit (Tr. 77-81). 

Inspector Parks inidcated that when he returned to the mine the 

next day, there were few people there because of a strike. He 

referred to a memorandum from his superi0rs who advised the inspector to consider issuing section 104(c) unwarrantable failure o.rders 

rather than 104(b) notices. 

When he returned to the .,:Lne, hE', did not see very many men there 

and he assumes that there was not a s~f ficient number of men working 

to terminate the order. He found four more places t'hat needed to be 

timbered before he could terminate the order' .but he did not issue a 

notice or order on those other areas because the mine was still under 

a closure order and no work was being performed. Had it not been for 

the strike, he does not know whether good faith would have been shown, 

but he can reasonably expect it to be shown (Tr. 84-87). 

6 
In response to bench questions, Mr. Par~s stated that in order 

to abate the order, 100 posts were set all over the unit, but at the 

four locations with excessive wid.ths, approximately 30 posts were 

set. The posts that were set in the other locations were set in connection with other wide places and entries not cited in his order. 

The ultimate effect of his withdrawal order, therefore, went to other 

wide places which he did not cite and which the operator was required 

to abate anyway. Aside from the wide places that he found, these 

locations were in compliance with the other provisions o.f the roof 

control plan, and he did not notice a violation of the roof-control 

pattern according to the pin pattern (Tr. 97-98). 

Respondent 1 s Testimony 

Albert Knight, general mine manager, testified he was at the mine 

surface on October 18, 1977, and became aware of. the subject order 

when the face foreman called him and told him that an order had been 

issued on the section. When he arrived at the cited area, he saw that 

the rib had broken and they began timbering it out so that it could 

be abated on the second shift. He was not present when the order was 

abated, but subsequently learned that 18 to 25 timbers had to b~ 

installed to take• care of the four areas cited in the order. A work 

stoppage had been called by the face fore~en and mine management 

personnel based on the (c) orders and notices that had been issued 

to the Sinclair No. 2 Mine and to other mines during that perioa of 

time (Tr. 104-105). 

Mr. Knight did not consider the alleged violation to be caused by 

an unwarrantable failure, and he did not believe that it was noticeable 

enough for anyone to pay much attention to it (Tr. 110-111). The roof 

control plan (Exh. P-2) calls for the width of openings on the entries 

to be 20 feet and rooms to be 26 feet. For entries, that plan calls 

for roof support to consist of crossbars plus supplementary timbers 

and crossbars, if needed. With respect to rooms, they are not timbered 

unless they have an abnormal condition. The roof support plan requires 

that they timber out any entries. The belt entry was timbered up to 

the tailpiece and the other entries were timbered up (Tr. 114-116). 

Mr. Knight described "duck nests, 11 and stated it is possible to 

avoid creating them by having a conscientious machine operator~ Cutting machine operators are shown where to cut by the face boss marking the ribs and th'e center line with . florescent paint. Even though 

mine management shows the areas to be cut, it is still possible for 

duck nests to be created through error or inexperience on the part 

of the machine operator (Tr. 117-120). 

He observed each of the areas cited by Inspector Parks in his 

order, and in his view, each of the -wide areas were caused or created 

by cutting duck nests, and the roof above the duck nest·s was roofbolted (Tr~ 121-122). 

7 
Mr. Knight alluded to a meeting held by mine management with 

local MSHA officials in Madisonville to discuss the issuance of 

unwarrantable failure notices at the mine. The work stoppage by the 

mine foremen was caused by the issuance of these orders and the foremen were concerned because they took them personally and viewed them 

as a reflection on their job performance. Since that meeting, he 

received no more unwarrantable failure orders (Tr. 123). 

On cross-examination, Mr. Knight stated that the meeting with 

MSHA was not intended to intimidate anyone. He clarified his previous statement that no subsequent 104(c)(2) orders were issued, and 

indicated that one was issued on October 27, 1977, for a section 

75.1704 hoist violation, and indicated that another general inspection has not been completed at the mine (Tr. 130). Mr. Knight was 

not present on the section when Mr. Parks issued his order or made 

his measurements (Tr. 139). 

104(c)(2) Order No. 7-0166, 1 TML, issued on December 30, 1977, 

by Federal coal mine inspector Thomas M. Lyle, citing a violation of 

30 CFR 75.1400, states as follows: 

A qual~fied hoisting engineer was not provided on the 

surface at or near the hoist facility of the Sinclair underground No. 2 Mine on the third shift while persons were 

underground in the event of an emergency should arise to 

withdraw such persons from the underground workings. 

Responsibility of Ruben Thorpe, supt. and Bill Hampton, 

mine foreman third shift. 

30 CFR 75.1400 provides as follows: 

Every hoist used to transport persons at a coal mine 

shall be equipped with overspeed, overwind, and automatic 

stop controls. Every hoist-handling platforms, cages, or 

other devices used to transport persons shall be equipped 

with brakes capable of stopping the fully loaded platform, 

cage, or other device; with hoisting cable adequately 

strong to sustain the fully loaded platform, cage, or 

other device; and have a proper margin of safety. Cages, 

platforms, or other devices which are used to transport 

persons in shafts and slopes shall be equipped with safety 

catches or other no less effective devices approved by the 

Secretary that act quickly and effectively in an emergency, 

and such catches shall be tested at least every 2 months. 

Hoisting equipment, including automatic elevators, that is 

used to transport persons shall be examined daily. Where 

persona are transported into, or out of, a coal mine by 

hoists, a qualified hoisting ertgineer sh~ll be on duty 

while any person is underground, except that no such 

engineer shall be required for automat.ically operated 

cages, platforms, or elevators. [Emphasis added. J 

8 
Petitioner's Testimony and Evidence 

MSHA inspector Thomas M. Lyle confirmed that he issued the order 

in question and served it on Bill Hampton, the third shift foreman. 

Mr. Lyle testified that he arrived at the mine at 4 a.m. on 

December 30, 1977, and encountered no one in the area of the foreman's office nor in the hoist room, where normally a man would be on 

duty. After walking through the bath house and the supply room which 

he originally had passed through, he encountered a supply clerk of 

who he asked the whereabouts of the foreman and .hoistman. The supply clerk told him that Mr. Hampton was the foreman and to the best 

of his knowledge was also the hoistman and that he and the other men 

were underground (Tr. 142-145). 

He then went to the shop and asked foreman Randy Plunkett as to 

where Mr. Hampton might be located and was told that Mr• Hampton was 

in the mine with two other foremen. He was also told by Mr. Plunkett 

that Mr. Hampton was the hoisting engineer. He asked Mr. Plunkett 

whether he was certified to run the hoist and was told that he was 

not and that he did not know anything about running one. He then 

asked Mr. Plunkett if he was aware that section 75.1400 of the Code 

of Federal Regulations requires that a hoisting engineer be on duty 

at all times. Mr. Plunkett responded that he was aware of the provision, but that he was not the mine foreman, but would try to get 

in touch with Mr. Hampton. However, Mr. Plunkett was unsuccessful 

in doing so. In the meantime, Mr. Lyle called his superviso~, Clyde 

Turner, and told him what he had found at the mine and that he was 

going to issue a 104(c)(2) order. At 5:45 that morning, Byron Bailey, 

the assistant foreman on the day shift, came in and Mr. Lyle told 

Mr. Bailey that he was going to issue an order. Mr. Bailey replied 

that he did not know exactly why Bill Hampton was underground, but 

that both he and Mr. Hampton were aware that they were supposed to 

keep a qualified hoisting engineer on duty and said that there is 

no excuse. Mr. Bailey finally got in touch with Mr. Hampton by 

telephone and told Mr. Hampton that an order was in the process of 

being issued and that he should withdraw the men from the mine and 

bring them outside (Tr. 146-155). 

Mr. Lyle described the hoisting device in ·question and its operation. He indicated that it was possible for men to walk out of the 

mine without using a hoist unless they were injured. However, at the 

time the order issued, the slope was icy and, in.~is opinion, two men 

could not carry an injured man out of•the mine on a stretcher and up 

the slope. If they should be successful in doing so, it would take 

an extremely long time. 

He spoke with Mr. Hampton after he came out of the mine and 

Mr. Hampton told him that he knew that there was supposed to be a 

hoist man on top, but that there were only two men besides himself 

who were working and he just could not sit around while they were 

9 
in the mine rock dusting, so he went in the mine to help them. 

Mr. Hampton then told him that he promised that it would not happen 

again (Tr. 155-162). 

Mr. Lyle testified that he believed the violation could have 

contributed to a "significant and substantial" safety hazard because 

if someone underground other than Mr. Hampton had been injured, it 

would have taken Mr. Hampton probably 10 or 15 minutes to walk up to 

the hoist room and drop the car. In addition, someone would have to 

have been ready to help load the car and bring them out. It would 

have probably taken 30 minutes to do all this. Had there been a 

hoist man on the surface, if someone were to be injured, all that 

would have been necessary would be to call him and tell him to drop 

the car and then load the injured man and bring him straight out. 

In a matter of approximately 3 minutes, the injured man would have 

been brought to the surface and would be on his way to a hospital 

(Tr. 163-165). 

Mr. Lyle testified that he made a finding that the violation was 

an unwarrantable failure because Mr. Hampton is"'a mine 'foreman, 'he ' 

had been traine~ in operating a hoist and had certification papers as 

to his ability and, he was aware of the requirement that someone be 

on duty to operate the hoist. In addition, on other occasions complaints had been made that men were going into the mine on Sundays 

without a hoisting engineer and he and other inspectors had talked 

to the company personnel at the mine. He had talked with Ruben 

Thorpe, the superintendent of the mine, and the last of these conversations was right after the miners went on strike, sometime 

around December 5 or 6, 1977 (Tr. 165-167). 

Although 30 CFR 75.1400 contains the caveat that a hoisting man 

need not be present if there are automatically operated cages) platforms or elevators, Mr. Lyle did not believe that it would be applicable to the situation at hand because Sinclair No. 2 Mine does not 

have an automatic cage. Even the emergency escapeway requires a person to raise it. He served the notice of abatement (Exh. P-5) on 

Mr. Hampton 1 hour and 15 minutes after he issued the order. With 

regard to whether or not good faith was exercised, upon arriving at 

the_mine, he did not receive much cooperati9n on the surface since the 

mine foreman was underground with two other foremen, except th·at he 

was called for. After Mr. Bailey arrived, however, he cooperated 

with him. He abated the violation after going down to the hoisting 

room with the day shift hoistman, Larry Cleveland. He checked the 

hoist' as Mr. Cleveland operated it. Since Mr. Cleveland was a qualified hoisting engineer and was on d~ty at the time, he abated the 

violation. Mr. Cleveland· was not present at the time he issued the 

order of withdrawal, and, in his opinion, Mr. Cleveland showed a 

good degree of proficiency with respect to operating a hoist (Tr. 

161-170). 

10 
On cross-examination, Mr. Lyle confirmed that the mine was not 

in operation on the day he issued his order, except for nonunion 

personnel,· and this was due to the nationwide miners' strike. The 

three people that were underground did not use the slope car, and 

'apparently walked into the mine. He did see Mr. Hampton walking near 

the iron core of the portal. From his reports, it was a practice on 

Sunday for supervisory personnel to walk into the mine and inspect 

it for hazardous conditions and then walk back out. The slope was 

732 feet long from the portal to the bottom and was at a 16-degree 

angle. He has walked down the slope and to the ~est of his recollection, there is a handrail. The slope, however, was severely 

frozen (Tr. 172-176). 

Mr. Lyle testified that in addition tp the hoist telephone, there 

was also a mine telephone underground that connects with the office on 

the surface and could be used if one was unable to reach anyone in 

the hoist· house. If someone was in the shop and it would take him 

approximately 3 minutes to get over to the hoist house, he would consider that as being in close proximity to the hoist house. Had there 

been a qualified hoisting engineer in the bathhouse, office, or in the 

shop, he would not have issued the order regardless of whether the 

hoisting enginee~ was dressed, because in an emergency situation, he 

could have summoned someone out of the mine. In addition to the 

regular slope hoist, there is an emergency slope hoist. On the basis 

of Mr. Plunkett's earlier statement, he does not know whether or not 

Mr. Plunkett could operate the emergency hoist (Tr. 180-183). 

Since it is likely that none of the three men were transported 

into the mine b.y a hoist, Mr. Lyle still believed that a qualified 

hoisting engineer has to be on the surface. He does not recall anyone ever commenting to him that when people walked into a mine and 

contemplated·walking out of the mine, that irt that case no hoisting 

engineer had to be in the hoisthouse. He does not know how long it 

takes for the hoist car or the hoist to get down to the bottom since 

he has never timed it (Tr. 186-187). 

During a strike such as the one that was underway on December 30, 

1977, Mr. Lyle agreed that it is a prudent and good mining practice 

to go in and inspect the mine on a regular basis and make sure that 

the integrity of the mine is maintained. He does not know if t.hat 

is what Mr. Hampton and hh two associates were doing that day, since 

they told him that they were rock dusting. Although Mr. Hampton, a 

·qualified hoisting engineer, was on the surface at 6 a.m., a.s evidenced by the fact that he gave Mr. Hampton the order at that time, 

he did not abate the order until 7:15 a.m., because he was never 

asked to abate until Mr. Cleveland arrived, since he was told that 

they were going to discuss it (Tr. 188-189). 

In response to questions from the bench, Mr. Lyle indicated 

that there is no question in his mind that the system of taking 

li 
people underground constitutes hoisting, and he does not consider 

it haulage. However, he did not know why it is not haulage, and 

neither he nor his fellow inspectors, to the best of his recollection, have questioned whether this particular device is a hoisting 

device. The slope in question is a designated escapeway (Tr. 195-

205). 

Respondent's Testimonx 

General mine manager Albert Knight testified he was at the mine 

the day the order issued and he confirmed that the mine was not working because of a nationwide miners' strike. The first shift was 

timbering, and the shift in question was fire-bossing and dusting. 

He did not know whether the hoisting device was used by the third 

shift on the day the order was issued. Normally, they had not been 

using it as the men had been walking in the mine and then walking out. 

He was told by Mr. Hampton that on the day the order issued, he walked 

in the mine and they walked out. In his opinion, it is not necessary 

to use the hoisting device to get underground since it is possible 

to walk in and to walk out of the mine. The slope is approximately 

750 feet in le~gth and is at a 16-degree angle. There are handrails 

which go all the way to the bottom. The hoisting device is used to 

transport men, out most of the time it is used for supplying the 

mine (Tr. 214-218). 

Mr. Knight testified that it takes approximately the same time 

to walk from the bottom area up the full 700 feet to the portal as 

it would to use the hoisting device to bring a group of people out 

of the mine--approximately 7 minutes. Whether or not section 

75~1400 requires a hoisting engineer to be on duty if the hoisting 

device is not used to take persons underground, has been an argument 

with the union people for about 3 years. Up until this particular 

order was written, he has consistently maintained that a hoisting 

engineer is not necessary when the device is not being used to get 

underground. Since the order issued, they have had a hoistman on 

duty on the surface and he described the operation of the hoist (Tr. 

218-220). 

Mr. Knight testified that during the strike, it was customary 

on the third shift to walk in and out of the mine and not use the 

device. Prior to the time the order was issued, the only time that 

the necessity. of having a hoist was brought up was when the hoistman, a union employee, brought up the fact of going in and out of 

the mine and that it was against the law. When the mine is not on 

strike, the hoistman is on duty 24 hours per day. He is a qualified 

hoisting engineer and is on call 24 hours per day; thus, if he had 

been needed on the morning of December 30, 1977, he could have 

arrived at the mine in about 6 minutes, even though he lives about 

5 or 6 miles .from the mine (Tr. 221-223). 

