AUGUST 1979 

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

Secretary of Labor; MSHA, v. Olga Coal Company, HOPE 79-113-P. 

Secretary of Labor, MSHA, v. Valley Camp Coal Company, ,MORG 78-46-P. 

Hilo Coast Processing Co., v. Secretary of Labor, MSHA, DENV 79-50-M, etc. 

Secretary of Labor, MSHA, v. Kenny Richardson, BARB 78-600-P. 

Review was denied in the following cases during the month of August: 

Secretary of Labor, MSHA, v. Texas Utilities Generating Co., DENV 79-82-P. 

Secretary of Labor, MSHA, v. Magma Copper Company, DENV 78-574-PM. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 3, 1979 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION, 

(MSHA) 

v. Docket No. DENV 78-31-P 

KAISER STEEL CORPORATION 

DECISION 

This penalty proceeding arises under section 109(a) of the Federal 

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

(amended 1977) ["the 1969 Act"]. In his decision, Administrative Law 

Judge Koutras found that Kaiser Steel Corporation violated the.mandatory 

standard at 30 CFR 75.316 1/ and assessed a $1,000 penalty. Kaiserrs 

petition for discretionary-review of the judge's decision was granted by 

the ConnnissiQn. 

On February 1, 1977, a Mining Enforcement and Safety Administration 

(MESA) inspector visited Kaiser's York Canyon Mine No. 1. At a working 

face, he observed what he considered to be an excessive concentration of 

float coal dust, extending 15-20 feet from the face, including the area 

where the continuous miner operator was seated at the machine's controls. He measured both the volume and velocity of air and found it 

inadequate, with only 1900 cubic feet of air per minute and a mean 

velocity of 18 feet per minute being delivered to the working face. 

Kaiser's approved ventilation plan required at least 3000 cubic feet at 

a minimum velocity of 45 feet per minute. In determining the cause of 

the substandard air supply, the inspector discovered that one road check 

curtain was rolled up and another was partially torn. He also observed 

that the auxiliary fan and ventilation tubing system, being used to pull 

the air away from the face area and into the return course, had about 

387 feet of tubing. The maximum permissible length of exhaust tubing 

specified in the ventilation plan is 400 feet. The inspector then 

1./ 30 CFR §75.316 provides in pertinent part: 

Ventilation system and methane dust control plan. 

[Statutory Provisions] 

A ventilation system and methane dust control plan and revisions thereof 

suitable to the conditions and mining system of the coal mine and 

approved by the Secretary shall be adopted by the operator ••• 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 •••• 

79-8-1 

984 
issued the notice at issue. Kaiser innnediately abated the condition by 

repairing the road curtains and reducing the length of tubing in order 

to-move the blower fan closer to the working face. 

It is not disputed 2/ that a violation occurred. The issues on 

review are limited to the judge's finding that Kaiser was negligent and 

the relevance of that finding to the amount of the penalty assessed. 3/ 

Kaiser argues that the judge erred in ~inding: that Kaiser's "positioning 

of the ventilation ·tubing in conjunction with the auxiliary fan was the 

primary cause of the lack of required air velocity"; 4/ that Kaiser 

"failed to exercise reasonable care to insure that the required velocity 

of air at the working face was maintained"; and that Kaiser's "failure 

to exercise reasonable care in the circumstances resulted in ordinary 

negligence." We conclude that the judge's negligence finding is supported 

by substantial evidence. 

Whether the placement of the fan and tubing was the primary cause 

of the substandard air volume and velocity need not be reached. There 

is ample record evidence to support a finding that it was a cause of' the 

reduced air flow. The inspector testified that the repair-of the toad 

curtain alone would not have remedied the inadequate air flow if the 

tubing and fan were not functioning properly. The inspector also 

testified, and Kaiser's foreman agreed, that friction and resistance to 

air flow increase as exhaust tubing length is increased, thereby reducing the effectiveness of an auxiliary exhaust fan. Further, Kaiser's 

foreman testified that on other occasions when inadequate air flow was 

detected, the exhaust fans were moved closer to obtain proper ventilation at the face. 

]:_/ Kaiser admitted that the air volume and velocity at the working face 

were below the levels required by its approved ventilation plan. 

)_/ Section 109(a) of the 1969 Act provides in pertinent part: 

(1) The operator of a coal mine in which a violation occurs of a 

mandatory health or safety standard ••• shall be assessed a civil 

penalty by the Secretary ••• which penalty shall not be more than 

$10,000 for each such violation •••• 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 vioiation, and the demonstrated good 

faith of the operator charged in attempting to achieve rapid compliance after notification of a violation. [Emphasis added]. 

!±) The question of causation is relevant to Kaiser's argument that it 

was not negligent because the judge found no negligence on Kaiser's part 

with respect to the failure to properly maintain the road curtains. 

985 
Finally, both the foreman and inspector agreed that after the tubing was 

shortened and the fan was moved closer to the face, in conjunction with 

the-proper positioning of the road curtains, proper air flow was obtained. 

Therefore, we reject Kaiser's argument that record evidence does not 

support a finding that the placement of the fan and tubing was not a 

cause of the inadequate air flow. 

The judge's conclusion that Kaiser .failed to exercise.reasonable 

care to insure that the required volume and velocity of air were maintained at the face is also supported by substantial evidence in the 

record. The Act imposes on the operator "a high degree of care to 

insure the health and safety of persons in the mine." U.S. Senate, 

Committee on Labor and Public Welfare, Legislative History, 94th Cong., 

1st Sess. at 1515. The inspector observed considerable float coal dust 

extending 15 to 20 feet from the face. The continuous miner operator 

was situated within the area of the dust concentration. The inspector's 

tests revealed that only 1900 cubic feet of air at a velocity of 18 feet 

per minute was being delivered to the face, substantially less than the 

airflow requirements specified in Kaiser's ventilation plan. The fact' 

that the 387 feet of exhaust tubing being used fell within the 400 root 

maximum permitted in the ventilation plan does not excuse the failure to 

maintain ~he Tequired air velocity at the face. Kaiser was aware of the 

interrelationship between length of tubing and amount of air flow. 

Further, the foreman's pre-shift examination was made at the last open 

crosscut, not at the face, and he admitted that satisfactory air velocity readings at the last open crosscut do not guarantee that required 

velocity is being maintained at the face. For these reasons, we affirm 

the judge's conclusion that Kaiser was negligent in failing to maintain 

the required volume and velocity of air at the working face. 

In assessing a $1,000 penalty for this violation, the judge fully 

considered the criteria set forth in section 109 of the Act. The 

penalty is appropriate and will not be d sturbed. 

A.1 E. Lawson,; Commissioner 

~00i~01A~lGJJ Marian Pearltrue1 Nease, ~ Commissioner 

986 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 3, 1979 

SECRETARY OF LABOR, Docket No. DENV 77-7-P 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

CAMBRIDGE MINING CORPORATION 

IBMA No. 77-50 

DECISION 

This penalty proceeding arises under the Federal Coal Mine Health 

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

On July 11, 1977, Administrative Law Judge Morehouse found that Cambridge 

Mining Corporation had violated 30 CFR §75.200, 1./ and assessed a civil 

penalty of $50. On appeal, J:./ Cambridge argues that no violation occurred. 