12 
On cross-examination, Mr. Knight testified that while he could 

not recall the temperature on the day in question, he confirmed there 

could have been ice on the slope, even though it had been cleaned. 

The mine met the requirements of section 75.1402 and there are two 

telephones in the hoisthouse equipped with speakers and a page system 

which can be heard over the entire surface of the mine. He was not 

on the mine property at the time the order was issued, and has no 

idea why it took so long for the inspector to inform Mr. Hampton that 

the order of withdrawal had been issued. Normally, during a production shift, men are hauled in and out of the mine (Tr. 223-226). 

Findings and Conclusions 

Fact of Violation--30 CFR 75.200 

In its posthearing brief, petitioner argues that it has established by a preponderance of the evidence that the areas cited were 

in fact wider than the 20 feet allowed by the mine~approved roofcoritrol plan. Although conceding that the inspector cited only 

four places that had excessive widths, when, in fact, he observed 

16 additional such places, petitioner asserts that the respondent 

understood that mining excessive widths would not be tolerated and 

the listing of the additional places would simply have been an exercise in futility. Further, although there were uduck nests" in the 

places cited, petitioner maintains that the inspector made actual 

measurements of the wide places, but did not include any part ·of a 

d.uck nest in his measurements. Regarding the Inspector's Manual 

provision defining "excessive 11 widths, petitioner argues that the 

roof-control plan is controlling and the Inspector's Manual reference 

is only relevant when weighing the gravity of the violation. 

Petitioner points out that the excessive widths were not caused 

by rib sloughing and the inspector believed they resulted from a 

practice in the unit in question to mine areas at excessive widths, 

and considering the fact that the inspector observed some 16 places 

with excessive widths, and it took 18 to 25 timbers to abate the 

four places described in the order, petitioner maintains there was a 

practice of being indifferent about the excessive width problem on 

the part of the respondent, and the face boss told the inspector 

that· the problem resulted because the cutting machine operator on 

the second shift was prone to cut too wide. 

Respondent's Arguments 

In its posthearing brief, respondent argues that petitioner 

failed to establish a violation of section 75.200. While conceding 

that its roof-control plan restricts the widths of entries and crosscuts to 20 feet, respondent arg1:1es that its plan does not indicate 

that widths greater than 20 feet are excessive. Citing section 

75.201, which provides that the method of mining followed in a mine 

13 
shall not expose miners to unusual dangers from roof falls caused by 

excessive widths of rooms and entries, respondent asserts that the 

record is devoid of any "unusual dangers from roof falls" attributable 

to openings or widths beyond those specified in its plan. Further, 

respondent cites petitioner's 1974 Inspector's Guidelines, which define 

the term "excessive" as "12 inches or more" than the planned opening 

width and argues that the facts adduced, when applied to the section 

75.201 definition of "excessive" and the Inspector's Guidelines, cannot support a finding that excessive widths existed at the mine as 

charged in the citation. Respondent also argues that the wide areas 

cited resulted from "duck nests," which in respon.dent 's opinion, are 

normal conditions caused by the cutting machine. 

I find that the preponderance of the evidence adduced in this 

proceeding supports a finding of a violation of section 75.200. It 

is clear from the evidence presented, that the widths of the entries 

and crosscuts cited by the inspector were driven in.widths in excess 

of the approved roof-control plan. It is also clear that the failure 

to comply with the roof-control plan constitutes a violation of section 75. 200. Peabody Coal Company, 8 IBMA 121 (~1977). Respondent's 

suggestion that the inspector's measurements are suspect is rejected. 

I fail to underst'{l.nd how one can calibrate a tape measure, as suggested by respond~·nt' and .respondent was free to take its own measurements, but did not do so. Respondent's personnel assisted the 

inspector in taking his measurements and I find the inspector's 

testimony regarding those measurements to be credible. Respondent's 

assertion that the wide places measured by the inspector resulted from 

"duck .nests" caused by the cutting machine bar is likewise rejected. 

Respondent concedes that the measurements were made in the general 

vicinity of the duck's nests and the inspector's testimony that he 

was careful to avoid the duck nests while making his measurements, 

stands unrebutted. Under the circumstances, I find that the inspector's measurements as stated in his order, were accurate and that 

petitioner has established that the wide places did, in fact, exist 

as stated on the face of the order. 

Respondent's reliance on the cited Inspector's Manual instructions and guidelines regarding the interpretati9n of the term "excessive widths" as a defense to the citation, is rejected. The Inspector's Manual does not have the force and effect of law or a mandatory 

standard and is not controlling. Here, the roof-control plan and 

provision with regard to the widths of the areas cited is controlling 

and any deviation from that provision is a violation not only of the 

plan, but also of section 75.200, Even if the Inspector's Manual 

reference at 75.201-l(Exh. R-5) were deemed to be controlling, it 

seems clear to me that the inspector followed t,he exception noted 

which states: "[I]f it is evident that ·excessive widths are prevalent and are caused by poor mining practices, a violation shall be 

cited." In this case, it is clear from the inspector's testimony 

that he believed the excessive widths resulted from poor mining practices in that the cutting machine operator consistently failed to 

14 
cut straight entries and crosscuts and that mine management failed to 

insure.that the marked-out areas were, in fact, cut straight. Respondent's own witness conceded that wide entries were, in part, due to 

poor mining practices. Further, although not detailed in his order, 

the inspector cited numerous other locations where the entries and 

crosscuts were driven too wide and it is obvious to me from his testimony that he believed the excessive widths which he found on the day 

of his inspection were prevalent, were caused by bad mining practices 

on that day, and that the area cited was not adequately supported. 

While it may have been better for the inspector to have included these 

other areas in his order, the fact that he did not, does not detract 

from his unrebutted testimony and findings made at the time the order 

issued. 

Size of Business and Effect ef Penalty Assessment on the Respondent's 

Ability to Remain in Business 

The parties have stipulated that the respondent is a large coal 

mine operator and that any civil penalty assessed by me in this matter 

will not. adversely affect its, ability to remain in business, .and I 

adopt these stipulations as ·my findings in this regard. 

Good Faith Comphance 

The inspector's conclusion that the respondent demonstrated lack 

of good faith in abating the conditions cited is rejected. In support of his conclusion in this regard, the inspector testified that 

100 roof-support timbers had to be set to abate the conditions cited 

and that due to a mine foremen's "strike" or work stoppage, adequate 

personnel were not available to do the work. However, it is clear 

that the 100 timbers were, in fact, required to support not only the 

areas cited, but the additional areas which concerned the inspector 

and which the respondent was required to abate before he would terminate the order. Thus, it is clear that substantial work had to be 

performed before termination of the order occurred. As for the work 

stoppage by the foremen, while these individuals are part of mine 

management, there is no evidence that the work stoppage was, in fact, 

condoned by the mine superintendent or that it took place for the 

purpose of avoiding compliance. That work stoppage apparently took 

place because the foremen believed MSHA's enforcement practices with 

respect to the issuance of unwarrantable failure violations were 

unjustified and reflected on what they perceived was an attack on 

their job performance. Aside from the merits of that controversy, I 

take note of the fact that the work ~toppage subsequently resulted 

in a meeting with local MSHA district enforcement officials for the 

purpose of discussing the matter' further and there is no evidence 

that the respondent subsequently failed to make a diligent effort to 

comply. Given the circumstances presented, I cannot conclude that 

the time taken to abate (2 days) was untimely or an indication of a 

lack of good faith. The affected area was closed by the order and 

15 
the inspector himself recognized that no men were available to do the 

work and he did not specifically fix any time for abatement since his 

order effectively closed down the area where excessive widths were 

being driven. Further, while the respondent could have taken the 

position that it was only required to install enough additional roof 

support to abate ~he specific areas cited by the order, it did, in 

fact, install all of the additional roof support as required by the 

inspector in the other areas which concerned him and it obviously did 

so to terminate the order so that production could resume. In view of 

the totality of the circumstances which prevailed at the time in question, I conclude and find that the respondent exercised normal compliance once the order issued and should not be pena.lized further by 

adopting petitioner's suggestion that it exhibited a lack of good 

faith in abating the conditions once the order issued. 

Negligence 

Respondent's suggestion that the wide areas cited resulted from 

"duck nests 11 created by the machine operator and that the respondent 

cannot be held accountable for this practice, is rejected. As indicated earlier, the inspector took into consideration the existence of 

duck nests, but h~ specifically stated that the measurements he made 

were of the wide e'ntries and crosscuts. Further, he specifically 

stated that the mining widths are controlled underground by the face 

boss marking the required widths of the cuts and that in the event the 

cutting machine operator is wide of those marks, it is the responsibility of the face boss to take corrective action on the scene to 

insure that the areas are cut as marked and in accordance with the 

roof-control plan. I agree with these observations by the inspector 

and I find and conclude that on the day in question, the wide areas 

cited were caused by the failure of the cutting machine operator to 

cut within the areas apparently marked out by the face boss and that 

with a little more attention on his part, the conditions cited could 

have been prevented. Respondent admitted that the conditions cited 

were, in part, caused by poor mining practices and resulted from 

"likely errors" on the part of the machine operator. In the circumstances, I find that the violation cited resulted from the respondent 1 s failure to exercise reasonable care to prevent or correct the 

conditions which it knew or should have known existed and that this 

failure on its part constitutes ordinary negligence. I find nothing 

in the record to support any conclusion that respondent recklessly 

and deliberately caused the conditions cited. 

Gravity 

Respondent's proposed finding that the violation cited was nonserious is rejected. The inspector was in the mine on the day his 

order issued for the purpose of investigating a roof fall which had 

occurred in an area where the mining width was approximately 18 feet. 

He was concerned over the fact that the cutting of entries and crosscuts at widths.more than that called for by the roof-control plan 

16 
would, over a period of time, likely weaken the roof and cause 

another possible roof fall, unless additional roof support was 

installed in those areas. Considering all of the wide places which 

he found during his inspection, I cannot disagree with the inspector's conclusions in this regard. Although it is true that the roof 

areas in question were bolted in accordance with the roof-control 

plan, the fact is that the inspector testified the roof sounded 

drummy and he believed additional support was required to compensate 

for the wide areas cited. In the circumstances, the failure of the 

respondent to follow its roof-control plan by cutting wide entries 

and the failure to install additional roof support was serious and 

presented a potential for additional roof falls in the cited areas. 

I find that the violation was serious. 

History of Prio~ Violations 

Petitioner introduced a computer printout of the prior history of 

violations pertaining to the Sinclair No. 2 Mine (Exh. P-6). That 

history reflects a total of 145 paid violations for that mine during 

the period January 1, 1970, to April 4, 1977. During that same period 

of time, the history for the operator/controller tKennecott Copper 

Corporation) reflects a total of 857 paid violations. 

Respondent contends that at the time the order issued on 

October 18, 1977, the history of violations attributable to the 

respondent should be "zero" since on July 1, 1977, the corporate 

stock of Peabody Coal Company had been sold by Kennecott Copper 

Corporation, the prior owner, to Peabody Holding Company, the present 

owner. Respondent points to the fact that the mine was previously 

owned by the Kennecott Copper Corporation and that the ownership 

period, as reflected on the face of the printout, ended on June 30, 

1977. At the time of the violation in question, respondent argues 

that the Peabody Holding Company (PHC), and not Kennecott, was the 

controlling company, and that petitioner has introduced no evidence 

respecting the prior history of violations attributable to PHC, 

Since petitioner has listed .. only those violations attributable to 

Peabody Coal Company when it was owned by Kennecott, and since MSHA's 

Office of Assessments recognized the fact when a mine is sold to a 

new operator, that new operator starts out with a "clean slate" (Tr. 

251), respondent asserts that petitioner is now estopped from arguing 

the contrary. Further, respondent argues that significant management 

changes were made in Peabody Coal Company after the sale of that company by Kennecott to PHC on July 1, 1977, including most directors, 

many officers, the president, and the chief executive officer, and 

that such changes were doubtlessly deemed to be an improvement over 

the prior management arrangement. In the circumstances, respondent 

argues that the prior history, as reflected in the printout, should 

not be considered as part of its prior history of violations, insofar 

as any assessment of the instant vio.lation is concerned, and any 

penalty assessed must reflect a "zero" history. 

17 
Petitioner points out that since the effective date of the 1969 

Act until July 1, 1977, the corporate stock .of the Peabody Coal Company was owned by Kennecott Copper Corporation. On July 1, 1977, the 

corporate stock of the Peabody Coal Company was sold to Peabody Holding Company, which became the new owner of the Peabody Coal Company 

since the holding company, in fact, became the new owner of the 

corporate stock of the Peabody Coal Company. Peabody Coal Company is 

a wholly-owned subsidiary of the holding company and is its only asset. 

Petitioner argues that while corporate stock changes owners, the 

liability of the corporation remains constant and intact. Here, petitioner argues that the mine was not, in fact, sold to a new operator, 

only the corporate stock was sold, and Peabody Coal Company and its 

assets remained intact. 

After full consideration of the arguments presented, I conclude 

and find that on the basis of the record here presented, petitioner 

has the better part of. the argument, and its proposed finding on this 

issue is adopted as my finding, and respondent's arguments to the 

contary are rejec~ed. I find that the prior history of the Peabody 

Coal Company, as r~flected in the printout, and n,ptwithstanding the 

transfer of stock, ~ay be considered by me in assessing a civil pen-

. alty in this matter. While respondent alluded to certain management 

changes at the uppermost levels of the holding company, the fact is 

that there is no evidence that mine management has undergone any 

changes, that the holding company is, in fact, the present owner of 

Peabody Coal Company, that the company is, in fact, its sole asset, 

and that there has been a continuity of operation of the mine in 

question, and that the only change has been in the sale of stock. 

While it may be true that MSHA's Assessment Office considered that 

. an actual change in mine ownership had taken place, I am not bound by 

that fact, and based on previous proceedings involving the manner in 

which the Assessment Office evaluates any given citation at any given 

time, I doubt whether that office made other than a cursory evaluation 

of the question. 

On the facts presented in this proceeding, I find that the prior 

history of violations with respect to the mine in question, when 

viewed in light of the size of Peabody's total coal mining operations, 

does not constitute a significant prior history of violations, and 

that fact is reflected in the penalty assessed by me in this matter. 

The same can be said for the prior history of Kennecott's overall 

total history as reflected in the printout. For an operation of its 

size, I cannot conclude that the 145 paid violations over a period in 

excess of 6 years for the mine, or the 857 violations over that same 

period for the size of Kennecott's mining operations can be said to 

be significant. 

Fact of Violation--30 CFR 75.1400 

The pertinent part of the mandatory safety standard cited in 

Order No. 1 PML (7-166) on December 30, 1977, reads: "[W]here persons 

18 
are transported into, or out of a coal mine by hoists, a qualified 

hoisting engineer shall b.e on duty while any person is underground, 

* * *·" 

Petitioner's Arguments 

Regarding the hoist violation, petitioner concedes that due to a 

nationwide mine strike, only management and supervisory personnel were 

working at the mine. Although there was an emergency drop cage hoist 

in the intake shaft which requires an engineer on the surface to operrate it, petitioner argues that the slope hoist, located in the 

designated escapeway, is the only other means of entering and exiting the mine, and that persons normally ride into and out of the mine 

to change shifts by use of that hoist, and· it is also used to get 

miners and supplies underground. The hoist is operated by a cable on 

a hoist drum; the cable attaches to an automatic brake and other cars, 

and the cars are dropped down into the slope or pulled up out of the 

slope to the mine portal. The cars are on a track, and normally two 

cars, including the brake car, can convey 30 to 40 persons in each car 

into and out of the mine. The hoist does not have an automatically 

operated cage, platform or elevator, and normally there is a qualified 

hoistman in the house 24 hours a day when coal is being produced, or 

the normal maintenance shift is employed. The cars were on the surface when the inspector made his inspection, and injured persons have 

been taken out of the mine by being hauled up the slope by the hoist 

and car. 

Although it is true that the men who were underground may have 

walked down the slope in the mine, the slope was wet, muddy and icy, 

and an injured person could not be carried out on a stretcher without riding on the cars with the use of the hoist. Regarding the man 

who was supposedly 11 on duty," petitioner points out that it took the 

foreman an hour to get to the surface once he was called from underground, and the other man lived 5 or 6 miles from the mine. As for 

the definition of the term."hoist, 11 petitioner cites the definitions 

of that term as used in Webster's Dictionary and 5ulletin 95, A 

Glossary of the Mining and Mineral Industry, and points out that the 

mechanics of the hoist device in question qualifies it as a hoist as 

that term has always been considered in the mining industry. Further, 

the fact that a vertical cage or bucket is not involved is immaterial 

argues petitioner, since the standard language "other such equipment" 

includes the hoist device in question. 

Finally, petitioner argues that the fact that persons went underground without the use of the hoist, does not matter since persons 

are transported underground in the mine by the hoist and while anyone is underground, a hoist engineer must be on duty, and the slope 

must be available as long as anyone is in the mine. 
Respondent's Arguments 

Respondent argues that on the day the citation issued, due to a 

strike, no union personnel were in the mine, but three management personnel were underground. These three individuals walked into and out 

of the mine without using a device usually employed for transporting 

men and material into and out of the mine, namely, a track-mounted 

car or set of cars to which is attached a cable with the other end 

of the cable attached to a drum on the mine surface. Respondent 

asserts that this device is used principally for the haulage of 

materials and supplies, although it is also used to transport men 

during normal production shifts, and the hoisting engineer is usually 

a union employee. The mine slope entrance descends some 730 feet at 

a slope of some 16 degrees and has handrails and a walkway to facilitate walking iu"to and out of the mine. Since the legislative history 

of section 314(a) of the 1969 Act, the statutory counterpart of section 75.1400, intended the standard to apply only where men are regularly transported in and out of the mine by hoist, respondent submits 

that persons were not being transported into or out of the mine with 

any degree of reg:μlarity be'cause the third shift customarily walked 

into and out of the mine without the use of the personnel transport 

device as they did on the day in question. Thus, as to the third 

shift, particularly during the strike, respondent asserts that the 

hoist was not customarily or regularly used for the transportation 

of personnel. Since persons were not being transported into or 

out of the mine on the third shift with any degree of regularity, 

respondent maintains that no violation occurred. 

Finally, respondent argues that the term "hoist" is not further 

defined and that Congress intended section 75.1400 to apply to those 

instances in which a hoist is the sole or principal means of entering 

and exiting a mine, and that since the s'tandard speaks of 11 hoisthand~ing platforms, cages, and elevators," respondent submits that 

the type of hoist to which Congress was addressing itself is a 

device designed to lift persons in a more or less vertical fashion 

from the depths of a coal mine. Also, since the device in question 

was not in use, the mine was not one "where persons are transported 

into or out of a coal mine'~ by a hoist, because the word "where" connotes more than merely location and may be used to indicate the situation or circumstances to which relates the remainder of the clause 

in which 'the word "where" is used. And, respondent asserts that it 

has steadfastly maintained that the last sentence in section 75.1400 

refers to situations in which persons are transported into or out of 

a mine, rather than a location at which persons are sometimes transported into or out of the mine. Further, since the evidence shows 

that a qualified engineer was on the surface and near the "hoisthouse11 and since a qualified hoisting engineer, who is on a 24-hour 

call, was only 6 minutes from the mine at the time the order issued, 

respondent maintains that a qualified hoisting engineer was "on duty" 

20 
within the meaning of section 75.1400, and respondent cites the testimony of the inspector who considered a man to be "on duty" when he 

is 5 or 6 minutes from the hoist house. 

It is clear from the evidence adduced in this proceeding that 

the hoisting device in question is, under normal circumtances, used 

to transport men and materials underground. In such circumstances, 

it is also clear to me that section 75.1400 requires that a qualified hoisting engineer be on duty while anyone is underground. On 

the facts presented in the instant case, it is clear that on the day 

in question, the three management individuals went underground by 

walking down the slope incline and the hoist was not used because 

the mine was idle due to a strike. Aside from the requirement in 

section 75,1704-l(b), which provides that escape shafts include 

elevators, hoists, cranes, or other such equipment, and that they 

be manned by an attendant during coal-producing or maintenance 

shifts, I find nothing in section 75.1400 that requires a mine operator to use any hoisting device to transport men or supplies underground. Nor do I find anything in that standard which requires an 

operator to install such a hoist or to have it available for the 

transportation of men to the surface in the event of emergencies. 

Except for a drop cage hoist in the intake shaft, which is used 

in emergencies and requires an engineer on the surface to operate, 

the slope in question is the only means of entering and exiting the 

mine. Petitioner's proposed interpretation of section 75.1400, if 

accepted, would require an operator to maintain the slope hoisting 

device in question operational at all times when miners are underground. Thus, if an operator decides to close the device or car 

trips down for maintenance, and the men walk in and out of the mine 

for any given shift while the device is inoperative, petitioner 

seemingly would require a qualified hoisting engineer to be on duty. 

In my view, such a result is not only illogical, but I can find no 

authority in any mandatory standard for such a requirement. Here, 

the evidence establishes that the slope in question was an escapeway and was so designated on the mine map. In the circumstances, 

since petitioner's arguments in support of its interpretation of the 

standard focus on the fact that the lack of a qualified engineer 

would not permit the expeditious removal of a miner in the event of 

an emergency, it seems to me that the inspector should have cited 

sections 75.1704 or 75.1704-1 which req~ire that escapeway slopes 

be maintained in safe condition to allow quick escape of miners in 

the event of emergencies, and that an attendant be on the surface 

in a position to hear or see a signal for the use of the hoist and 

who be readily available to operate it. 

After careful consideration of the arguments presented, including the facts and evidence adduced in this proceeding, I conclude 

that respondent's proposed interpretation and application of section 75.1400 is correct and petitioner's arguments and proposed 

21. 
interpretation and application are rejected. I find that the 

critical·phrase "where persons are transported into, or out of a 

coal mine by hoists, a qualified hoisting engineer shall be on duty 

while any person is underground, * * *" as applied to the facts of 

this case, refers to the circumstances in which persons are transported into or out of a mine, rather than the location at which 

such transportat~on is had. Under the circumstances, since the 

management personnel in question were not transported underground 

by means of the hoisting device in question, I conclude that section 75.1400 is inapplicable and that petitioner has failed to 

establish a violation. 

It is clear from the citation issued by Inspector Lyle that he 

was concerned over the fact that no one was on the surface to attend 

the hoist while persons were underground in the event an emergency 

should arise to withdraw such persons from underground, and petitioner's proposed interpretation and application of the cited stan-· 

dard is consistent with the language of the order. However, as 

concluded above, I believe the standard is inapplicable to the facts 

presented, and that the inspector should have cited sections 75.1704 

or 75.1704-l(b)~ If petitioner believes those sections are inapplicable, then it should consider promulgating a safety standard to 

cover circumstances such as those presented in this case. 

With respect to the question of whether the device used to transport men in and out of the mine was,· in fact, a ''hoist" within tbe 

meaning of section 75.1400, 1 conclude that it was, and I adopt petitioner's proposed findings and conclusions as the basis for this 

conclusion. The fact that the device was not a platform, cage, or 

elevator, and did not move in a vertical fashion, is immaterial as 

correctly argued by the petitioner. The mechanics and workings of the 

transportation device in question, including the definitions cited by 

the petitioner, including the phrase "or other devices used to transport persons" support petitioner's position on this issue. However, 

since I have found the cited section to be inapplicable, this issue 

is moot. 

In view of the foregoing, I conclude and find that the cited 

standard is inapplicable to the conditions cited by the inspector, 

and that the petitioner has failed to establish a violation of section 75.1400. Accordingly, the petition for assessment of civil penalty, insofar as it seeks a civil penalty assessment for the section 

104(c:)(2) order, Citation No. 7-0166, December 30, 1977, is dismissed. 

Penalty Assessment and Order 

In view of my findings and con~lusions made with respect to the 

section 104(c)(2) order issued October 18, 1977, Citation No. 7-0127, 

I find that a civil penalty in the amount of $4,000 is appropriate in 

22 
the circumstances presented, and respondent is ordered to pay that 

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

t 

/~/!.if~ Administrative Law Judge 

Distribution: 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

Thomas F. Linn, Esquire, P.O. Box 235, 301 North Memorial Drive, 

St. Louis, MO 63166 (Certified Mail) 

Standard Distribution 

23 

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. 

SUNSHINE MINING COMPANY, 

Respondent 

March 27, 1979 

. . ' 

Civil Penalty Proceeding 

Docket No. DENV 78-569-PM(A) 

A.O. No. 10-00089-05002 

Sunshine Mine 

DECISION AND ORDER 

Appearances: Joseph Walsh, Trial Attorney, Department of Labor, 

Office of the Solicitor, Arlington, Virginia, for 

the petitioner; 

Piatt Hull, Esquire, Wallace, Idaho, for the 

respondent. 

Before: Judge Kennedy 

On March 21, 1979, the captioned matter came on for an 

evidentiary hearing in Spokane, Washington. After carefully 

reviewing and considering the testimony and documentary evidence, 

the Presiding Judge found that the Secretary had failed to 

establish by a preponderance of the evidence that: 

1. On the night shift on April 11 or the day shift 

on April 10, the operator endangered the safety 

of the miners by any lack of diligence or due care 

in the furnishing of ground support on the hanging 

wall of the 5215 Stope. 

2~ That the violation .. of 30 C.F .R. § 57 .3-22 charged 

did not, therefore, occur. 

Accordingly, it was ordered that the petition for assessment of a 

civil penalty be dismissed with prejudice. 
The premises considered, it is ORDERED that the bench decision 

and order of March 21, 1979, _be, and hereby are, CONFIRMED and that 

the imminent danger closure order 347008 issued April 12., 1978 be, 

and hereby is, VACATED. 

Issued: March 27, 1979 

Distribution: 

Piatt Hull, Esq., Hull and Hull Chartered, P.O. Box 709, Wallace, 

ID 83873 (Certified Mail) 

Joseph Walsh, Trial\Attorney, Office of the Solicitor, U.S. Department of Labor, 401.S Wilson Blvd., Arlington, VA 22203 

2 
FEDERAL MINE SAFETY AND HEALTH REVl.EW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

40.15 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SUNSHINE MINING COMPANY, 

Respondent 

March 27, 1979 

Civil Penalty Proceeding 

Docket No. DENV 78-568-PM(A) 

A.O. No: 10-0089-05003 

Sunshine Mine 

DECISION AND ORDER 

Appearances: Joseph Walsh, Trial Attorney, Department of Labor, 

Office of the Solicitor, Arlington, Virginia, for 

the petitioner; 

Piatt Hull, Esquire, Wallace, Idaho, for the 

respondent. 

Before: Judge Kennedy 

On March 21, 1979, the captioned matter came on for an 

evidentiary hearing in Spokane, Washington. After hearing the 

witnesses and considering the documentary evidence the Presiding 

Judge rendered a bench decision in which he concluded that on the 

basis of a preponderance of the credible evidence: 

1. The ground on the hanging wall in the J-8 Stope was 

loose and inadequately supported on the afternoon of 

April 6, 1978, a violation of the mandatory safety standard 

set forth in 30 C.F.R. § 57.3-22. 

2. That the violation was extremely serious in that it 

posed a real and potential danger to life and limb. 

3. That the condition was one that was known to the operator 

based on the imputed knowleQge of Mr. Rudd, the Production 

Foreman responsible for the J-8 Stope. 

4. That Mr. Rudd's failure to correct the condition was 

the result of a high degree of ordinary negligence_. 
Thereafter and after considering the other statutory criteria, including the fact that this was first offense, the Judge determined 

that the amount of the penalty warranted and that best calculated 

to deter future violations and ensure voluntary compliance was 

$5,000.00. It was ordered, therefore, that for the violation found 

the Sunshine Mining Company pay a penalty of $5,000.00 within ten 

(10) days. 

The premises considered, it is ORDERED that the bench decision 

and order of March 21, 1979, be, and hereby are, CONFIRMED and that 

respondent pay a penalty of $5,000.00 on r before Saturday, March 31, 

1979. 

Judge 

Issued: March 27, \.{.979 

Distribution: 

Piatt Hull, Esq., Hull and Hull Chartered, P.O. Box 709, Wallace, 

ID 83873 (Certified Mail) 

Joseph Walsh, Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

2 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGIN IA 22203 

MAR 2 8 1979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

·Petitioner 

v. 

FLORIDA CRUSHED STONE CO., 

Respondent 

Docket No. BARB 78-648-PM 

A.C. No. 08-00024-05001 

Docket No. BARB 78-649-PM 

A.C. No. 08-00024-05002 

Brooksville Gay Quarry 

DECISION 

Appearances: Leo J. McGinn, Esq., Office of the Solicitor, Department of Labor, for Petitioner; 

Mary L. Applegate, Esq., Holland & Knight, Tampa, 

Florida, for Respondent. 

Before: Administrative Law Judge Michels 

The above-captioned civil penalty 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 Mine Safety and Health Administration 

(MSHA) filed petitions for the assessment of civil penalties on 

August 24, 1978, alleging that the Respondent committed certain violations of Chapter 30 of the Code of Federal Regulations. On 

September 27, 1978, Respondent filed its answers contesting the violations. A hearing was held in Tampa, Florida, on February 6, 1979, 

at which both sides were represented by counsel. The two dockets 

were consolidated for the purpose of hearing and decision (Tr. 81). 

At the beginning of the hearing, MSHA counsel requested approval 

of settlements for the full assessed amounts for Citation Nos. 092811, 

alleging a violation of 30 CFR 56.14-1 assessed at $140; 092815, 

alleging a violation of 30 CFR 56.12-8 assessed at $106; and 092827, 

allegi~g a violation of 30 CFR 56.6-42, assessed at $66. These citations are all in Docket No. BARB 78-648-PM. MSHA counsel asserted 

that in light of the statutory criteria and the factu.al circumstances 

involved in these three citations, he felt such settlements were appropriate (Tr. 6). Respondent's counsel concurred with this assessment 

(Tr. 7). After reviewing the oral representations by both parties, 

the settlements were approved by the.undersigned. Accordingly, I 

hereby AFFIRM my approval of those settlements. 
Follo.wing this, both parties presented evidence regarding the 

eight citations which alleged violations of 30 CFR s·6. 9-87 (Tr. 21, 

44, 53, 61, 68, 78, 88, 91). This regulation requires mobile heav)rduty equipment must be provided with audible warning devices. On 

the basis of the evidence presented, and in light of the statutory 

criteria, a decision was made from the bench to assess Citation Nos. 

092808, 092809, 092820, 092824, 092825 in Docket No. BARB 78-648-PM; 

and Citation Nos. 092829 and 092830 in Docket No. BARB 78-649-PM at 

$100 each. Citation No. 092818 in BARB 78-648-PM was assessed for 

$200. 