In finding a violation, the judge credited the testimony of the 

inspector who described a spalling condition along an unsupported rib in 

a working place. The judge found: 

Here it is clear that the 40 or 50 feet in question in the first 

entry did have "loose ribs" as observed by the inspector and as 

evidenced by respondent's decision to place wire mesh and gunnite 

on the ribs and not have the men work in that area until the gunniting took place. "Working place" means the area of a coal mine inby 

the last open crosscut ••• and the regulation cited above requires 

working places to be supported or otherwise controlled adequately 

to prevent persons from falls of the roof or ribs. It is true that 

respondent had made plans to adequately support the ribs with steel 

mesh and gunnite and had made the decision to have the men work in 

another entry until this was done. However, the evidence does not 

support the conclusion that the men had been withdrawn or specifically instructed by respondent not to go into that area and there 

had been no danger signs posted. It, therefore, must be concluded 

that this particular area was not adequately controlled. 

1./ Section 75.200 provides, in pertinent part: 

••• 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. 

2:./ The appeal was pending before the Board of Mine Operations Appeals 

as of March 8, 1978. Accordingly, it is before the Commission for disposition. Section 301 of the Federal Mine Safety and Health Amendments 

Act of 1977, 30 U.S.C. §961 (1978). 

79-8-2 

9-87 
A.~ Lawson, Commissioner 

;~ Marian Pear~n ~U"~lHQU Nease, Commissioner ~ 

988 
FEDERAl. MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K -STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

ISLAND CREEK COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

August 3; · 1979 

Docket No. PIKE 79-18 

UNITED MINE WORKERS OF AMERICA 

DECISION 

of Island Creek.Coal, 

A. E. Lawson, Commissioner 

~ ~Qwfuucw 1\\QCUQ 

Marian Pearlman Nease, Commissioner 

79-8-3 

-989" 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 15, 1979 

LOCAL UNION 5869, DISTRICT 17, 

UNITED MINE WORKERS OF AMERICA 

Docket No. HOPE 76-231 

IBMA No. 76-106 

v. 

YOUNGSTOWN MINES CORPORATION 

DECISION 

This case involves an application for compensation under section 

llO(a) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 

§801 et seq. (1976) (amended 1977) ["1969 Act"]. Applicants .are ~iners 

seeking pay for four hours working time lost on December 9, 1975, as a 

result of a section 104(b) withdrawal order being issued to Youngstown 

Mines Corporation (Youngstown). 1/ 

On November 7, 1975, a Mining Enforcement and Safety Administration 

(MESA) representative issued a notice to Youngstown pursuant to section 

104(b) of the 1969 Act, requiring abatement by November 10, 1975, of a 

violation of 30 CFR §75-1704 for failure to maintain required travelable 

passageways, to be designated as escapeways. Between November 7 and 

December 4, 1975, several intermittent work stoppages occurred, in which 

the applicants participated. During this period, the MESA representative 

extended the abatement period on several occasions. These extensions 

indicated that work was in progress to abate the violation, that work 

stoppages had occurred, and that additional time was needed to obtain 

compliance. On December 9, 1975, the MESA representative issued a 

withdrawal order to Youngstown which stated in pertinent part: "Necessary 

action to abate upon the expiration of extensions of time was not taken." 

1./ Section 104(b) of the 1969 Act provided for issuance of a withdrawal order in the event an operator failed to abate a violation of a 

mandatory safety or health standard within the abatement period prescribed by the notice of violation and any extensions of that period. 

79-8-8 

990 
The withdrawal order was issued on the afternoon shift, all miners 

on that shift were withdrawn from production work and were detailed to 

the work of abating the violation for the balance of the shift. 2/ As 

a result every miner on this shift worked in the abatement process for 

the balance of the shift and therefore received pay for the entire 

shift. The evening shift, which included the applicants began work at 

3:45 p.m., the regular starting time for that shift. All miners were 

assigned to the abatement work. On this shift, however, the applicants 

worked for only four hours and were then sent home. The applicants were 

paid for the first four hours of the evening shift--the hours they 

worked on abatement--but not for the remaining four hours of the shift. 

Applicants filed this claim under section llO(a) of the 1969 Act 

claiming entitlement to compensation for the four hours of the evening 

shift that they did not work. Section llO(a) provided, in pertinent 

part: 

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

an order issued under section 104 of this title, all 

miners working during the shift when such order was 

issued who are idled by such order shall be entitled to 

full compensation by the operator at their regular 

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

more than the balance of such shift. If such order 

is not terminated prior to the next working shift, 

all miners on that shift who are idled by such order 

shall be entitled to full compensation by the operator 

at their regular rates of pay for the period they are 

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

[Emphasis added.] 

The parties filed a joint stipulation of facts and waived an 

evidentiary hearing. On June 18, 1976, Administrative Law Judge 

Kennedy issued his decision. He granted the application and awarded 

four hours compensation, with six percent interest from December 9, 

1975, the day of idlement, until the compensation is paid. Youngstown 

appealed the judge's decision and its appeal is before the Commission 

for disposition. 1./ 

]:_/ Section 104(d) of the 1969 Act provided, in pertinent part: "The 

following persons shall not be required to be withdrawn from, or 

prohibited from entering, any area of the c-oal mine subject to an 

order issued under this section: (1) any person whose presence in 

such area is necessary, in the judgment of the operator or an authorized 

representative of the Secretary, to eliminate the condition described 

in the order •••• " 

1/ Section 301 of the Federal Mine Safety and Health Amendments Act 

of 1977, 30 U.S.C. §961 (1978). 

991 
Youngstown first contends that section llO(a) obligates an operator 

to pay compensation only for the first four hours of the next working 

shift fo 1 lowing issuance of a withdrawal order. It argues that a 

withdraw .l order has the effect of "officially idling" the miners even 

if it does not bring about their actual idlement. According to Youngstown, 

the applicants were "idled" for the first four hours of the evening 

shift, even though they performed abatement work during that period 

pursuant to section 104(d). Because they were paid for this four-hour 

period, Youngstown. contends the appli~ants have been paid all compensation 

due under section llO(a). 

We reject Youngstown's interpretation of section llO(a). Section 

llO(a) provides that if a section 104 order "is not terminated prior to 

the next working shift all miners on that shift who are idled by such 

order shall be entitled to full compensation • • • but for not more than 

four hours of such shift." In the instant case, after performing four 

hours of abatement work the miners were sent home. At the time that 

they were sent home the withdrawal order was still outstanding. But for 

the withdrawal order, the miners would have worked and received compensation for the final hours of their shift. Therefore, the miners were 

"idled" by the order within the meaning of section llO(a) for the' last 

four hours of their shift and are entitled to compensation. Section 

llO(a) does not say that compensation thereunder is limited to the first 

four hours of the succeeding shift. Rather, the plain words of section 

llO(a) require the payment of compensation in these circumstances. 

Youngstown's reliance on the decision of the Interior Department's 

Board of Mine Operation• Appeals in Island Creek Coal Co., 5 IBMA 276 

(1975), is misplaced. In Island Creek, a section 104(b) withdrawal 

order was issued at 7:15 a.m. The night shift had ended at 7:00 a.m.; 

the day shift began at 7:30 a.m. The day shift employees were able to 

work for the first four hours of their shift before their facility was 

closed as a result of the withdrawal order. The UMWA filed an application 

for compensation on behalf of the miners. The administrative law judge 

rejected the UMWA's claim that the order issued "during" the day shift. 