The following finding.s of fact were made as to each citation: 

1) There was, in fact, a violation as admitted; 

2) The operator is at least medium or medium-to-large in size; 

3) The penalties assessed would not affect the operator's 

ability to continue in business; 

4) There is no h~story of previous violations; 

\ 

5) The operator took steps to rapidly comply after notification 

of the violation; 

6) The operator was negligent; 

7) The violation was serious. 

(Tr. 115-119). The decision finding eight violations of 30 CFR 

56.9-87 and assessing a total penalty for these violations of $900 

is hereby AFFIRMED. 

After issuing a decision from the bench on the eight violations 

of 30 CFR 56.9-87, as discussed above, MSHA counsel advised that the 

parties had negotiated a settlement of the remaining citations 

involved in these proceedings for the full amounts of the original 

assessments (Tr. 121). Since t.here had been no unwarranted lowering 

of the proposed penalties, and such a disposition assured adequate 

protection of the public interest, this settlement was accepted. 

Accordingly, I hereby AFFIRM these additional settlements for the 

amount of $2,236. 

In summary, the amount of $3,176 has been assessed for Docket 

No. BARB 78-648-PM and $272 has been assessed for Docket No. BARB 

78-649-PM. 

2 
It is ORDERED that Respondent, within 30 days of the date of 

this decision, pay the total penalties of $3,448 assessed in these 

proceedings. 

cfa.~dlut/~ Franklin P. Michels 

Administrative La~ Judge 

Distribution: 

Leo J. McGinn, Esq., MSHA Trials Branch, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

VA 22203 

Mary Applegate, Holland & Knight, P.O. Box 1288, Exchange 

National Bank Building, Tampa, FL 33601 (Certified Mai°l) 

3 

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. 

C F & I STEEL CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 77-79-P 

A/O No. 05-02820-02004 

Maxwell Mine 

STAY ORDER 

The effective date of my decision in the above-case is hereby 

STAYED pending a ruling on a motion for reconsideration. 

~C:2:~/Q' Administrative Law Judge 

Entered: March 29, 1979 

Distribution: 

Leo J. McGinn, Esq., MSHA, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Richard L. Fanyo, Esq., Welborn. Dufford, Cook & Brown, 

1100 United Bank Center, Denver, CO 80290 (Certified Mail) 

Administrator for Caal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

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), 

On behalf of: 

DAVID PASULA, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Application for Review of 

Discrimination 

Docket No. PITT 78-458 

Montour No. 10 Mine 

STAY ORDER 

The effective date of my decision in the above case is hereby 

STAYED pending a ruling on a motion for reconsideration. 

Entered: March 29, 1979 

Distribution: 

~e:&~/~ Charles C. Moore, Jr. 

Administrative Law Judge 

Eddie Jenkins, Esq., MSHA, Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Anthony J, Polito, Esq., Rose, Schmidt, Dixon, Hasley, Whyte & 

Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified Mail) 

Alan B. Mollohan, Esq., Rose, Schmidt, Dixon, Hasley, Whyte & 

Hardesty, 818 Connecficut Avenue, NW., Washington, D.C. 20006 (Certified 

Mail) 

Kenneth J. Yablonski, Esq., 505 Washington Trust Building, 

Washington, PA 15301 (Certified Mail), 
• 

\ 

\ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINlSTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

March 29, 1979 

SECRETARY OF LABUR, C.ivil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No .. VINC 79-67-P 

A.O .. No .. 12~00336-02007F 

Squaw Creek Mine 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Robert A. Cohen, Trial Attorney, Department of Labor, 

Office of the Solicitor, Arlington, Virginia, for 

the petitioner; 

Thomas F. Linn, Esq .. , St .. Louis, Missouri, for the 

resp,ondent. 

Judge Koutras 

Statement of the Proceedings 

This proceeding concerns a petition for assessment of civil 

penalty filed by the petitioner against the respondent on 

November 30, 1978, pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 u .. s .. c .. § 820(a), charging tne 

respondent with two alleged mine safety violations issued pursuartt 

to the 1969 Federal Coal Mine Health and Safety Act. Respondent 

filed a timelyanswer in the proceeding, asserted several factual 

and legal defenses, and a hearing was held in Evansville, Indiana, 

on January 31,1979. The parties filed proposed findings and conclusions and a brief, and the arguments contained therein have been 

considered by me in the course of this decision .. 

Issues 

The principal issues presented in these proceedings are (1) 

whether respondent has violated the provisions of the Act and 

implementing regulations as alleged in the petition for assessment 

of civil penalty filed in these proceedings, and, if so, (2) the 

appropriate civil penalties that should be assessed against the 
respondent for each alleged violation, based upon the criteria set 

forth in section llO(i) of the Act. Additional issues raised by 

the parties are identified and disposed of in the course of this 

decision. 

In determining the amount of a civil penalty assessment, section 

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

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

(3} whether the operator was negligent, (4) the effect on the operator's ability to c.ontinue in business, (5} the gravity of the vioation, 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 Coal Mine ··Health and· Safety Act of -1969, 

30 u.s.c. § 801 ~ ~·, now the Federal Mine Safety and Health Act 

of 1977, P.L. 95-164, effective March 9, 1978. 

2. Section.$, 109(a)(l) and (a)(3} of the 1969 Act, 30 u.s.c. 

§§ 819(a)(l) and (a)(3), now section llO(i) of the 1977 Act. 

_Stipulations 

The parties stipulated to the following (Tr. 4-5}: 

1. The jurisdiction of the presiding Judge. 

2. Respondent is a large coal mine operator and any civil penalty imposed will not affect its abi~ity to remain in.business. 

3. During the period in question in this proceeding, the Squaw 

Creek Mine employed approximately 220 miners and daily coal production was 5,000 tons. 

Discussion 

The alleged violations and applicable mandatory safety standards 

in issue in this proceeding are as follows: 

Notice 104(b) 1 FCW, April 20, 1977, issued by mine inspector 

Fred c. Wheatley, alleges a violation of 30 CFR 77.1710(g) and states 

as follows: 

A fatal fall of person accident occurred at 9 p.m., 

April 19, 1977. The victim was performing repair work on 

a 5 ton capacity overhead hoist in the Model 1360 Bucyrus 

Erie dragline at pit ID 001 while standing on top of drag 

2 
drive gear housing where no work platform was provided· 

approximately 16 feet above the floor level. No safety 

belt and line or other safety devices were being used. 

The notice was modified on April 27, 1977, as follows: 

A review of the circumstances surrounding the violation described in 104(b) notice of violation No. 1 FCW 

dated April 20, 1977, indicates the violation occurred 

because of unwarrantable failure on the part of the 

operator. Therefore Notice No. 1. FCW dated April 20, 

1977, is hereby modified as being issued under 104(c)(l) 

instead of 104(b). 

The notice was terminated on April 28, 1977, and the termination 

notice states: 

.. company· safety rule No •. 105(:i) requiring safety belts 

and lines be used as designed has been amended to require 

safety belts and lines anytime when an employee is performing duties when working in an elevated position where a 

work platform is not provided, and has been distributed 

to all employees and posted in conspicuous locations 

throughout the mine. 

30 CFR 77.1710(g) provides as follows: 

Each employee working in a surface coal mine or in 

the surface work areas of an underground coal mine shall 

be required to wear protective clothing and devices as 

indicated below: 

* * * * * * 

(g) Safety belts and lines where there is danger of 

falling; a second person shall tend the lifeline whe~ 

bins, tanks, or other dangerous areas are entered. 

* 

Notice 104(c)(l) 2 FCW, April 20, 1977, issued by Federal mine 

inspector Fred C. Wheatley, cited a violation of 30 CFR 77.1708, and 

states as follows: 

A workman was fatally injureq when he fell approximately 16 feet from the top of the gear case of the drag 

drum gear on the Model 1360 Bucyrus Erie dragline at the 

Pit ID 001. The victim was performing repair work on a 

five ton capacity overhead hoist where no work platform 

was provided and a safety belt and line or other devices 

to protection [sic] a person from falling was being used. 

The operator's program of instructions with respect to safe 

3 
procedures to be followed was not thorough in that the 

safety rules only required that safety belts and lanyards 

be worn as designated. The designated areas were not 

defined and the safety program with respect to safety 

regulations and procedures to be followed at the mine was 

not posted in conspicuous locations throughout the mine. 

Mine management was informed of the provisions of section 

77.1708 Title 30 Code of Federal Regulations and the necessity of a means to protect a person from falling where performing work from elevated positions where a safe work 

platfonn is not provided and the necessity to include a 

safe job procedure in the program of instructions with 

respect to safe job procedures on June 16, 1977. 

The notice was modified on April 21, 1977, to correct the date 

shown on the continuation to the notice (June 14, 1977) to read 

June 16, l21§_. 

The notice was again modified on April 27, 1977, to reflect that 

it was being issued as a section 104(b) notice rather than a 104(c)(l) 

notice on the ground that a review of the circumstances surrounding 

the notice inQicates the violation did not occur because of an unwarrantable failrire by the operator. 

The abatement time was extended on April 28, 1977, and the reasons given for the extension are as follows: 

The operator has amended the job safety rules to 

require all employees to use safety belts and lines when 

performing work from an elevated position. Copies of the 

amendment has [sic] been distributed to all employees and 

posted in conspicuous locations throughout the mine. A job 

safety program has been developed for performing work from 

an elevated position and has been posted at conspicuous 

locations throughout the mine. Said notice is hereby 

extended to allow time to monitor the training program to 

determine if the training program is adequate to satisfy 

the requirements of section 77.1708. 

The notice was terminated on June 1, 1977, and the termination 

notice states that the company safety rules were modified to require 

all persons to.use safety devices when there is a'danger of falling. 

The modified safety rules were posted at conspicuous locations, and 

safety meetings were held with employees with regard to the use of 

such safety devices. 

30 CFR 77.1708 provides as follows: 

On or before September JO, 1971, each operator of a 

surface coal mine shall establish and maintain a program 

4 
of instruction with respect to the safety regulations and 

procedures to be followed at the mine and shall publish 

and distribute to each employee, and post in conspicuous 

places throughout the mine, all such safety regulations· 

and procedures established in accordance with the provisions of this section. · 

Testimony Adduced by the Petitioner 

MSHA inspector Fred c. Wheatley testified be went to the mine on 

April 19, 1977, to assist in the fatal accident report. The mine in 

question is a surface mining operation where the coal is exposed by 

removing the overburden for the purpose of loading and processing the 

coal by use of a large shovel and dragline. He examined the accident 

scene and everything was normal except for a portion of the overhead 

hoisting equipment which had been damaged and the overhead hoist was 

positioned over a large gear case. From information provided by 

people who were·in·a·positioi:l'to kriow, 'it was determined that the· 

victim fell from the bull gear housing or cover, and he was positioned 

on the top of the housing approximately 16 feet from the main floor 

of the machine with another workman who was assisting him in making 

repairs to the h~ist. Mr. Wheatley identified Exhibit P-3 as a sketch 

of the area where\the victim was standing, and indicated that he 

climbed up to the area and took the measurements depicted on a sketch, 

Exhibit P-4. From statements of eyewitnesses, the victim was in the 

process of making repairs to the overhead hoist assembly that had been 

damaged at the time he fell. The victim was not utilizing a safety 

belt or any other safety device to prevent falling. There were no 

handrails or platforms in the innnediate area (Tr. 8-19). 

Mr. Wheatley testified that from information received during his 

investigation it was determined that the victim had previously been 

up on the gear box without using a safety belt and that a supervisor 

stated that he climbed up on the gear housing with two workman to 

assess the hoist damage and that.they did not use safety belts or 

other safety devices. Mr. Wheatley was not able to determine whether 

mine management ever informed the victim that he had to wear a safety 

belt when proceeding to the top of the gear housing, and nothing was 

available to indicate that the victim had ever been instructed at any 

time to use a safety belt with a line attached. In his opinion, a 

safety belt with a line attached could have been utlized by the 

victim while performing his work and there was a place to attach a 

line to a safety belt" directly overhea,d at the hoisting assembly 

which is installed on a track or rail. He also determined that the 

area from where the victim fell was an area where there was a danger 

of falling and from the 6-foot height of the year case, its shape, 

and the configuration of the machine, it was obvious that there was 

a danger of falling. While there was room for someone to place his 

feet to stand, the area was inadequate, in terms of size and shape, 

and the work being performed, for a pla~form (Tr. 19-25). 

5 
Inspector Wheatley testified that safety belts were located on 

the dragliqe. and they were located on the main machine deck or floor 

in a steel drum, he examined the belts and all but one were packed 

in the original packaging, and it did not appear that any of them had 

been used. He determined that the victim was an experienced miner 

and had been assigned to the machine in question for 4 to 5 weeks as 

the second shift operator. Repair work on the machine would be part 

of his normal duties but he did not know if the operator would generally work without direct supervision. After completing his physical 

investigation at the accident scene, an accident investigation hearing was held on April 20, and subsequent to that, he decided to issue 

the violations in question (Tr. 25-28). 

The respondent had a safety program in effect at the time of the 

accident, Exhibit P-7, and safety belts are mentioned and item 105, 

page 5, of the company safety rules provides that "safety belts and 

lanyards shall be worn as designated. 11 However, he was unable to find· 

anY' areas or machines where the. requirement for safety belts were . 

specifically designated as areas where safety belts would be required. 

In his view, the safety rule is inadequate for the purpose of informing a miner where safety belts must be worn because the lack of designations is no reai requirement that belts be used. From statements 

made during his i~yestigation, he could only find one person who 

stated that the use of safety belts with lanyards attached was discussed and this was in the case of a recently employed person during 

orientation. Experienced miners told him they had not been required 

to use belts and lines in installing the hoist that was damaged and 

being repaired at the time of the accident. The victims' immediate 

supervisor suggested a need for caution, but issued no instructions 

as to the use of safety belts arid that the caution may have come not 

more than 3 hours before th·e accident occurred. On one previous 

occasion, an employee working on the construction of a coal hopper 

fell and was injured and the matter was discussed with mine management and a violation of section 1710(g) was issued and this occurred 

in June 1976. The use of a belt. could have greatly reduced the 

severity of the accident fatality which occurred in the instant case 

(Tr. 28-42). 

Mr. Wheatley identified Exhibit P-8 as a statement of the operator1 s policy regarding the use of safety belts published after the 

accident and he believes it makes it clearer. The safety program had 

been published in the form of a company safety rule book and a safety 

manual distributed to supervisory employees. He could find no posting 

of the company's safety program in conspicuous locations du~ing his 

'investigation. He could find no evidence that the accident victim 

had been instructed in the use of a safety belt either shortly before 

the accident or at any time (Tr. 43-46). 

On cross-examination, Mr. Wheatley testified that he had seen the 

company safety rule book (Exh. P-7) prior to the accident. Conflicts 

6 
in.the Federal safety regulations and company.safety rules are 

resolved in favor of the Federal regulations and they are cbnJ;rolling, 

and the company safety rules incorporate applicable Federal a'nd state 

safety laws by reference. He denied that he was informed that the words 

"as designated" used in safety rule 105(i) referred to "as designated 

by federal regulations." In his view, a violation of section 1710(g) 

occurs when a man is not wearing a safety belt where there is a danger 

of falling, and this is true regardless of whether the company 

requires the use of safety belts where there is a danger of falling 

(Tr. 47-57). 

The question of whether or not there is a danger of falling 

depends on the particular location in any given situation, and in 

some situations, this may be at a height of 2 feet. It would also 

depend on how sure the footing is in a par.ticular area, whether there 

is a firm hand hold, or whether grease, mud or ice are present, but 

other safety regulations cover those situations (Tr. 57-59). 