The judge found that the order was issued prior to the start of the day 

shift and, therefore, that the day shift was the "next working shift" 

within the meaning of section llO(a). He also held, however, that the 

fact that the day shift employees worked for four hours after the order 

issued (for which they were paid) did not negate section llO(a)'s requirement that the miners be paid for the four hours that they were "idled." 
The UMWA appealed the judge's decision to the Board and argued that the 

judge erred in finding that the order was not issued "during" the day 

shift. The Board affirmed the judge's decision, stating: 

[T]he order in question was not issued "during the 

shift" and • • • the miners on the day shift connnencing 

at 7:30 a.m. are logically on the "next working shift" 

entitled to full compensation by·the operator at their 

regular rat.es of pay for the period they were idled, 

but for not more than 4 hours of such shift. 5 IBMA. at 

284. 

Thus, although the Board did not specifically address the issue, it 

affirmed the judge's conclusion that the miners were entitled to four 

hours compensation even though they were compensated for work performed 

during the initial four hours of the shift. Therefore, in spite of 

the reliance placed on it by Youngstown, Island Creek actually supports 

the result reached by the judge in the present case. !:±._/ 

The second issue raised by Youngstown is whether unlawful or 

unauthorized work stoppages by the miners seeking compensation should 

bar a compensation award if the work stoppages contribute directly to 

the failure to timely abate a violation, and thus to the issuance of 

!:±_/ Youngstown's further argument that the reporting pay provision 

of its collective bargaining agreement supports its interpretation 

of section llO(a) is also rejected. The assertion that Congress 

patterned section llO(a) compensation rights after the reporting 

pay provision in the industry collective bargaining agreement is 

supported only by reference to the Board's statement in Island Creek, 

supra, that "we are inclined to believe that the provisions of 

section llO(a) of the Act were designed with knowledge of and 

perhaps as an extension of the industry practice for payment of 

reporting pay." 5 IBMA at 283. The Board, however, did not cite 

any support for its "belie[f]", nor does Youngstown cite any 

legislative history or other authority. This is too scant a 

basis to equate statutory rights with private collective bargaining agreement provisions. Furthermore, the Board's phrase 

"extension of the practice" can be read to mean the granting of 

additional rights, not merely statutory adoption of existing 

contractual rights. Finally, as discussed above, the Board's 

views regarding "industry practice" and the intent of section 

llO(a) did not preclude it from affirming an award of compensation 

for the second four hours of the next working shift in that case. 

993 
the withdrawal order upon which the claim for compensation is based. 2.,/ 

Youngstown argues that in enacting section llO(a) Congress did not 

contemplate that compensation would be paid where, as contended here, 

the order causing the miners to be idled resulted from the conduct of 

the miners. To do so, Youngstown asserts, is to reward "wrongdoing" on 

the part of the miners and to work an "injustice" on Youngstown. We 

affirm the judge's rejection of Youngstown's asserted defense for the 

following reason. ~/ 

We believe that important policy considerations dictate that an 

unlawful or unauthorized work stoppage defense should not be entertained 

by the Commission in a compensation case. ]_/ To hold otherwise would 

require the Commission to determine in each such case whether a work 

stoppage violated the collective bargaining agreement or was otherwise 

unauthorized or unlawful. Such a determination is intimately i~volved 

with the specialized law of union-management relations and would thrust 

the Commission into resolution of issues which should be resolved by ~he 

grievance-arbitration process or by other tribunals with direct jurisdiction over such disputes. 

2_/ The parties stipulated that "[n]one of the work stoppages ••• were 

authorized by the Respondent or by the Wage Agreement by which the 

parties hereto are governed in their relationship with one another." 

~/ We do not base our decision on the ground that the argument raised 

by Youngstown is an untimely challenge to the validity of the withdrawal 

order. Although work stoppages, lawful or otherwise, might provide a 

basis for extending an abatement period, this does not answer the question here. It may·well be that safety conditions fully warrant the 

issuance of a withdrawal order for failure to abate even though such 

failure is due solely to an unauthorized or unlawful work stoppage. 

Thus, the employer may concede the necessity of withdrawal and still be 

consistent in arguing against compensation to those responsible for the 

work stoppage and consequent failure to abate. 

]_/ Furthermore, on the record before us, we find the connection between 

the work stoppages and the failure to abate too tenuous to support a 

conclusion that the work stoppages were the cause of the failure to 

abate. (See Judge's Decision at n. 7.) 

994 
Not entertaining a work stoppage defense in compensation cases will not 

work an injustice to operators, for they are left with other more appropriate remedies for financial harm caused by unlawful work stoppages 

~., arbitration or damage actions under section 301 of the TaftHartley Act, 29 U.S.C. §185). Other forums are more appropriate than 

the Commission for resolving issues so closely related to collective 

bargaining and union-management relations. '§_/ 

The third issue raised by Youngstown on appeal is whether the judge 

erred in including interest in the award of compensation. The Board of 

Mine Operations Appeals rejected a claim that interest is awardable 

under section llO(a) of the 1969 Act in UMWA v. Rushton Mining Co., 3 

IBMA 231 (1974), aff'd on other grounds sub nom., Rushton Mining Co. v. 

Morton, 520 F.2d 716 (3d Cir. 1975). The Board's decision in Rushton, 

however, is void of any rationale for disallowance, except for the 

observation that section llO(a) does not expressly provide for such relief. 

Courts of appeals have considered an analogous issue under the National 

Labor Relations Act and have overwhelmingly subscribed to the allowance 

of interest in backpay awards. 2./ In Philip Carey Manufacturing C~mpany 

v. NLRB, 331 F. 2d 720, 729-731 (6th Cir. 1964), cert. denied, 379 U.S. 

888, the Sixth Circuit held: --

'§_/ Our decision is limited to the work stoppage defense asserted here. 

We do not foreclose the assertion of other affirmative defenses in 

compensation cases. 

9/ Reserve Supply Corp. of Long Island v. NLRB, 317 F.2d 785 (2d Cir. 

1963); International Brotherhood of Operative Potters v. NLRB, 320 F.2d 

757 (D.C. Cir. 1963); NLRB v. Globe Products Corp., 322 F.2d 694 (4th 

Cir. 1963); Marshfield Steel Co. v. NLRB, 324 F. 2d 333 (8th Cir. 1963); 

Revere Cooper & Brass, Inc. v. NLRB 325 F.2d 132 (7th Cir. 1963); NLRB 

v. George E. Light Boat Storage, Inc., 373 F.2d 762 (5th Cir. 1967). 

995 
It is well established that the omission of a 

mention of interest in statutes which create obligations does not show necessarily a Congressional 

intent to deny interest. (Citing Rodgers v. United 

States, 332 U.S. 371, 373] •••• 

It is recognized under our legal system that 

wage-earners are heavily dependent upon wages, which 

more often than not constitute the sole resource to 

purchase the necessities of life from day to day •••• 

Many wage-earners who are deprived of their wages 

doubtlessly find it necessary to borrow money to sustain 

themselves and their families, paying rates of interest 

at six percent or higher. 

As under the National Labor Relations Act, we believe that the 

purposes of the compensation provision under the 1969 Act are best ' 

served by allowing interest on compensation awards, even though tne 

Act does not expressly provide for interest. Accordingly, we decline 

to follow the Board's decision in Rushton Mining Co., supra. 

For the foregoing reasons, the decision of the judge awarding 

compensation and interest is affirmed. 

A. E. Lawson, Commissioner 

\__\~n ;i lCLt( 'QQ ~'1 ~JD~H l\),DCUQ . Marian Pearlma~ Nease, Commissioner 

996 
ADMINISTRATIVE LAW JUDGE DECISIONS 

AUGUST 1, 1979 - AUGUST 31, 1979 

FEDERAL·MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 2.b03 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEW JERSEY ZINC COMI>ANY, 

Respondent 

AUG 7 :3 ._, 

DECISION 

·Civil Penalty Proceedings 

Docket No. WILK 79-59-PM 

A/O No. 28-00393~05002 

Docket No. WILK 79-100-PM 

A/O No. 28-00393-05003 

Sterling Mine & Mill 

·ORDER TO PAY 

The above-captioned actions are two petitions for the assessment 

of civil penalties for thirty-two alleged violations of the Act. 

At the hearing on July 5, 1979, the Solicitor moved to withdraw 

two of the violations on the grounds that the conditions described 

were not covered by the cited standards. The Solicitor's explanations 

were accepted from the bench and the two items in question were dismissed. 

The originally assessed amount for the remaining items was $2292. 

The Solicitor-advised at the hearing that the parties had agreed to 

settle these items. He explained each of them individually in detail. 

Most of them did not present particularly serious violations and in 

many instances the Solicitor stated that he was not prepared to prove 

the existence of negligence. Even more importantly, the operator had 

no prior history of violations and the cited violations in fact, 

occurred during the first inspection of this mine under the 1977 Act. 

The recommended settlements totalled $1603. In view of the circumstances which are fully set forth in the administrative transcript of 

the hearing, the recommended settlements are approved. 

ORDER 

The operator is ORDERED to pay $1603 within 30 days from the date 

of this decision. 

c.-'---'-\A Paul Merlin 

999 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K ~TREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GEORGE F. PETTINOS, INC., 

Respondent 

August..,_, 1979 

Civil Penalty Proceedings 

Docket No. WILK 79-83-PM 

A.C. No. 28-00510-05001 

Docket No. WILK 79-127-PM 

A.c. No. 28-00510-05002 

Docket No. YORK 79-1-M 

A.c. No. 28-00510-05003 

Manumuskin Plant & Dredge 

DECISION 

Appearances: ,Anthony c. Genetto, Esq., Office of the Solicitor, 

u.s. Department of Labor, New York, New York, for 

Petitioner; 

Western c. Overholt, Esq., Philadelphia, Pennsylvania, 

for Respondent. 

Before: Chief Administrative Law Judge Broderick 

Statement of the Case 

On January 23, 1979, a petition for assessment of civil penalty 

was filed by the Mine Safety and Health Administration seeking penalties for. 20 alleged violations of mandatory health and safety standards promulgated under the Federal Mine Safety and Health Act of 1977 

(WILK 79-83-PM). Similar petitions were filed in Docket Nos. WILK 

79-127-PM (March 9, 1979), for two alleged violations and YORK 79-1-M 

(April 2, 1977), for three alleged violations. Answers were filed on 

February 28, 1979, March 26, 1979, and April 18, 1979, respectively, 

requesting a hearing in each case •. On April 17 and April 19, 1979, 

these three dockets were consolidated a~d scheduled for hearing. A 

hearing was held in Philadelphia, Pennsylvania, on May 23, 1979. 

Vernon R. Denton and Arthur J. Toscano testified on behalf of Petitioner. No witnesses were called by Respondent. 

The parties stipulated that the annual man hours of employment 

at Respondent's facility would fall in the 60,000 to 400,000 range. 

There were 19 employees at the plant at the time of inspection. On 

the basis of these facts, I find that Respondent is a medium-sized 
operator for the purposes of determining the appropriateness of the 

penalties to the size of the operator's business. There is no evidence that the penalties will affect Respondent's ability to contirn.ie 

in business. 

The record establishes that Respondent in the case of each violation found herein to have occurred, made a good faith effort to 

achieve rapid compliance after notification of the violation. 

A review of Respondent's history of previous violations shows 

that no increase of the penalties is warranted on that basis. 

Findings are hereafter made with respect to the occurrence, 

gravity and attendant negligence of each violation. 

Findings of Fact 

I. WILK 79-83-P 

(1) Citation No. 204556, issued May 2, 1978, alleged a violation of mandatory standard 30 CFR 56.12-18 which requires that 

principal pow~r units shall be labeled to show which units they control. Four to five of Respondent's pump house switches on the dredge 

were not labeled. The inspector testified that Respondent abated the 

citation on the same day by extraordinary means. I find that a violation of 30 CFR 56.12-18 was established. The violation was not serious 

and was not caused by Respondent's negligence. 

(2) Citation No. 204557, issued May 3, 1978, alleged a violation 

of mandatory standard 30 CFR 56.11-1, which requires walkways and ramps 

to have handrails. A 10- to 12-foot span of wooden·walkway which provided access to the pipeline was unsecured. The inspector testified 

that the violation was abated in good faith -On the same day. I find 

that a violation of the mandatory standard contained in 30 CFR 56.11-1 

did occur. The violation was serious because of the possibility of 

injury, but was not the result of negligence. I also find that 

Respondent took extraordinary steps to comply after the citation was 

issued. 

(3) Citation 204558, issued May 2, 1978, alleged a violation of 

mandatory standard 30 CFR 56.12-4, which requires that lights which 

present a shock or burn hazard shall b~ guarded. Respondent's pump 

house had an unguarded wall-mounted light located 6 feet above the 

floor. The inspector testified that Respondent abated the citation by 

installing a guard. The inspector also testified that the violation 

was neither serious nor the result of negligence. I find that the 

violation was not serious, was not negligent and was abated rapidly 

and in good faith. 

(4) Citation No. 204559, issued May 2, 1978, alleged a violation 

of 30 CFR 56.11-27 which requires that scaffold and working platforms 

1001 
shall be maintained in good condition, provided with handrails and 

properly secured. The inspector testified that a wooden plank at the 

top of the wash plant which connected the walkway to a window had no 

handrails or tow bar and lacked secure planking. An employee who 

slipped could fall 12 feet onto concrete. Respondent removed the 

planking. The inspector testified that he terminated the citation 

because the hazard no longer existed. The inspector further stated 

that the foreman did not know how long the scaffolding had been there, 

however, it had not been used by any employee. I find that the viola~ 

tion was not serious. I further find that Respondent abated the violation rapidly and in good faith. 

(5) Citation No. 204560, issued May 2, 1978, alleged a violation 

of 30 CFR 56.11-12 which requires openings above, below or near travelways through which men or materials may fall to be protected by railings, barriers or covers. The inspector testified that an unguarded 

and uncovered opening existed at the bottom landing of the wet plant 

ladder. He stated that an employee could injure himself if he slipped. 

and fell into the 10-foot by 16-foot opening. The inspector stated 

that the Respondent exhibited good faith in abating the violation. I 

find that a violation of 30 CFR 56.11-12 occurred. The evidence.shows 

that the condition was known or should have been known to the Respondent. I find that the violation was serious and was due to Respondent's negligence. Respondent did, however, abate in good faith. 

(6) Citation No. 204613, issued May 2, 1978, alleged a violation of 30 CFR 56.11-27 which requires that scaffolds and working 

platforms be substantial in construction and provided with handrails. 