Mr. Wheatley confirmed that he climbed on the gear housing during 

his investigation, got all the way to the top and was wearing a safety 

belt with no difficulty. There was a small amount of grease on the 

housing but it ~~s not a contributing factor. The machine was in 

transit at the time of the accident and was not being used to dig coal 

(Tr. 63). While in transit, the machine became bogged down in loose 

fill and was shut down in order to construct additional firm footing, 

and in the process of coming out of the fill area, the crane broke 

loose from its mooring (Tr. 66). 

Inspector Wheatley confirmed that the section 77.1710(g) violation was originally issued as a section 104(b) citation, but subsequently modified to show it was issued pursuant to section 104(c)(l) 

as an unwarrantable failure, and that the section 77.1708 violation 

was initially issued as a section 104(1)(1) notice, but subsequently 

modified to show it was issued pursuant to section i04(b) (~r. 74-78). 

Inspector Wheatley testified that he measured the distance of 

the fall and was assisted in this task by Mr. Thomas Beulow, an 

engineer, and possibly by Mr. Alan Cook, respondent's employee. Prior 

to his fall, Mr. Woods and his crew were engaged in repairing the 

hoist, but he could not recall whether Mr. Woods was instructed not 

to perform any work on the hoist and to leave it alone •. The master 

mechanic and foreman were not present when Mr. Woods fell. When he 

(Wheatley) climbed to the top of the.housing he observed a sledgehannner and one or two other tools there. Mr. Woods' location prior 

to his fall was established through interviews with witnesses, and the 

information he received indicated that a foreman and another worker 

had climbed up on the gear housing without safety belts shortly prior 

to the accident for the purpose of assessing the damage to the hoist 

and no work was performed at that time (Tr. 79-92). 

7 
Mr. Wheatley stated that the side opposite the one from which 

Mr. Wood~ fell had a guardrail for a portion of the way, and he did 

not require that a platform be constructed on the hazard as part of 

the abatement. He issued the section 77.1708 violation because the 

safety belt rule was not thorough and the mine safety. regulations and 

procedures were not_posted in conspicuous locations throughout the 

mine. The words "as designated" as used in the safety belt rule is 

not complete because of the lack of designations. He did not know 

that mine management had taken the position that the words "as designated" referred to the Federal regulations. With respect to the 

posting of the safety rules, he checked the bulletin boards near the 

changehouse, the one in the office, and the one in the shop, but he 

was not sure about others~ He was looking for something that would 

suffice as a safety program, and simply posting the yellow company 

safety rule book would not suffice to meet the requirements of section 77.1708. However, he would have to conduct further research 

to determine what would suffice at the particular mine in question 

(Tr. 93-110). . 

Mr. Wheatley identified Exhibit R-10 as a booklet containing the 

Federal standards and the company rules. The booklet is customarily 

posted on the m~ne bulletin boards, but he was unable to find it 

posted on the three bulletin boards be examined. He could not recall 

examining the bulletin board on two case loading machines, or the ~ones 

at the tipple, the 7W dragline, the 191 shovel, or the 5760 shovel. 

He did recall examining other bulletin boar.ds, but could not recall 

which ones. Although he inspected the dragline during its erection, 

he did not do so prior to the accident while it was being moved (Tr. 

113-121). 

Inspector Wheatley testified that he had some knowledge of the 

safety contact program at the mine but was not familiar with the use 

of exception reports (Tr. 123). 

On redirect, Mr. Wheatley identified the accid.ent report of 

investigation which was· prepared and the cause of the accident is 

shown as "a failure of management to require workman to wear safety 

belts where there is a danger of falling" (Exh. P-10; Tr. 131). He 

testified that circumstances such as the work position, type of 

terrain· or objects below, and the configuration of the general area 

would be considered in determining whether there is a danger of 

falling in any given instance. He does not believe that MSHA policy 

dictates that he designate mine areas• where there is a danger of 

f alliag and he has never requested mine management to put up signs 

designating such areas (Tr. 132-134). 

In response to questions from the bench, Mr. Wheatley stated that 

it was never determined why Mr. Woods was not wearing a safety belt, 

but he believed he would have worn one had he been specifically 

instructed to do so. The work P.latform that was constructed at the 

8 
point from which Mr. Woods fell was subsequently constructed to 

facilitate the repairs on the hoist and ~here is no safety re~uirement for such a platform at that location. He attached a safety 

line at several places while climbing the housing during his 

investigation, but could not recall precisely where he attached it 

(Tr. 145-149). 

William Yockey, mine safety connnitteeman and president of UMWA 

Local 1189, testified that at the time of the accident he was not 

aware of any mine area which was posted as requiring the use of 

safety belts. With regard to the posting of a company safety program, 

he indicated that there are times when none were posted on bulletin 

boards, but they could have been posted on one or two boards. He has 

observed a safety book posted in the shop and on the shovel where he 

worked. There are 19 or 20· bulletin boards, but he could not say 

whether one was posted on all of them. Sometimes people will remove 

them from the boards or they may blow away •. He has observed men 

working in elevated areas at the mine without safety belts. He 

discussed the use of safety belts with the mine safety superintendent 

for the purpose of clarifying how they were to be used, but prior to 

that time no one ever specifically showed him how to use one (Tr. 

156-161). 

Mr. Yockey stated that a safety belt was available to Mr. Woods, 

but he believed that use of the belts was not .emphasized enough at 

the mine. One supervisor might specifically designate someone t6 

wear a belt while another one would not. If he were told to wear a 

belt he would do so, but if no one told him to wear it he would not. 

He could not recall any specific training that he received with 

respect to the use of safety belts, and indicated that a belt is not 

a complicated piece of equipment. However, there have been some 

questions as to whether the lanyard should be hooked on the front or 

back of the belt. He has been directed by mine fo:i;-emen to use belts. 

As for the other men, some are afraid to climb and others are not and 

the use of a safety belt varies among these individuals (Tr. 162-166). 

On cross-examination,· Mr. Yockey testified that in any particular 

situation the question of whether or not a danger of falling exists 

depends on a number of different factors. He considered Mr. Woods to 

be a very safe worker with some 30 years' service. He surmised that 

Mr. Woods did not wear a belt because he was the type of person who 

did his job when it needed to be done, and as an experienced operator 

he needed little supervision, but would do what he was told (Tr. 167-

169). 

Mr. Yockey stated that no one ever told him not to wear a safety 

belt. He has received instructions on the Part 77 surface mining 

regulations. He has· obs.erved a safety book, Exhibit P-10, p~sted on 

three bulletin boards, and a safety-book, Exhibit P-7, on some of the 

boards, but not all of them. Most of the boards are open, and he has 

reviewed posted material (Tr. 170-172). 

9 
In response to bench questions, Mr. Yockey stated that he has 

worked in elevated areas while repairing a boom without using a safety 

belt, and he has observed others working on elevated cranes, and 

haulage trucks which are 20 to 25 feet above ground, without using 

such belts. He personally does not like to wear a safety belt because 

it gets in hj.s way while he is working. However, if instructed to do 

so, he would wear a belt. He does not believe it practical or 

feasible to designate every elevated area in a mining operation where 

a belt should be worn. He recalled two occasions· where a foreman or 

master mechanic instructed him to wear a belt. During the time that 

he worked with Mr. Woods, he (Woods) wore a safety belt when making 

repairs on the shovel. He was not at the mine when the accident 

occurred (Tr. 176-183). 

Mr. Yockey stated that there are occasions where common sense 

dictates that a safety belt be worn and he does not have to be told 

(Tr. 184). 

Charles E. Stilwell, second shift dragline oiler, was working 

with Mr. Woods on the day of the accident and he was standing 

directly across from him on the gear housing when he fell. He was 

not wearing a ~afety belt and was not specifically instructed to 

wear one. Had\he been so instructed, he would have worn one. He, 

Mr. Woods, and foreman Bob Siegel were on the gear housing earlier 

in the shift and were not wearing safety belts. Mr. Siegel did tell 

them to be careful. He had been up a third time with an electrician. 

He and Mr. Woods generally made repairs on the dragline and it was 

part of their job. On the day of the accident, Mr. Siegel told them 

that he was going to get the mechanic who would instruct them what to 

do, but he could not remember Mr. Siegel telling them not to go up on 

the housing. Mr. Woods asked him to go up and he did. He never wore 

a belt en the dragline because he was never at any place where he 

thought he needed one. Since the accident, he wears one if instructed 

to do so (Tr. 186-193). 

On cross-examination, Mr. Stilwell detailed the movements of 

the dragline prior to the accident. During the _movement of the 

machine, the 30-ton hoist came loose from the hoist cables and a 

5-ton hoist electrical box became dislodged and was hanging over 

the machine. The machine was then shut down in "order to. assess the 

damage. One of the foremen then advised the crew to 11 let it go," and 

then the master mechanic arrived on the scene and instructed the crew 

to install a grease line on the machine. While preparing to do· this, 

Mr. Woods was just finishing tying a rope on the five-ton hoist by 

himself in order to move it. Foreman Siegel arrived on the scene and 

assisted in moving the hoist, and then left to get the electricians 

and master mechanic Jim Binkley. Mr. Siegel informed _the crew that 

the mechanic would instruct them what to do when he arrived and asked 

them to "be careful. 11 Mr. Woods insisted on climbing up on the housing 

to try and straighten it out and Mr. Stilwell suggested they wait for 

10 
the mechanic. However, he decided to go with Mr. Woods since 

Mr. Woods was the leadman. Mr. Woods climbed up on the gear hoU'sing 

by means of a ladder on the front of the machine and he and Mr+ Woods 

were using a torch while working on the gear housing and they were 

there about 10 minutes before Mr. Woods fell. Mr. Stilwell identified Exhibit R-1 as a sketch 'of the scene where he and Mr. Woods were 

positioned prior to the fall. While he and Mr. Woods were on the gear 

housing they used two or three handholds located on the inspection 

covers in climbing up to the housing. During the three times that he 

climbed the housing, he did not believe he was in danger of falling, 

and at no time was he instructed by the company to make repairs on 

the hoist. Mr. Siegel told them that the mechanic would instruct 

them further when he arrived at the scene and he believed that they 

were to leave the machine alone until he arrived, but Mr. Woods 

overruled him (Tr. 194-207). 

Mr. Stilwell testified that when he and Mr •. WoQds.were o.n the 

machine, the footing was secure and he was wearing. goggles •. Safety 

belts were provided on the machine and Mr. Woods must have known they 

were there. Mr. Woods was a safe hard worker. During the three 

times he was on the gear housing, he never considered using a safety 

belt because he did not feel uneasy. He has received miner training, 

has attended periodic safety meetings with the foremen, and has 

observed a safety book posted on the bulletin board in the tipple and 

preparation plant. A company safety book was also stored in the 

electrical room of the No. 1360 dragline on the day of the accident 

and he believes that the dragline operator and the groundman knew it 

was there. He receives safety contact training as part of the company 

annual training program and believes that he receives as much training 

as miners from other companies (Tr. 208-217). He was aware of the 

company practice of writing up employees for safety infractions and 

as far as he knows neither he nor Mr. Woods have ever been cited by 

the company for violating safety rules (Tr. 217-222). 

Donald E. Allen, assistant superintendent, Broken Arrow Mine, 

testified he was at the Squaw Creek Mine on the day of the accident 

on April 18, 1977, where he was employed as assistant superintendent 

as a supervisor on the 1360 dragline. He described the movement of 

the dragline on April 18, and indicated that it first became bogged 

down in loose fill material and then broke a cable on the overhead 

hoist. His job was to get the machine into production and to 

acquaint the crew with dragline stripping procedures since they 

were all shovelmen. After the cable broke, he discussed the situation with Mr. Stilwell, Mr. Siegel,. and Mr. Woods and he instructed 

Mr. Stilwell to tie off the hoist and leave it because he was not 

concerned with it. Four or five safety belts were on the machine at 

the time of the accident (Tr. 236-247). 

Robert W. Siegel, pit foreman, Squaw Creek Mine, described the 

movement of the dragline on the day of the accident and the damage 

11 
which occurred to the machine while it was in transit. He advised 

Mr. Stilwell and Mr. Woods that he was going to get an electrician 

to deenergize the machine and they proceeded with their regular 

cleanup duties while he was gone. He and Mr. Woods then climbed up 

on the gear case to visually inspect the crane. As he climbed up, 

he felt they had good handholds and good footing. He did not feel 

there was a danger of falling when he mounted the gear case. He then 

left the area and returned and told Mr. Woods that he would summon 

the master mechanic to look at the machine, and that nothing else 

needed to be done. After finding master mechanic Binkley, he advised 

him to check out the machine to determine any needed repairs. He 

subsequently learned about the accident (Tr. 248-258). 

Mr. Siegel testified that he was unaware that Mr. Woods and 

Mr, Stilwell were using a torch and hammer to attempt to make 

repairs on the crane until after the accident. When he mounted the 

gear case to inspect the damaged hoist, he saw no mud or grease that 

would interfere with his footing and he felt secure in his footing 

and it did not occur to him to use a safety belt because he felt he 

had adequate footing and handholds to reach the area. Safety belts 

were available on the· machine and were stored some 10 to 15 feet from 

the gear case.\ There were four to six belts and Mr. Woods knew where 

they were locat~d. The ba.rrel where the belts were stored was 

labeled, and Mr. Woods was familiar with the use of the belts (Tr. 

258-260). 

Mr. Siegel testified that he partipates in the company safety 

program through personal safety contacts, safety meetings, and exception and observation reports of the employees. Safety contacts 

consist of a foreman personally contacting employees on a safety 

topic, and safety meetings involve written materials which are read 

to the men concerning accidents or new programs. He obtains safety 

literature from the safety department for use at the meetings and 

records are kept of the meetings and contacts. He identified Exhibit 

R-2 a~ a supervisor's safety contact book used by all supervisors 

and he explained the use of the books. If he finds that an employee 

has engaged in an unsafe work practice or has violated a safety rule 

on Federal regulation he files a safety observation and exception 

report. Repeat violations may result in disciplinary action against 

the employee and he identified Exhibit R-3 as the report form. He 

made a safety contact with Mr. Woods on April 18, 1977, and discussed 

footing and slips and falls with him. Previously, he had four other 

safety contacts with Mr. Woods and other employees. He has told 

employees to use a safety belt and has found an employee not using 

one when he should have. In that instance, he instructed the 

employee to get his safety belt and wear it. He has also advised 

employees at safety meetings and daily contacts that safety belts 

should be used where there is a danger of falling (Tr. 260-268). 

Mr. Siegel testified that Mr. Allen instructed Mr. Woods to 

proceed with cleanup, and maintenance and repair on the machine 

12 
grease line and not to worry about the crane. The use of the torch, 

hammer, and pry bar by Mr. Woods in his efforts to make repair were 

contrary to instructions (Tr. 270). 

On cross-examination, Mr. Siegel stated that Mr. Woods and 

Mr. Stilwell engaged in an unauthorized act in climbing up on the 

machine but Mr. Stilwell was not disciplined. However, they generally engaged in repair work as part of their duties. He was not 

aware that they were up on the gear housing prior to April 18. When 

they climbed up on April 18, he advised them to be careful as they 

climbed up and he did not believe they were in danger while standing on top of the gear housing. Had there been work done there he 

probably would have required men to use safety belts. However, he 

would have performed no work there until the whole situation was 

evaluated. He has written up employees for failing to wear safety 

belts but could not recall the last time he did that (Tr. 270-282). 

Mr. 'Siegel stated that: the dragline crew was relatively new to 

th~t equipment but were experienced miners. He believes Mr. Woods 

would have worn a safety belt had he been told to and the area from 

which he fell was 'elevated. While on the gear housing, he could hold 

on to the hoist itself and the side of the gear case. While up on 

the housing, they were holding on to the crane and he could stand 

without holding onto anything (Tr. 283). 