The inspector testified that-an elevated platform around the wash 

plant had two open sides without railings. He stated that a worker 

could fall 10 feet from the platform onto the roof and possibly to the 

floor, which would result in injury. The inspector further stated 

that the Respondent took extraordinary steps to gain compliance by 

stopping production and welding metal railings on all sides of the 

platform. He stated that such condition should have been known to 

management although the platform was only used occasionally. I find 

that a violation did occur which was known or should have been known 

to the Respondent. I find that Respondent was negligent. Because of 

the possibility of serious injury, the violation was serious. Respondent abated the violation in good "faith. 

(7) Citation No. 204614, issued May 2, 1978, alleged a violation of 30 CFR 56.12-13 which requires that permanent splices and 

repairs made in power cables be insulated to a degree at least equal 

to that of the original and sealed to exclude moisture. The inspector testified that a long leaf cord With insulation damage in several 

places was in contact with a steel ladder. The inspector stated that 

there was high humidity and any further damage to insulation might 

energize the ladder causing an arc or a shock. The inspector stated 

that the management was or should have been aware of the damage 

1002 
because they had.purchased a new light. The cord had been inadequately repaired. I find that a violation occurred. I further find 

that the Respondent was aware or should have been aware of the condition and therefore the violation resulted from Respondent's negligence. 

The violation was moderately serious because it could have resulted in 

a serious injury to an employee. I find that the Respondent abated the 

violation promptly and in good faith. 

(8) Citation No. 204615, issued May 2, 1978, alleged a violation 

of 30 CFR 56.20-3 which requires that all workplaces, passageways and 

storerooms must be kept clean, orderly and free from protuding nails, 

splinters, holes, or loose boards. The inspector testified that the 

fourth gate metal walkway which was located 10 feet above the concrete 

floor of the wet plant was not kept clear of trip hazards. He stated 

that there were accumulations of links of pipe and other materials on 

this walkway. He further testified that the violation was abated 

immediately by removal of the obstructing material. I find that a 

violation occurred. It did not result from the Respondent's negligence. Because of the possibility of injury, I find that the violation was ooderately serious. The Respondent abated the violation 

promptly and i~ good faith. 

(9) Citation No. 204616, issued on May 2, 1978, alleged.a violation of 30 CFR 56.11-2 which requires that crossovers, elevated 

walkways, elevated ramps and stairways be of substantial construction, provided with handrails, and maintained in good condition. The 

inspector testified that a plank at the back end of the dry and wash 

plant was unsecured from the floor to the walkway. The plank which 

also had no railing, was 10 feet above the ground. Although the walkway was only used occasionally, injury was probable •. The inspector 

stated that the violation was abated by securing the plank at one end 

and tying a tight line across the plank to serve as a hand line until 

origina~ railing could be designed. I find that a violation of 30 CFR 

56.11-2 was established because of the absence of railing and security 

for the wooden plank walkway. The condition was known or should have 

been known to the Respondent and the violation was the result of 

Respondent's negligence. Because of the possibility of serious injury 

from this violation, I find that it is serious. Respondent promptly 

and in good faith abated the condition. 

(10) Citation No. 204617, issued .on May 2, 1978, alleged a violation of 30 CFR 56.16-6 which requires'that valves on compressed 

gas cylinders shall be protected by covers when being transported 

or stored and by a safe location when the cylinders are in use. The 

inspector testified that a compressed gas cylinder without protective 

valves was on a cart in Respondent's plant. If the cylinder fell off 

the cart or the cart overturned, the cylinder might explode. The 

Respondent abated the citation by protecting the entire top of the 

gauge assembly with a cover. The inspector further testified that 

the Respondent could not have known or predicted the hazard. I find 

1003 
that a violation of 30 CFR 56.16-6 was established; that there is no 

evidence that the violation should have been known to the Respondent 

and therefore that the violation did not result from Respondent's 

negligence. The violation was not serious and Respondent abated the 

violation promptly and in good faith. 

(11) Citation No. 204618, issued on May 2, 1978, alleged a violation of 30 CFR 56.12-25 which provides ·that all metal enclosing or 

encasing electrical circuits be grounded or provided with equivalent 

protection. The inspector testified that a rigid conduit, which contained a three-conductor cable for the 240 AC motor was broken. He 

stated that if the motor faulted, the housing would be energized and 

would present a safety hazard. Respondent abated the violation by 

replacing a whole section of the rigid conduit. The inspector stated 

that Respondent was not negligent and that injury was improbable 

because the motor was elevated slightly above the ground. I find that 

a violation did occur. However, there is no evidence that the Respondent was aware or should have been aware of this condition. The condition therefore, did no.t result from Respondent's negligence. ·The 

violation was moderately serious because although an injury is 

unlikely to h~ve occurred, if it had occurred, it would have been 

serious. I find that Respondent abated in good faith. 

(12) Citation No. 204561, issued on May 3, 1978, alleged a violation of 30 CFR 56.14-1 which provides that gears, sprockets take-up 

pulleys and similar exposed moving machine parts which may be contacted by or cause injury to persons must be guarded. The inspector 

testified that he observed an unguarded V-belt in the bagger compressor. The Respondent ab&ted the citation by removing the motor. 

I find that a violation of 30 CFR 56.14-1 was established. The evidence does not indicate that the violation was due to Respondent's 

negligence. The condition was moderately serious, but it was abated 

promptly and in good faith. 

(13) Citation No. 204562, issued on May 3, 1978, alleged a violation of 30 CFR 56.14-1 in that the head pulley of the shuttle guard 

was not guarded on the walkway side. Petitioner and Respondent have 

proposed a settlement of $40. I approve this settlement and find that 

Respondent was not negligent and demonstrated good faith in installing 

a guard. 

(14) Citation No. 204563, issued on May 3, 1978, alleged a violation of 30 CFR 56.11-27 in that the elevated platform by the bagger 

station did not have a railing. Petitioner and Respondent propose a 

settlement of $38. I approve this settlement and find that Respondent 

failed to exercise reasonable care, but was not reckless. Abatement 

was prompt and in good faith. 

(15) Citation No. 204564, issued May 3, 1978, alleged a violation of 30 CFR 56.14-1 in that the tail pulley for the return cooler 

1004 
conveyor was not adequately guarded. Petitioner stopped production 

and installed a guard to abate the citation. Petitioner and Respondent proposed a settlement of $44. I approve this proposed settlement 

and find that the violation could not have been known to the Respondent. Respondent demonstrated good faith in promptly abating the 

citation. 

(16) Citation No. 204566, issued May 3, 1978, alleged a violation of 30 CFR 56.11-27 in that the scaffold for the tripping arm of 

the No. 27 tower did not have railings. Respondent installed an 

interim guard on a rail in rapid compliance with the citation. The 

Petitioner and Respondent agreed to a proposed settlement of $38. I 

approve the settlement and find that the condition cited could not 

have been known to the Respondent. The Respondent demonstrated good 

faith in its extraordinary and rapid abatement of the violation. 

(17) Citation No. 204568, issued May 3, 1978, alleged a violation of 30 CFR 56.14-1 in that the V-belt drive of the wheel mounted 

car loader was not guarded. Respondent paid two men overtime to 

fabricate a guard to abate the citation. Petitioner and Respondent 

agreed to a proposed settlement of $38. I approve this settlement 

and find that the condition could not have been known to Respondent. 

I also find that extraordinary steps were taken to comply with the 

regulation. 