In response to questions from the bench, Mr. Siegel testified 

that the practice of each man determining whether to use a safety 

belt in a given situation is a good practice because they have to 

use common sense to protect themselves and a supervisqr cannot be 

there every minute to tell them to use a belt (Tr. 288). 

Mr. Siegel stated that procedures involving the use of safety 

belts has not changed since the accident although the memorandum of 

instruction has been modified. Occasional safety talks on safety 

belts are held, but prior to the accident, no specific safety talks 

on safety belts were conducted at the mine (Tr. 292). 

Robert E. Thomas, safety manager, Indiana Division, testified he 

·has responsibility for safety over nine of respondent's mining operations, including supervision over the mine safety supervisors. His 

responsibilities include enforcement of Federal safety laws, company 

safety rules, safety training and orien,tation, safety management 

program, and accident investigations. Safety management includes 

safety observations, safety meetings, safety contacts, and exception 

reports. He partipated in the accident investigation and identified 

several photographs of the scene (Tr. 295-300). 

Mr. Thomas testified that the company has a program of instructions concerning safety regulations and procedures used at the mine 

at the time of the accident. The foremen conduct training sessions 

13 
concerning safety standards and the program is audited and evaluated 

each month, and he meets with the mine superintendents to discuss the 

evaluations. Each new employee partipates in a safety orientation 

program and in an 8-hour retraining program. Annual retraining is 

required by the union wage agreement of 1974, and he described the 

15 safety topics covered, which include instructions in Federal laws 

and regulations. He identified Exhibit R-7 as the safety management 

program manual used by the foremen in their safety training, safety 

contacts; and safety exception report program. Each foreman is 

required to have a 10-minute safety meeting each week, and daily 

safety contacts when they are assigned a job. Mass safety meetings 

are held prior to and after vacation periods and holdings. He also 

sends copies of accident reports to the mines to be used by supervisors and foremen in their safety discussions with the men. Special 

training is al~o conducted for welders, and all of the programs are 

constantly monitored. Safety topics have included the use of safety 

belts and lanyards when working at heights. Safety memos are posted 

on bulletin b?ards or,.used.at: meetings with.th.e .. men ('1,'r.; 300-314). 

Mr. Thomas described the safety exception program. At the time 

of the accident\~ employees were required to use safety belts and lines 

where there was\a danger of falling, and it was enforced through 

training topics such as Exhibit R-8, and employees who violated the 

requirement would be subject to an exception report and warned, and 

they could be dismissed. Safety rule lOS(i), set out in Exhibit R-9, 

is the safety belt requirement. Rule lOO(a) incorporates applicable 

State and Federal laws as a part of the company's safety rules, but 

they are not reproduced. Although he could not recall specifically 

telling anyone to wear a safety belt, he has discussed it with men 

on the job sites. Safety rules and Federal regulations are posted 

at the mine on the bulletin boards. They are usually posted on the 

boards at the shop and garage area, the washhouse, the preparation 

plants, large machines, and in places where there are large groups 

of people, including parking lots and different job sites. Items 

posted include memorandums, safety topics, accident reports, safety 

directives, safety books, etc. The materials are available for 

inspection by anyone and it is difficult to keep the documents on 

the bulletin boards (Tr. 315-321). 

Mr. Thomas testified he saw Inspector Wheatley during the accident investigation and observed him climbing the gear housing, and 

with the safety belt and lines, he had ~ problem climbing and does 

not remember seeing him climb all the way to the top (Tr. 322-324). 

On cross-examination, Mr. Thomas stated that the company conducted an accident investigation and prepared a written report. He 

developed the report and although the report states that the accident 

was caused by the failure to use a safety belt and lanyard, he disagrees with the statement. He does not know why Mr. Woods fell. Had 

he worn his belt, it could have prevented the accident. Aside from 

14 
the accident, the area from which Mr. Woods fell is not normally 

considered an area where there is a danger of falling since it is 

easy to get to and the housing casing is 18 inches wide. He believed 

that very few people would realize that someone could fall from the 

housing while performing work there. He knows of no mining guidelines 

to determine potential fall areas on heavy equipment. There has been 

one previous accident involving a construction supervisor who was 

injured in 1975 while working at a height at the preparation plant 

and he was not wearing a safety belt. He received a letter from MSHA 

reemphasizing the use of safety belts and he solicited it because of 

a disagreement concerning an accident where an employee fell some 

10 to 12 inches while washing down a bulldozer radiator. MSHA issued 

a citation, but it was subsequently vac.ated when it was learned where 

the man was actually standin~ (Tr. 329-339). 

Mr. Thomas stated that there are a few areas in some of the 

respondent 1 s mines where signs are posted. requiring that .. s_afety belts 

·be worn, i.e., sometimes on the drill mast. He is not aware of any 

specific company guidelines on when safety belts should be worn (Tr. 

339-343). 

In response to 'l>ench questions concerning a photograph of mine 

employee Cook standing on the gear housing (Exh. R-5) without a 

safety belt, Mr. Thomas stated that it is within Mr. Cook's discretion whether to wear a safety belt (Tr. 351). He believes that no 

one recognized the hazard at the time Mr. Woods fell (Tr. 353). 

Alan W. Cook, assistant safety manager, Indiana Division, testified that his duties are similar to those of Mr. Thomas, with a 

particular emphasis on training, and he conducts and implements 

company safety programs. He was at the mine on the day of the accident for the purpose of conducting the accident·investigation. He 

climbed the gear housing to assist inspector Wheatley in making his 

measurements, and he identified Exhibit R-5 as a photograph showing 

him on the housing. 'Mr. Wheatley did not tell him to wear a safety 

belt while standing on the housing, but later in the afternoon told 

him that no one was to go up on the hoist drum unless they use a 

safety belt and a lanyard. He observed Mr. Wheatley climb up the 

gear case and he was experiencing difficulty in tying off the line 

as he climbed up. He did not see him on top of the drum, however· 

(Tr. 368-373). 

. Mr. Cook stated that after the violation was written, he and 

M_r. Wheatley checked two bulletin boards in the office and shower 

room although there were others on the min~ premises. The boards 

normally contain safety rules and procedures. When he mounted the 

gear housing, he did not believe there was a danger of falling. He 

described the materials normally posted on mine bulletin boards, and 

he usually personally checks the boards (Tr. 375-379). 

15 
Mr. Cook identified two file boxes containing employee contact 

and exception reports filed since the program began in 1973. The 

files are kept at the Squaw Creek Mine and each mine has similar 

files. The files contain some 1,500 sheets of safety contacts, and 

approximately 1,800 more exception and observation reports. These 

records are maintained as part of the safety management program and 

accident prevention program. He identified safety contacts made with 

Mr. Woods and Mr. Stilwell (Exh. R-12). Safety contacts are a 

regular program at the mine. He also identified Exhibit R-13 as a 

record of safety training received by Mr. Woods in 1976. He personally has told employees to wear safety belts. He also identified 

Exhibit R-14, indicating that Mr. Woods received a copy of the company 

safety rules on January 23, 1973, and Exhibit R-15 as safety observations conducted on Mr. Woods prior to the accident, and it contains 

no notations of any unsafe acts on his part (Tr. 380-400). 

Mr. Cook testified that there were possibly six safety belts 

located on the dragline in question in a barrell labeled "safety 

belts 11 (Tr. 401), · He. testified as to· company policy concerning the 

use of exception reports (Tr. 405-407). 

On cross-exa~ination, Mr. Cook testified that he did not know 

whether a bulletin 'board was located on the dragline and he saw no 

safety manuals posted there on the day of the accident (Tr. 408). 

He did not know whether Mr. Woods received specific training on the 

use of safety belts (Tr. 412). 

In response to bench questions, Mr. Cook stated that if he had 

to climb the gear housing, the question as to whether he would wear a 

safety belt would possibly depend on the kind of work he had to do 

(Tr. 420). The repairs made to the gear housing the day of the accident were unusual and it is not a place from which work is normally 

done (Tr. 425). 

Inspector Wheatley was recalled by the court and stated that 

after listening to all of the testimony, he would still take the same 

action that he took when he issued the citations in question, given 

the circumstances available to him at the time. Some of the material 

introduced by the respondent during the hearing is new to him and' some 

·he had little knowledge of and the company safety programs was never 

brought to his attention. He examined the bulletin boards on April 20 

and he saw nothing which indicated the posting of a safety program 

(Tr. 428-430). ·He did not attempt to l~cate all mine bulletin boards. 

He checked only the change room, office, and the shop and observed 

none of the materials there (Tr. 433). 

Findings and Conclusions 

Fact of Violation--30 CFR 77.1710(g) 

Petitioner asserts that while it could be argued that section 

77.1710(g) provides little guidance for an operator to determine if 

16 
there is a danger of falling, thus requiring the use of safety belts, 

the regulation is capable of enforcement under the factual situation 

preserited in this case. In support of its position, petitionerargues that the use of an 18-inch wide narrow area elevate.d 16 feet 

above the dragline floor as a work area, created a condition where 

there was a danger of falling. Placed in a tenuous position on top 

of the dragline gear housing without the proper means of support 

from a work platform or by using a safety, would place a worker in 

obvious danger of falling, argues petitioner. 

Petitioner points to the fact that respondent's Foreman Siegel 

indicated that he would have required the use of safety belts if he 

knew that work was being performed on top of the gear housing, and 

that respondent.' s accident report indicates that the use of safety 

belts should have been required. Petitioner takes the position that 

if safety belts are, in fact, .. required to be worn, the type of 

activity .a w.orker is engaged in, should. be. irrelevant. Since a 

worker, such as the accident victim in this case, could change his 

work activity in a very short period of time, ~._a., 1 minute, he 

could be merely observing the damaged overhead hoist and the next 

minute. he could be. attempting to repair it if safety belts are 

required then they.should be worn on all occasions when a worker is 

exposed to high elevations. 

Petitioner asserts that the obvious intent of section 77.1710(g) 

is to require miners to wear safety belts and that the failure of a· 

miner to wear his belt when required, is, per se, a violation, notwithstanding my prior decision to the ·contrary in Peabody Coal Com-

~' DENV 77-77-P, decided August 30, 1978, a decision which petitioner avers merely shifts the burden of the miners' protection to· 

the individual employees and. away from the mine operator. 

Petitioner argues that the testimony in the instant case clearly 

establishes that respondent never actually required the use of safety 

belts as a uniform policy and that there was no attempt to enforce 

the requirements of section 77.1710(g) on the date of the accident. 

Further, petitioner asserts that the accident victim's attempts to 

repair the overhead hoist were not outside the scope of his responsib{ li ties as the dragline operator, that repair work on the dragline 

was part of his normal duties, and he was never actually directed to 

stay off the gear housing by management. As a matter of fact, 

asserts petitioner, since Mr. Woods and his foreman had' been up on . . . 

the gear housing previously without wearing safety belts, it was only 

natural for him to assume that no safety belts would be required if 

he had occasion to go up on top of the gear housing for a second 

time to perform repair work. 

With regard to respondent's general enforcement of safety belt 

requirements at the mine, petitioner cites the testimony of UMWA 

Local 1189 President William Yockey, who testified that it would 

17 
depend on the particular foreman who happened to be enforcing the 

policy, and that when required to do so by mine management, he 

would wear a belt. Also cited is the testimony of Mr. Stillwell, 

the dragline helper, who testified that Mr. Woods would have worn 

a safety belt if he was directed to do so by management. Therefore, 

argues petitioner, .Mr. Woods' failure to use a safety belt cannot be 

considered as intentionally disregarding company policy, because 

there was no company policy requiring their use. 

Respondent argues that the record supports a finding that it 

required the use of safety belts where there is a danger of falling, 

and that the rule regarding the wearing of belts was implemented 

through teaching and training methods and was subject to discipline 

for those employees failing to comply, and clearly identified safety 

belts were available on the dragline. Respondent cites the testimony 

of UMWA President Yockey who indicated that he does not generally 

wear a. saf~ty be.lt pecause he believes .. it inter.feres with his .welfare, 

th~t: 'it'iS not always practical to require the wearing of such belts 

when someone is working in an elevated position, but that he will 

wear such a belt if instructed by a foreman and required to do so. 

Respondent atgues that section 77.1710(g), by its specific terms, 

does not state thai the operator is guilty of a violation if an 

employee does not wear a safety belt when he is required to do so, 

and that the question of when to or not to wear a belt is a matter 

of individual common sense and judgment. Citing North American Coal 

Corporation, 3 IBMA 93 (1974), and my previous decision in MSHA v. 

Peabody Coal Company, DENV 77-77-P, August 30, 1978, applying the 

North American ruling, respondent argues that it has complied with 

the requirements of section 77.1710(g) by providing safety belts, 

instructing the employees in their use, and requiring them to wear 

the belts when working in elevated areas. Further, respondent argues 

that two additional factors emphasize its lack of responsibility for 

the violation, namely, the fact that Mr. Woods was acting outside the 

scope of his instructions, and secondly, except for Inspector Wheatley, 

it was the opinion of the witnesses that a safety belt was not necessary under the circumstances of this case • 

. Respondent 1 s safety rule regarding the use of belts and lanyards 

is contained in a 1972 company publication (Exh. R-9). Rule 105(i) 

at page 6 of that publication, states as follows: "Safety belts and 

lanyards shall be worn as designated." . 

Rule lOO(a) provides that applicable state and Federal laws are 

incorporated by reference as part of the company's safety rules, and 

subsection (d) provides that since it is impractical to include rules 

to meet all contingencies in emergencies not provided for in the 

rules, employees are required to act under the advice and direction 

of their supervisor. 

18 
It is clear that at the time the citation issued, respon'dent 1 s 

safety belt and lanyard rule left much to the impgination and that 

it was subject to several interpretations, several of which were 

forthcoming during the course of the testimony adduced in. this case. 

While it is true that respondent has an elaborate and comprehensive 

safety program, replete with procedures, directives, pamphlets, 

booklets, files, etc., etc., I quite frankly and candidly am at a 

loss to understand why it failed to adopt a safety rule regarding the 

use of safety belts and lanyards so as to make it absolutely clear and 

understandable to a person of ordinary intelligence. Respondent's own 

safety manager did not understand the language "as designated" (Tr. 

317-318), and it is obvious from the arguments presented during the 

hearing, that respondent obviously takes the position that since all 

applicable Federal mine safety regulations were incorporated by reference in Peabody's safety rulebook, an employee was accountable for 

understanding each and every regulation, including complying with the 

same. Such an explanation and rationale in defense of the violation 

is simply unacceptable. ·I. am of· the view that art operator, ·particularly one the size of Peabody Coal Company, with all of its resources, 

should have takeμ the initiative to insure th~t its workforce clearly 

understood its· pi:l.blished safety belt rule, Only after the fatality 

occurred, did Peabody see fit to publish a company policy concerning 

the use of safety belts (Exh. P-8). The memorandum of April 21, 1977, 

issued a day after the accident, cites section 77.1710(g), company 

safety rule 105(i), and directs each supervisor to contact each of 

his employees and to read to him the following mine policy: "Any 

time an employee is performing one's dutie~ in an elevated ~ork area 

and where a work platform is not provided, a safety belt shall be worn 

and a lanyard shall be utilized." 