(18) Citation No. 204619, issued May 3, 1978, alleged a violation of 30 CFR 56.12-32 in that the cover for the juncture box was 

damaged and not properly secured. Respondent replaced a damaged cover 

on the juncture box by replacing the entire unit. Petitioner and 

Respondent agreed to a proposed settlement of $26. I approve this 

settlement and find that the condition could not have been known by 

the operator. Respondent abated the violation in good faith. 

(19) Citation No. 204620, issued May 3, 1978, alleged a violation of 30 CFR 56.12-34 in that the hanging light bulbs at the 

second set of screens were not guarded. Respondent abated the citation by bringing in electrical contractors who installed guards on 

lighting fixtures throughout the plant area. Petitioner and Respondent agreed to a proposed settlement of $38. I approve the settlement and find that the condition could not have been known or 

predicted by the Respondent. Responden~ abated the violation in 

good faith. 

(20) Citation No. 204569, issued on May 4, 1978, alleged a violation of 30 CFR 56.5-50 because Respondent's employees were exposed, 

without protective hearing equipment, to noise levels of 145 percent 

where the permissible noise level was 100 percent. Respondent abated 

the citation by instructing the employees in hearing protection and 

by posting warning signs. The parties agreed to settle the matter 

for a payment of $32. I approve the settlement. 

1005 
II. WILK 79-127-PM 

(21) Citation No. 204600, issued June 7, 1978, alleged a violation of 30 CFR 56.20-11 which requires visible warning signs to be 

posted in areas where health or safety hazards exist, that are not 

immediately obvious to employees. Respondent did not have signs 

posted in an area where there was danger·of inhaling respirable dust. 

Respondent abated the citation by instal1ing several signs and 

instructing his men in the wearing of respirators. Petitioner and 

Respondent proposed a settlement of $122 which I approve. 

(22) Citation No. 219272, issued on September 22, 1978, alleged,, 

a violation of 30 CFR 56.20-3 which requires that all service rooms, 

floors and workplaces be kept clean, orderly and in a dry condition. 

The inspector testified that the floor in the dry mill wash room/ 

store room was slippery and wet and covered with toilet paper. The 

room had a sink, toilet, portable type air compressor, metal storage 

cabinet and drum of lubricant grease. I find that the evidence shows 

that this constituted a work place under 30 CFR 56.20-3, and that a 

violation was established. The violation was not the result of the 

Respondent's negligence, but it was serious because of the possibility 

of injury. I find that the condition was abated rapidly and in good 

faith. 

III. YORK 79-1-M 

(23) Citation No. 220101, issued November 15, 1978, alleged a 

violation of 30 CFR 56.11-2 which requires crossovers, elevated walkways, stairways to be of suostantial construction and properly 

maintained. The planking of the wooden walkway abo"Ve the water on 

the east side of the dredge were deteriorated and poorly maintained. 

Respondent assigned three men to abate the citation. Petitioner and 

Respondent proposed the amount assessed ($66) as a settlement and I 

approve the settlement. 

(24) Citation No. 220103, issued November 15, 1978, alleged a 

violation of 30 CFR 56.11-12 which requires openings above, below and 

near travelways through which men or materials may fall, be protected. 

The railing to protect men from ~alling from the head box and the 

wash platform was not maintained. Petjtioner and Respondent agreed 

upon the amount assessed ($66) as a settlement, and I approve this 

settlement. 

(25) Citation No. 220106, issued November 15, 1978, alleged a 

violation of 30 CFR 56.14-1 which requires guarding of exposed moving 

machine parts which may cause injury to persons. The inspector testified that the chain drive of the 65 wet elevator was not adequately 

guarded. The Respondent abated the citation by installing a new guard 

to completely enclose the chain. I find that a violation of 30 CFR 

1006 
56.14-1 was established. The violation was not the result of Respondent's negligence, but was moderately serious because of the possibility that a serious injury would result. Respondent abated the 

condition in good faith. 

Conclusions of Law 

1. The undersigned administrative law judge has jurisdiction 

over the parties .and the subject matter of this proceeding. 

2. At all times relevant to this proceeding, Respondent was 

subject to the provisions of the Federal Mine Safety and Health Act 

of 1977. 

3. Except as otherwise found herein, Respondent violated the 

mandatory health and safety standards as charged in the notices of 

violation. 

4. The penalties hereafter assessed are based on my findings 

that the violations occurred, and on a consideration of the following criteria with respect to each violation: The operator's history 

of previous vi9lations, the appropriateness of the penalty to the size 

of the business of the operator, whether the operator was negligent, 

the effect on the operator's ability to continue in business, the 

gravity of the violations and the demonstrated good faith of the 

operator in attempting to achieve rapid compliance. 

ORDER 

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

Respondent is assessed the following penalties (including herein the 

contested citations and the proposed settlement agreements): 

Notice Date 30 CFR Standard Penalty 

204556 05/02/78 56.12-18 $ 25 

204557 05/02/78 56.11-1 75 

204558 05/02/78 56.12-4 25 

204559 05/02/78 56.11-27 75 

204560 05/02/78 56.11-12 100 

204613 05/02/78 56.11-27 100 

204614 05/02/78 56.12:.13 75 

204615 05/02/78 56 .20..:3 50 

204616 05/02/78 56.11-2 100 

204617 05/02/78 56.16-6 25 

204618 05/02/78 56.12-25 35 

204561 05/03/78 56.14-1 35 

204562 05/03/78 56.14-1 40 

204563 05/03/78 56.11-27 38 

204564 05/03/78 56.14-1 44 

1007 
204566 05/03/78 56.11-27 38 

204568 05/03/78 56.14-1 38 

204619 05/03/78 56.12-32 26 

204620 05/03/78 56 .• 12-34 38 

204569 05/04/73 56.5-50 32 

204600 06/07 /78 56 .20-1 122 

219272 09/22/78 56.20-3 75 

220101 11/15/78 56.11-2· 66 

220103 11/15/78 56.11-12 66 

220106 11/15/78 56.14-1 50 

Total $1,393 

ORDER 

Respondent is ORDERED to pay penalties in the total amount of 

$1,393 within 30 days from the date of this decision. 

Distribution: 

J j:'.I , ~ , . ' /;; f;J ;1u:S .. ·f-1..J 1·l1

CP./,,·7.c,/L 

.._./ James A. Broderick 

Chief Administrative Law Judge 

Anthony c. Genetto, Esq., Office of the Solicitor, U.S. Department of Labor, 1515 Broadway, New York, NY 10036 (Certified 

Mail) 

Western C. Overholt, Jr., Esq., 1200 Western Savings Fund 

Building, Broad and Chestnut Streets, Philadelphia, PA 19107 

(Certified Mail) 

Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson 

_Boulevard, Arlington, VA 22203 

1008 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

1.;c 

KENNECOTT COPPER CORPORATION, 

Applicant 

Application for Review 

v. Docket No. DENV 79-457-M 

Citation No. 336249; 2-13-79 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

.. . Bingham Canyon Mine 

Appearances: 

Before: 

DECISION 

James B. Lee, Esq., and James M. Elegante, Esq., Parsons 

Behle & Latimer, Salt Lake City, Ut, for Applicant; 

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Respondent.· 

Administrative Law Judge Michels 

This· proceeding involves an application for review of Citation 

No. 336249, issued at Applicant's Bingham Canyon Mine on February. 13, 

1979, charging a violation of 30 CFR 55.12-45. Kennecott Copper 

Corporation filed its application on March 13, 1979, pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815(d). MSHA filed an answer on March 30, 1979, admitting the issuance of the citation and asserti~g that it was properly 

issued. 