Respondent's arguments that Mr. Woods acted outside the scope of 

his instructions and that in the opinion of several witnesses presented in its behalf, a safety belt was not necessary, are rejected 

and cannot serve as a basis for absolving respondent from any responsibility for the violation. Having viewed the witnesses, listening 

to their testimony, and viewing the photographs of the 18-inch wide 

gear housing in question, elevated some 16 feet above the dragline 

floor, I am convinced and I find that the area in question was, in 

fact, an area where there was a danger of falling and that safety 

belts or lines were required to be worn. 

With regard to respondent's assertion that Mr. Woods was acting 

outside the scope of his instructions, even if that were true, it does 

not excuse the fact that he was not instructed to wear a belt while 

on top of the gear housing. As pointed out by petitioner, Pit Foreman Siegel indicated that had he known that Mr. Woods was going to 

perform work on top of the gear housing, he would have instructed him 

to wear a belt. On the facts presented in this case,· I can only conclude that Mr. Siegel should have known from the situation presented 

that it was likely that Mr. Woods would again climb up on the housing. 

19 
As a matter of fact, that is precisely what happened in this case, not 

only once, but at least twice. 

While it may be true that Mr. Siegel cautioned the men to "be 

careful," he did not specifically instruct or caution them with 

respect to the use of safety belts. Since it is clear that the foreman and the men had earlier climbed atop the gear housing to inspect 

the damage without wearing safety belts, the foreman should have known 

that it was likely that the men would again climb up to effect repairs 

and he should be specifically instructed them to use the safety belts 

provided. Although Mr. Siegel testified it did not occur to him to 

use safety belts because he felt he had adequate footing and had used 

handholds to reach the area atop the gear housing, it is clear to me, 

as indicated above, that an 18-inch wide area atop the gear housing 

where men are standing and working, is an area where safety belts 

should be required to be worn. 

-~1th9ugh the.re is. merit tQ respondent IS .Suggestion that the .ques-. 

tion of ·~hen to or when not to wear a safety belt, is a matter of individual common sense and judgment, that proposition assumes that ~11 

individuals working at the mine are endowed with those attributes, and \ 

based on the fact th.at persons have been known to be killed or seriously injured by fai'ling to wear safety belts or lines, I can only 

conclude that a mine operator must be held accountable and responsible 

to some deg~ee for the protection of those who lack common sense and 

good judgment. This can only be accomplished by forceful and mean- , 

ingful safety belt and lanyard rules, policies, training programs, and 

procedures. On the basis of the evidence adduced in this proceeding, 

I cannot conclude that respondent's program in this regard was adequate, nor can I conclude that respondent's requirements with respect 

to the use of safety belts was clearly articulated to all employees 

or emphasized or enforced with due diligence, and my reasons in this 

regard fol low. 

Mr. Yockey testified that there is no consistency with respect to 

the company safety belt rule, and that one supervisor may designate 

someone to wear a belt, while another would not. He candidly admitted 

that he would wear a belt only if told to by his supervisor, and he 

indicated that some men wear belts and others do not. The decision as 

to whether a belt should be worn is left to the individual employe.e, 

As Mr. Yockey indicated, if the employee is not afraid to climb, he 

does not wear a belt; if he fears climbing, he does. Mr. Yockey 

observed individuals working on elevated cranes without wearing belts. 

Mr. Stilwell, who was with Mr. Woods on top of the gear housing 

when he fell, testified that he.was standing directly across from 

Mr. Woods when he fell to his death and he was not wearing a safety 

belt and was not instructed to wear one. He _had gone up on the gear 

housing earlier with Mr. Woods and Foremen Siegel, and no belts were 

worn by anyone. Since the accident, Mr. Stilwell wears a belt only 

if specifically instructed to do so. 
With regard to any specific training concerning the use of safety 

belts, Mr. Yockey testified that aside from discussions as to how to 

install a lanyard, he could recall no specific training in the use 

of belts, although he did indicate that a belt is not a complicated 

piece of equipment. Mr. Stilwell said nothing about any safety 

training in the use of belts, and it is clear that he will only wear 

one if specifically required to do so, notwithstanding the fact that 

he witnessed one of his co-workers get killed by not wearing a belt. 

Mr. Siegel said he probably would have instructed Mr. Woods and 

Mr. Stilwell to wear belts had he known they were going to climb up 

on the gear housing to perform work. However, he did not believe it 

necessary to so instruct them when they all climbed up to inspect the 

gear housing, even though he saw fit to caution them as they were 

climbing up. He also endorsed the practice of permitting each 

individual to decide for nimself when to wear a safety belt, and indicated that little has changed since the accident in question, and 

while occasional safety talks on safety belts are hel9, prior to the 

accident, no s.pe.cifie safety talks on the use of safety· belts were 

conducted at the mine. Assistant Safety Manager Cook climbed on top 

of the gear housing after the fatal accident to assist Inspector 

Wheatley in taking certain measurements and he was not wearing a 

safety belt (see Exhibit R-5, a picture of Mr. Cook on top of the 

gear housing). He did not wear a belt because he did not believe he 

was in danger of falling, but he also indicated that if he had to 

climb up again, the question of whether he would wear a belt or not 

would depend on the kind of work he had to perform. 

Although Mr. Siegel and Safety Manager Thomas both alluded to 

employee safety talks and exception reports, Mr. Siegel could not 

recall t'he last time he had written up an employee for failing to 

wear a safety belt, and Mr. Thomas could not recall specifically 

telling anyone to wear a safety belt, although he stated he discussed it with men on the job sites. Mr. Thomas also indicated that 

few mine areas are posted with signs advising as to the requirement 

for using safety belts, and is unaware of any specific company guidelines concern~ng when safety belts should be worn. 

Respondent cannot escape liability and accountability for the 

failure of its employees to wear safety belts where the evidence 

adduced indicates that it did not effectively and forcefully enforce 

its safety rule in this regard, Respondent cannot fail to promulgate 

a clear and concise safety rule regard~ng the use of safety belts, 

fail to properly train and supervise its employees in their use, and 

then hide behind its lack of knowledge concerning an employee's 

_dangerous working practice. It seems to me that it should not be 

a difficult task for mine management to identify those areas in a 

mine where an employee is normally and regularly expected to perform certain job tasks and if that area is elevated to a degree 

where there is danger of falling, a supervisor or foreman should see 

to it t'hat an employee has and wears a safety belt. In this case, 

21 
while the dragline in question was equipped with safety belts stored 

in a barrell and clearly labeled, three employees, including a foreman, climbed to the top of the gear housing, not once, but twice, to 

inspect and then to perform work, and on neither instance did any of 

them wear safety belts. 

On the facts and evidence adduced in this proceeding, I find 

that respondent has failed to establish that at the time the violation 

issued, it had a clear and understandable safety requirement designed 

to assure that all employees wear safety belts where there is a danger 

of falling, and that it enforced such a requirement with due diligence. 

To the contrary, I find that respondent's purported safety belt rule 

as set forth in rule lOS(i) and as interpreted and applied at the mine 

in question, failed to adequately inform an employee of the requirement for wearing safety belts where there is a danger of falling. I 

also find that the practice of permitting each employee to decide for 

himself when to wear a belt, coupled with somewhat inconsistent supervisory practices regarding the wearing of such belts and a lack of a 

regular an.d consistent company policy in this regard, is· an indication 

th~t respondent ~id not at that time, in fact, have a safety system 

designed to assur~ that employees wear safety belts where there was 

a danger of fallirtg. While respondent's overall safety program 

seems adequate on paper, as attested to by·the voluminous exhibits 

introduced in support of its position; I simply cannot find that its 

safety program met the tests laid down in the North American Coal 

Corporation case at the time the citation issued. 

The prior Peabody case decided by me on August 30, 1978, concerned a driller helper who lost his balance while sta.nding on top 

of a cable reel of a drill rig, and sustained multiple leg fractures 

when he caught his leg between the cable and cable reel. The evidence adduced in that proceeding established that mine management 

maintained a policy of requiring its employees to wear safety belts 

and that the policy was enforced with due diligence. Further, the 

evidence established that Peabody established and conducted training 

and instructional programs for its employees with regard to the use 

of safety belts, and had taken disciplinary action a·gainst employees 

for violations of company policy regarding the use of such belts. 

The evidence also established that the employee who was injured.as 

a result of failing to wear a belt which was provided him, received 

such instructions and was aware of company policy regarding t~e use 

of safety belts. Further, it was established that the supervisor 

was some 3-1/2.miles from the accident scene when the man was 

injured, that when last observed by the supervisor the drill rig 

was operating properly, and there was no indication that repairs 

were needed or that a supervisor was required to be at the rig or 

had reason to know that the driller belper was on the rig without a 

safety belt. 

I find that the facts presented in this case are distinguishable 

from those presented in the prior Peabody case which I decided, and 

22 
I believe it is clear from the discussion above with respect to my 

findings and conclusions concerning this matter, that respondent cannot avail itself of the North American decision, nor my interpretation and application of that decision in the prio! Peabody case as· 

a defense to the instant citation of section 77.1710(g). I find 

that petitioner has established a violation of section 77.1710(g) as 

charged, and respondent's arguments to the contrary are rejected. 

Size of Business and the Effect of the Penalty on Respondent's Ab{lity 

to Continue in Business 

The parties stipulated that respondent is a large coal mine operator and that any 'Civil"penalty.assessed by me in this matter will not. 

adversely affect its ability to continue in business, and the stipulation is adopted as my finding in this regard. · 

History of Prior Violations 

Altnough petitioner does not discuss respondent's prior history 

of violations in its posthearing brief, it did sub~it ~ computer 

printout for the Squaw Creek Mine reflecting a total of 45 paid violations for the petiod April 18, 1975, to April 18, 1977. One prior 

violation of section 77.7110(g) is noted as being issued in a section 

104(b) notice of July 28, 1975, for which an assessment of $94 was 

made. In the circumstances, based on the evidence presented, I cannot conclude that the prior history for the mine in question is significant and warrants any increased civil penalty. 

Negligence 

Petitioner submits that the violati~n was caused by respondent's 

negligence and I agree. While the record in this case indicates that 

Mr. Woods was an experienced and conscientious worker with a good 

safety record, there is no explanation as to what caused him to lose 

his balance and fall to his death, nor is there any explanation as to 

why he would climb to the top of the gear housing without using a 

safety belt which was provided. One witness speculated that he did 

so to "get the job done," and he also stated that Mr. Woods climbed 

to the top of the gear housing contrary to instructions to "leave it 

alone" because he was concerned and conscientious and wanted to see 

what could be done to repair the damaged equipment. However, it is 

also clear that the foreman should have anticipated that Mr. Woods 

and Mr. Stilwell would again climb to the gear housing, since they 

had done so earlier and did not wear belts, although the foreman did 

caution the crew to be careful. In the circumstances, I find that 

the record supports a finding that respondent failed to exercise 

reasonable care to prevent the violation in that its supervisory 

personnel should have specifically advised Mr. Woods to wear a belt 

which was provided on the dragline while he was on top of the gear 

housing. Its failure to do so, coupled with the failure of mine 

23 
manag~ment to promulgate a clear and concise safety rule pertaining to 

the requirements for the use of safety belts, constitutes ordinary 

negligence .. 

Good Faith Compliance 

Respondent abated the violation by publishing a clear statement of company policy with regard to the wearing of safety belts, 

instructing supervisory personnel to discuss the requirement with 

mine employees. I find that respondent demonstrated good faith 

compliance in abating the citation. 

Gravity 

It is clear from the evidence presented, that had Mr. Woods worn 

a safe'ty belt, he probably would not have sustained fatal injuries. 

Petitioner sugge.sts that th.e viol.;ition was seriol.ls, and. J; am in 

ag.ree~~nt" ~ith that assessm~nt. In· the· circumstances here presented 

where it is clear that .a safety belt could possibly have prevented 

the fatality, I can only conclude and find that the violation was 

serious. 

Penalty Assessment 

Petitioner recommends a civil penalty in the amount of $2,000 for 

the violation of section 77.1710(g). Taking into account the fact 

that safety belts were provided on the dragline in a clearly labeled 

container, and given the fact that Mr. Woods may have been instructed 

not to attempt further repairs on the machine, but did so anyway on 

his own, petitioner's recommended penalty does not appear to be 

unusually low. However, considering the fact that in this case, 

several employees climbed to the top of the gear housing without wearing safety belts and stood on an 18-inch wide area in full view of a 

foreman, and given the fact that I have found respondent's ·safety belt 

requirement to be somewhat anemic, not only in terms of its being 

clearly understood, but also in terms of inconsistent enforcement, I 

believe that a more substantial penalty is warranted.· Accordingly, 

respondent's recommended civil penalty is rejected, and I assess a 

penalty of $3,500 for the violation. 

Fact of Violation--30 CFR 77.1708 

Petitioner asserts that while it has never contested the fact 

that respondent has a written safety program which is distributed to 

its employees, it was not in compliance with section 77.1708 on 

April 20, 1977, when Inspector Wheatley checked the bulletin boards 

since he looked on the bulletin boards in the change room, shop, 

mine office, and on the dragline, but was unable to locate any evidence of a posted safety program. Further, petitioner submits that 

respondent's safety rules (Exh. R-9) are totally inadequate for the 

24 
.purpose of informing its employees when safety belts must be worn. 

Citing the language--"Safety belts and lanyards shall be worn as 

designated"--petitioner asserts that this could indicate to employees 

that belts need to be used only when specifically required either by 

posted sign or by oral request from a f".'.'reman. Since all operators 

must comply with the regulations as a minimum, petitioner asserts 

further that the inadequacy of respondent's safety rules cannot be 

corrected by merely adopting the Federal regulations. 

Respondent asserts that petitioner has failed to establish a violation of section 77.1708, and that even petitioner's evidence supports a finding that respondent had a viable safety program and that 

there was posting in numerous places of documentary safety procedures 

and precautions. Respondent points to the testimony of UMWA Local 1198 

President Yockey in support of its assertion that pamphlets and books 

relating to safety procedures had, in fact, been posted, and that 

~h:i,le all of 19 or 20 bulletin. boa.rds_ throughout. the mine. di~ .. not 

always 'have materials on them, miners would from time to time remove 

materials for their own use. As to its safety program, respondent 

asserts that it has established procedures for taking corrective 

action against employees observed violating safety rules, that it had 

held safety meeti~gs with employees, had posted its safety rules and 

pamphlets, conducted safety contacts with its employees, reproduced 

and distributed safety regulations and rules, training topics, memorandums, conducted safety audits and training, and, in fact, had a 

comprehensive safety program with instructions, prosedures and 

practices. 

Respondent argues further that the evidence establishes that the 

inspector conducted a most superficial investigation when he checked 

only ~hree or four of the 19 or 20 mine bulletin boards and that he 

admitted that the safety materials produced at the hearing were new 

to him and that he had never seen them. Under the circumstances, 

respondent argues that petitioner has failed to establish a violation 

of section 77.1708. 

Discussion 

Inspector Wh~atley gave two reasons for citing a violation of 

section 77.1708. He believed that respondent's safety rule regarding safety belts was not thorough, and he found that respondent •-s 

safety rules and regulations were not ROSted in conspicuous locations 

throughout the mine. In support of his citation for failure_to conspicuously post the safety rules, the inspector testified that he 

checked the bulletin boards near the change house, the mine office, 

and the shop. He was not sure about other bulletin boards and indicated that while he was looking for something that would suffice as 

a safety program, simply posting a copy of the "yellow book" (respondent 1 s health and safety rules, Exh •. R-9) would not suffice to meet 

the requirements of section 77.1708. When queried as to what would 

25 
suffice, he indicated that further research would be required at the 

particular mine in question. 