A hearing was held in Salt Lake City, Utah, on May 15 and 16, 1979. 

Both parties were represented by counsel. No representatives of the 

miners appeared as a party; however, representatives of certain un~pns 

appeared as witnesses for the Applicant and testified in opposition[ 

to the MSHA charge. These were Joseph Dispenza, President of United 

Steel Workers Local 485 (Tr. 180-186); Robert D. Nicholls, Executive 

Board, Local 1081, International Brotherhood of Electrical Workers 

(IBEW) (Tr. 186-196); Arthur Don Beals, Business Manager, (IBEW) 

(Tr. 196-200); Ben E. McAlester, Jr., Secretary of United Transportation Union Local 1615 (Tr. 214-218). Mr. Dispenza also wrote a letter 

to the Federal Mine Safety and Health Review Commission on April 19, 

1979, protesting a requirement that the steel towers be grounded to 

the track. 

On July 26, 1979, pursuant to the Commission's Interim Procedural 

Rules at 29 CFR 2700.15(a), Applicant filed a motion requesting 

permission to withdraw its application for review. As grounds for its 

proposed action, Applicant advised that MSHA has concluded that the 

1009 
citation involved in this proceeding was "issued in error because 

the 1978 National Electrical Code was not properly incorporated by 

reference at 30 CFR 55.12-45, upon which the citation was based. 11 

Attached to Applicant's motion was a copy of a letter from Respondent's 

attorney confirming this information. Subsequently, on July 31, 1979, 

Respondent filed. a copy of the notice which va~ated Citation No. 

336249. This notice of vacation provides: 

The citation was issued in error, based on Mandatoiy 

Standard 55.12-45, which makes reference to the National 

Electric Code. The Office of the Federal Register rules 

that regulations concerning incorporation by reference must 

specify the edition incorporated, and that the incorporation is limited to the material as it exists on the effec~ 

tive date of the regulation. Mandatory Standard 55.12-54 

was promulgated in the Federal Register in 1969, and reference to the National Electric Code of 1978, is invalid. 

Refer to Part 51.8(c) F.R. 23614, November 4, 1972. 

After considering the above circumstances, Applicant's motion 

to withdraw it's application for review is hereby GRANTED. This 

proceeding is DISMISSED. :!_/ . 

"'?- ... c-1. . ' A. A. 

if~~/~ Franklin P. Michels 

Administrative Law Judge 

Distribution: 

James B. Lee and Kent W. Winterholler, Esqs., Parsons, Behle & 

Latimer, 79 South State Street, Salt Lake City, UT 84111 

(Certified Mail) 

Stephen P. Kramer, Esq., MSHA Trials Branch, Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

Mr. Joe Dispenza, President, Local No. 385, United Steelworkers 

of America, 1056 South Second East, Sandy, UT 84044 (Certified 

Mail) 

Mr. David Bennett, President, Local ·392, United Steelworkers of 

America, Kennecott Copper Corporation, Magna, UT 84044 

(Ceritfied Mail) 

1/ I reco~nend that the Exhibit A-17, which is a heavy piece of 

ilectrical equipmenc, be returned to the Applicant. 

1010 
FEDERAi.. 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. 

VALLEY CAMP COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. MORG 78-46-P 

A.O. No. 46-01483-02023V 

Valley Camp Coal No. 1 Mine 

DECISION AND ORDER ON MOTION 

TO APPROVE SETTLEMENT 

Upon remand, the parties move for approval of a settlement 

reducing the amount of the penalty assessed from $10,000 to 

$7,000. For the reasons set forth in the motion and based upon 

my independent evaluation and de novo review of the/circumstances, 

I find the penalty proposed is in accord with the purposes and 

policy of the Act. 

Accordingly, it is ORDERED that the motion to approve 

settlement be, and hereby is, GRANTED. It is FURTHER ORDERED 

that the operator pay the amount of the penalty agreed upon, 

$7,000, on or before Friday, August 2 1979 and that, subject 

to payment, the captioned petition b D SMISSED. 

Distribution: 

Ronald B. Johnson, Esq., Schrader, Stamp & Recht, 816 Central 

Union Bldg., Wheeling, WV 26003 (Certified Mail) 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

Harrison Combs, Esq., United Mine Workers of .America, 900 15th' 

Street, N.W., Washington, DC 20005 (Certified Mail) 

1011 
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. 

VALLEY CAMP COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. MORG 78-46-P 

A.O. No. 46-01483-02023V 

Valley Lamp Coal No. 1 Mine 

MEMORANDUM OPINION 

As the order in this matter indicates, I make it a practice in 

considering motions to approve settlements under section llO(k) 

of the Act to make an independent evaluation and to conduct a 

de novo review of the circumstances and particularly the evidence 

relating to the gravity and negligence involved in the violations 

charged. Furthermore, I fully and candidly discuss these 

evaluations with counsel and the parties. 

It has recently come to my attention that the Chairman of 

the Subcommittee on Health and Safety of the House Committee on 

Education and Labor, Mr. Gaydos, disapproves of the practice and 

feels that if a judge during the course of a settlement conference 

expresses views about the sufficiency of a penalty or indicates that 

the amount of the penalty may be increased if the facts as to 

culpability are proved at an evidentiary hearing he may be accused 

of attempting to "intimidate" or "penalize" an operator for insisting 

on a hearing. 1/ 

1/ The object of the Congressman's solicitude was John S. Lane & 

Son., Inc., of Westfield, Massachusetts. The company operates 

3 sand and gravel pits that produce 1,250,000 tons of aggregate 

annually. The operator admitted the violations charged and contested 

only the amounts of the penalties assessed. The operator paid 

$573.00 in settlement of seven violations for an average of $82.00 

per violation. Four other violations were withdrawn at the suggestion 

of the presiding judge. The penalties for these violations totall·ed 

$136.00. Mr. Gaydos' informant was Leland B. Seabury, Esq. counsel 

for the operator. 

1012 
On the other hand, Congressman Gaydos found nothing intimidating 

about the judge's reconnnendation that the government withdraw four 

charges he considered unsupported by the evidence disclosed during 

settlement discussions. If that strikes one as being somewhat biased 

against even-handed enforcement it may only be attributable to the 

fact that the Congressman relied on an ex parte account from a 

disgruntled operator who so firmly believed he was coerced that his 

counsel failed to appeal the case to the Connnission. 

I have previously and publicly made clear that I do not consider 

it my function to "rubber stamp" settlement proposals. ];./ See, 

Pomerleau Bros., WILK 79-4-PM, D&O of February 13, 1979; Kaiser 

Steel Corporation, DENV 79-430-P, D&O of June 4, 1979; Alabama ByProducts, BARB 78-2, et al., D&O of May 31, 1979. Certainly there 

is no purpose in discussing settlement with the parties if the judge 

is not prepared to be honest and forthright about his views or 

policy with respect to the issues. 

When I disapprove a settlement, I think the parties are entitled 

to know why. And when I tell the parties that based on my evaluation 

of a violation I think the amount proposed is insufficient to deter 

future violations and ensure voluntary compliance but that I am 

prepared to approve an increased amount, I am not attempting to 

intimidate anyone. 