Section 77.1708 does not address itself to the qualitx of a mine 

operator's safety program. The standard merely requires three things, 

namely, the establishment and maintenance of a safety program, publi-. 

cation of the program, including distribution to the employees, and 

the posting of the program in conspicuous places throughout the mine. 

Insofar as section 77.1708 is concerned, the fact that the inspector 

did not believe the company safety rule pertaining to safety belts 

to be thorough, is immaterial. If MSHA desires to monitor the quality 

and adequacy of such training programs, it should promulgate 

a specific standard covering that matter. Here, the standard cited 

speaks to the establishment of a program and the posting and distribution of the program to mine employees. 

On the facts and evidence adduced in this proceeding, it is clear 

that respondent had-established afr elaborate safety and health train~ 

ing program, and the evidence and testimony produced on this question 

attests to that fact. Petitioner concedes that respondent has a 

written overall safe't;y program which was distributed to all employees, 

and its evidence produced in support of the cited violation has not 

convinced me otherwise. The thrust of petitioner's case is its assertion that on April 20, 1977, .the company safety program was not posted 

on three or four mine bulletin boards examined by the inspector. 

On the basis of the preponderance of the evidence adduced in this 

proceeding, I conclude and find that petitioner has failed to establish 

a violation of section 77.1708. Respondent piesented credible evidence 

from its witnesses, including testimony by the president of the local 

union who was called as petitioner's witness, indicating that there 

are 19 to 20 bulletin boards scattered throughout the mine and that 

safety materials and pamphlets were, in fact, posted on these boards 

from time to time, but that some of the materials had been removed. 

The fact that the inspector found three or four boards with no materials posted, is not persuasive, particularly in the circumstances 

here presented where the inspector could not recall how many boards 

he checked, and candidly admitted that he quite frankly did not know 

what he was looking for in terms of a safety program. Here, respondent fully met the first two requirements of the standard cited since 

the evidence supports a finding that it had established an.ongoing 

safety program which had, in fact, been published and distributed to 

employees. As for the conspicuous posting of the program throughout 

the mine, I have found that petitioner has failed to establish that 

this was not done and the basis for that finding is the cursory investigation conducted by the inspector covering three or four boards, · 

the fact that he was somewhat confused as to what he was looking for, 

and the fact that respondent's evidence and testimony reflected that 

safety materials were, in fact, posted on many, or at least more than 

three or four bulletin boards. 

26 
ORDER 

In view .of my findings and conclusions made with respect to· 

Citation No. 7-0021, April 20, 1977, 30 CFR 77.1710(g), respondent 

is ORDERED to pay a civil penalty in the amount of $3,500 within 

thirty (30) days of the date of this decision. With regard to 

Citation No. 7-0022, April 20, 1977, 30 CFR 77.1708, the petition 

for assessment of civil penalty, insofar as it seeks a civil penalty 

assessment for that alleged violation, is DISMISSED. 

./~~e /dt/V!Jf P/:'Kout'i'a's a,t /~~~ Administrative Law Judge 

Distribution: 

Robert A. Cohen, Trial Attorney~ Office of the Solicitor, Mine 

Safety and Health Administration, U.S. Department of Labor, 

4015 Wilspn Boulevard, Arlington, VA 22203 

Thomas F. Linn, Esq., Peabody Coal Company, 301 North Memorial 

Drive, P.O. Box 235, St. Louis, MO 63166 (Certified Mail) 

Standard Distribution 

27 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

~ECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL CO. 

Respondent 

MAR 3 0 1979 

.. 

Civil Penalty Proceeding 

Docket No. DENY 78-576-P 

02-01195-03003 

Kayenta Mine 

A.'1ENDED DECISION 

On March 7, 1979, the Judge rendered a Decision approving 

a settlement wherein a 20% assessment reduction was agreed to by 

the parties. Petitioner's motion included specific settlement 

figures for each violation. 

On March 23'\ 1979, Petitioner moved to modify the Decision on 

grounds that the digits were improperly transmitted by Petitioner. 

As noted .in the Decision of March 7, 1979, a 20% reduction does not 

shock the conscience, is within the bounds of reason and will 

effectuate the deterrent purpose of civil penalties. The digits 

in the Decision are hereby AMENDED as follows to properly reflect 

the settlement of the parties: 

Number Date 30 CFR Standard Assessment Settlement 

00387806 A 6/08/78 77. 509 $655.00 $524.00 

00387806 B 6/08/78 77.516 655.00 524.00 

00387806 c 6/08/78 77. 516 655.00 524.00 

00387806 D 6/08/78 77.516 960.00 768.00 

00387806 E 6/08/?8 77. 505 655.00 524.00 

00387806 F 6/08/78 77. 505 655.00 521+. 00 

00387806 G 6/08/78 77. 807 655.00 524.00 

/Jl_~trv J? k~4:'t. Malcolm P. Littlefield 

Admintstrative Law Judge 
Distribution: 

Marshall P. Salzman, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 10404 Federal Building, 450 Golden 

Gate Ave., Box 36017, San Francisco, California 84102 

(Certified Mail) 

Peabody Coal Co., 301 N. Memorial Dr., St. Louis, MO 63102 

(Certified Mail) 

Thomas F. Linn, Attorney, P.O. Box 235, St. Lo.uis, MO 63166 

(CeI:tified :1ail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

March 30, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MARY BETH COAL CO., INC., 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 79-113-P 

A/O No. 15-10780-03002 

Mary Beth No, 2 Mine 

DEFAULT DECISION 

Appearances: Eddie Jenkins, Esq,, Office of the Solicitor, 

Department of Labor, for Petitioner; 

Lindell Begley, Safety Director, Mary Beth Coal 

Cq., Inc., Bulan, Kentucky, for Respondent. 

Before: Judge Cook 

On November 20, 1978, the Mine Safety and Health Administration 

filed a petition for the assessment of civil penalty in the abovecaptioned case. An answer was filed by Respondent Mary Beth Coal 

Co., Inc., on December 19, 1978. A notice of hearing was issued on 

January 25, 1979, setting the hearing for 9:30 a,m., March 13, 1979. 

A copy of the notice was sent by certified mail to the Respo~dent. 

A return mail receipt indicated that it was delivered on February 1, 

1979. 

On March 13, 1979, the hearing commenced. Counsel for MSHA 

appeared. No one appeared to represent the Respondent (Tr. 4-5), 

Following this determination, a brief recess was taken. Following 

this recess, counsel for MSHA indicated that he.h_ad spoken by telephone to Mr. Begley, the respresentative of the Respondent during 

the recess. The result of that conversation was that Mr. Begley 

stated he would not be appearing at the hearing (Tr. 6). 

Thereupon, it was noted on the record that title 29, section 

.2700.26, subsection (c) states: "Where the respondent fails to 

appear at a hearing, the Judge shall have the authority to conclude 

that respondent has waived its right for hearing and contest of the 

proposed penalties and may find respondent in default" (Tr. 7). The 

respondent was then found in default (Tr. 7). 
It was also noted that the above section continues as follows: 

"Where the Judge determines to hold respondent in default, the Judge 

shall enter a summary order imposing the proposed penalties as final 

and directing such penalties be paid" (Tr. 7). Counsel for MSHA 

then filed Exhibits M-l(a) and M-l(b) which were the proposed assessments of September 5, 1978, concerning Mary Beth Coal Co., Inc., and 

the Mary Beth No. 2 Mine. Payment was then ordered to be made in the 

amount of the proposed penalties as set forth in Exhibit M-l(b) within 

30 days of the issuance of that order. 

ORDER 

Accordingly, the order is reaffirmed and Respondent is directed 

to pay the penalty assessed in the amount of $784 within 30 days of 

the date of this decision. 

Issued: March 3.0, 1979 

Distribution: 

ohn F. Cook 

Administrative Law Judge 

Eddie Jenkins, Esq., Office of the Solicitor, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Lindell Begley, Safety Director, Mary Beth Coal Co., Inc., P.O. 

Box 200, Bulan, KY 41722 (Certified Mail) 

2 

/ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

PERMAC, INC., 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

March 30, 1979 

Applicant 

Applications for Review 

Docket No. NORT 79-69 

Citation No. 0693222 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. NORT 79-70 

Citation No. 0693221 

Appearances: 

Before: 

Docket No. NORT 79-71 

Citation No. 0693223 

DECISION GRANTING MOTION·TO DISMISS 

T. E. Stafford, Director of Personnel, Permac, Inc., 

for Applicant; 

Edward Fitch, Esq., Office of the Solicitor, 

D~partment of Labor, for Respondent. 

Judge Cook 

Applications, apparently pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977 for review of citations 

issued pursuant to section 104(a) of the Act, were filed for Permac, 

Inc. In its application, Permac alleged that all of the citations 

have been abated. 

On March 9, 1979, MSHA filed an answer and a motion to dismiss. 

In its motion, MSHA alleged, that "section 105( d) of the Act does not 

aμthorize review of these abated citations and consequently these 

actions must be dismissed." 

The Applicant filed no response to this motion·and the time 

allowed for such a response has passed. 

The motion to dismiss will be granted because the Applicant in 

these proceedings is not challenging the reasonableness of the length 

of abatement time fixed in the citations and the Applicant is premature as.to a review of the citations on any other issue. There is 

no showing that a notice of proposed assessment of penalty has been 

issued in these cases as yet. 

Section 104(a) of the 1977 Act provides for the issuance of 

citations by an inspector for violations ~ommitted by an operator of 

a mine. 
Section 105(a) of the 1977 Act provides in pertinent part: 

If, after an inspection or investigation, the Secretary issues a citation or order under section 104, he 

shall, within a reasonable time after the termination of 

such inspection or investigation, notify the operator by 

certified mail of the civil penalty proposed to be 

assessed under section llO(a) for the violation cited 

and that the operator has 30 days within which to notify 

the Secretary that he wishes to contest the citation or 

proposed 1nrsessment-of penarty:--'k-* *-ff, w1th1n 30 days 

from the receipt of the notification issued by the 

Secretary, the operator fails to notify the Secretary 

that he intends to contest the citation or the proposed 

assessment of pendlty,' and no notice is filed by any 

miner or representative of miners under subsection (d) 

of this section within such time, the citation·and the 

proposed assessment of penalty shall be deemed a final 

order of the Commission***· [Emphasis added.] 

Section ,105(d) of the 1977 Act also sets forth provisions for 

the assessmen~ of penalties where the Secretary believes an operator 

has failed to 'correct a violation within the period permitted for 

its correction. Under this provision, the operator also has 30 days 

within which to contest the Secretary's 11notificat~on of the proposed 

assessment of penalty.u 

Section lOS(d) of the 1977 Act provides in pertinent part: 

If, within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that he 

intends to contest the issuance or modification of an 

order issued under section 104, or citation or -a notification of proposed assessment of·a penalty issued under 

subsection (a) or (b) of this section, or the reasonableness of the length of abatement tllne fixed in a citation 

or modification thereof issued under section 104, * * * 

the Secretary shall immediately advise the Con:unission of 

such notification, and the Commission shall afford an 

opportunity for a hearing***· [Emphasis added.] 

A study of subsection 105(d) shows that Congress provided for 

review to be obtained as relates to three categories of actions taken 

by representatives of the Secretary of Labor. First, an operator is 

permitted to 11 contest the issuance or modification of an order issued 

under section 104." Second, an operator is permitted to obtain 

review of a ncitation or a notification of proposed assessment of a 

penalty issued under subsection (a) or (b) 11 of section 105. Third, 

an operator is permitted .to obtain review of "the reasonableness of 

the length of abatement time fixed in a citation or modification 

thereof issued under section 104." 

2 
In view of subsection 105(a), the words of subsection 105(d) 

referring to review of "a citation or a notification of proposed 

assessment of a penalty issued under subsection (a) or (b) * * *" 

must be read to mean that the citation can be reviewed when the 

notification of proposed assessment is reviewed. 

It is therefore clear that the time for the Applicant to file 

an application to review a citation will not begin to run until 

after a notice of proposed assessment of penalty has been received by 

the operator, except in the instance where the operator intends to 

contest the reasonableness of the length of abatement time fixed in 

the citation. 'Ille issue as to the validity of the citation will then 

be determined in the civil penalty proceeding. 

The operator can then contest both the fact of violation (i.e., 

the citation) and the amount of the penalty' assuming there is a - violation. If he fails to file such a notice within 30 days as 

provided, both the citation and the penalty b·ecome a final order of 

the' Commission. 

This interpretation is supported by the legislative history. 

An extensive discussion of this history is contained in decisions 

on similar motions by Judge Steffey in Itmann Coal Company v. MSHA 

(HOPE 78-356), dated May 26, 1978, and Judge Merlin in United Sta'tes 

Steel Corporation v. MSHA (PITT 78-335), dated July 11, 1978. 

The Procedural Rules of the Federal Mine Safety and Health Review 

Commission contain certain regulations relating to the processing of 

applications for review of citations and orders. Part of these rules 

are contained in 29 CFR 2700.lB(a). If it were not for the fact that 

the intent of Congress is expressed in subsections 105(a) and (b) and 

subsection 105(d) of the 1977 Act, it would be possible to argue that 

29 CFR 2700.18(a) allows review of citations generally rather than 

only as to the reasonableness of the length of abatement time. However, the word "citation" in the regulation cannot be construed to 

grant more than the type of review of a citation which the statute 

itself grants at that stage, and that is a review of the reasonableness of the time for abatement. Unlimited review of the citation will 

eventually be obtained, but that will take place during the course of 

the civil penalty proceeding. 

In view of the statements of the Court of Appeals in Sink v. 

Morton, 529 F.2d 601 (4th Cir. 1975), it is clear that no due process 

problem arises in this instance. 

The court therein noted that the District Court: 

[T}hough concluding that the obligation of the plaintiff 

to 11 exliaust his administtative remedies under the Act 

[was) entirely reas.onable and in accord with accepted 

principles of administrative law," held that the plaintiff 

3 
had made a showing of irreparable harm, without any 

countervailing interests of safety, by reason of the 11 failure of the Secretary of the Interior to utilize his 

discretion in order to provide a hearing before a mine 

closure order is issued" and had 11had no opportunity to 

present his case to the appropriate authorities. t1 For 

these reasons, it granted an injunction against the 

enforcement of the notice and withdrawal orders "pending 

a final administrative determination of the issues 

involved. t1 [Footnote omitted.] 

at 603. 

The Court of Appeals ruled that the District Court erred in this 

finding. It went on to state: 

Nor is it of any moment that the inspector's withdrawal orders were issued without a hearing. By appeal, 

the plaintiff can obtain a hearing, which, by the terms 

of the Act, is to be held as soon as practicable, and he 

is accorded the right to apply, as an incident to that 

appeal, for a temporary stay of the orders. Such procedure ac'C,ords the plaintiff due process. Due process 

does not command that the right to a hearing be held at 

any particular point during the administrative proceedings; it is satisfied if that right is given at some 

point during those proceedings. Reed v. Franke (4th Cir. 

1961) 297 F.2d 17, 27. 

at 604. 

Accordingly, MSHA's motion to dismiss is GRANTED. IT IS 

THEREFORE ORDERED that the above-captioned proceedings be, and they 

hereby are, DISMISSED. 

Judge 

Issued: March 30, 1979 

Distribution: 

T. E. Stafford, ·Director of Personnel, Box 1614, 127 North St., 

Bluefield, WV 24701 (Certified Mail) 

"Edward H. Fitch, E"sq., Mine Safety and Health Administration, 

Office of the Solicitor) U:S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

Administrator for Coal Mine Safety and Health$ U.S. Department 

of Labor 

Standard Distribution 

4 

i:; U.S. GOVERNMENT PRINTING OFFICE : 1979 0-281-729 (3301)