];/ In Pomerleau, I noted: 

The plain language of section llO(k) and the legislative history 

of the Act convincingly establish that the Presiding Judge is 

charged with responsibility for making just such an independent 

evaluation and de novo review of proposed settlements. To 

approve settlements merely on the basis of unsubstantiated 

representations of counsel with respect to gravity, negligence 

and the adequacy of penalties imposed by the Assessment Office 

would be violative of the Connnission's duty "for reviewing the 

enforcement activities of the Secretary of Labor." Connnents 

of Senator Williams at Confirmation Hearing, Federal Mine Safety 

and Health Review Commission, (Aug. 28, 1978), page 1. 

* . * * 

The sooner operators, and especially the noncoal operators, are 

disabused of the notion that they have nothing to lose and everything to gain by filing a notice of contest of every penalty 

assessed, the sooner the enforcement program will become more 

manageable and respected. 

1013 
Furthermore, 

1. When I tell the Solicitor I do not think a charge 

is warranted in view of the disclosures made during 

the course of settlement discussions, I consider I 

am doing only what fairness requires, and 

2. When I tell the operator my evaluation leads me to 

believe a violation is more serious than he is willing 

to concede and warrants a penalty larger than that 

proposed, I consider I am doing only what section 

llO(k) of the Act requires, and 

3. When I tell the operator that if he is not content 

with my evaluation he should realize the hearing is 

de novo and that I may be required by the evidence 

to assess a much larger as well as a much smaller 

penalty, I am again doing only what candor and the law 

requires. 

And if a lawyer with that knowledge tells his client to settle because 

he feels coerced and intimidated and not because he believes he 

cannot win the case then I suggest the operator needs a new lawyer. 

Based on my feedback from counsel, I find it is in the interest of 

the parties and of fair and efficient enforcement for the judge to 

divulge his reasons for denying a settlement, including his views 

as to the amount of the penalty he would consider warranted if the 

operator is found guilty as charged. 

After all, any competent lawyer knows that regardless of the 

judge's views or findings an arbitrary assessment is subject to 

reversal on appeal. What then is to be gained by ill-informed and 

intemperate threats to 11 stomp11 judges act in accordance with 

their conscientious view of the law? 

1014 
FEDERAL.MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MAGMA COPPER COMPANY, 

Respondent 

Docket No. DENV 79-320-PM 

A/O No. 02-00842-05003 

Docket No. DENV 79-321-PM 

A/O No. 02-00151-05003 

Docket No. DENV 79-433-PM 

A/O No. 02~00842-05001 

Docket No. WEST 79-32-M 

A/O No. 02-00842-05002 

San Manuel Mill and Mine 

DECISION 

Appearances: 

Before: 

Marshall P. Salzman, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner MSHA; 

N. Douglas Grimwood, Esq., Twit~y, Sievwright & 

Mills, Phoenix, Arizona, for Respondent. 

Judge Merlin 

These cases are petitions for the assessment of civil penalties 

filed under section 110 of ~he Act by the Secretary of Labor, Petitioner, against Magma Copper Company, Respondent. 

The cases were duly noticed for hearing and were heard as scheduled on June 19, 1979. At the hearing, pursuant to agreement of the 

parties and in accordance with the regulations, the subject docket 

numbers were consolidated for hearing and decision. 

At the hearing, the parties agreed to the following stipulations: 

1. · The operator is the owner and operator of the subject Magma 

Copper Company, its mine and mill. 

2. The operator, its mine and mill, are subject to the jurisdic· 

tion of the Federal Mine Safety and Health Act of. 1977. 

1015 
3. The administrative law judge ha~~-jurisdiction of these cases. 

4. The· inspectors who issued. the subject citations were duly 

authorized representatives of the Secretary, and all witnesses who 

will testify for both the Secretary and the operator are generally 

accepted as experts in mine safety. 

5. True and correct copies of the subject citations were prop-

~rly served upon the operator. 

6. Copies of the subject citations and termination of the violations in issue in these proceedings are authentic and may be 

admitted into evidence for purposes of establishing their issuance 

but not for the purpose of establishing the truthfulness or relevancy 

of any statements asserted therein. 

7. Imposition of any penalty will not affect ·the operator's 

ability to continue in business. 

8. All alleged violations were abated in good faith. 

9. The operator has no history of prior violations. 

10. The operator is large. 

Citation Nos. 377156 and 377157 

The Solicitor moved to withdraw th.e petition with respect to 

Citation Nos. 377156 and 377157. The motion was granted from the 

bench. 

Citation No. 376720 

The Solicitor moved to withdraw from the petition Citation No. 

376720 without prejudice. This item is the penalty aspect of the 

"walkaround" provision involving the operator which is presently 

before the Commission. The motion to withdraw without prejudice 

was granted from the bench. 

Citation No. 377123 

The Solicitor moved to have a settlement approved for Citation 

No. 377123 in the amount of $56 which was the originally assessed 

amount. In view of the Solicitor's representation of moderate gravity 

and because of the operator's lack of previous history, the recommended settlement was approved from the bench. 

Citation No. 347618 

The Solicitor moved to have a settlement approved for Citation 

No. 347618 in the amount of $114 which was the originally assessed 

1016 
amount. In view of the Solicitor's representation that occurrence of 

the feared accident was unlikely and because of the operator's lack of 

previous history, the recommended settlement was approved from the 

bench. 

Citation No. 376616 

This citation, as amended, alleged a lack of guarding for rod 

mill Nos. 1, 9, 6, 8, and 10. The operator admitted the lack of 

guarding, and the originally assessed penalty of $210 was imposed from 

the·bench. 

Citation Nos. 376703, 376704, 376619, and 376701 

Since these citations contained the same condition and alleged 

the same violation as those set forth in Citation No. 376616, as 

amended, they were dismissed from the bench. 

Citation No. 376705 

This citation, as amended, alleged a lack of guarding for the 

Nos. 13, 15, 16, 17, 18, 19, and 20 ball mills. The operator admitted 

the lack of guarding, and the original assessed penalty of $280 was 

imposed from the bench. 

Citation Nos. 376706, 376707, 376708, 376709, 376710, and 376712 

Since these citations contained the same conditions and alleged 

the same violations as those set forth in Citation No. 376705, as 

amended, they were dismissed from the bench. 

Citation No. 377135 

This citation, as amended, alleged a lack of guarding for regrind 

mill Nos. 1 and 2. The operator admitted the lack of guarding, and 

the originally assessed penalty of $80 was imposed from the bench. 

Citation No. 377136 

Since this citation contained the same condition and alleged the 

same violation as set forth in Citation No. 377135, as amended, it 

was dismissed from the bench. 

Citation No. 377129 

This citation, as amended, alleged a lack of guarding for bel~ 

drives on secondary crusher Nos. 1 and 2. The operator admitted the 

lack of guarding, and the originally assessed penalty of $80 was 

imposed from the bench. 

1017 
Citation No. 377130 

Since this citation contained the same condition and alleged the 

same violation as set forth in Citation No. 377129, as amended, it 

was dismissed from the bench. 

Citation No. 377131 

This citation, as amended, alleged a lack of guarding for belt 

drives on tertiary crusher Nos. 1, 2, 3, and 4 •. , The operator admitted 

the lack of guarding, and the originally assessed penalty of $160 was 

imposed from the bench. 

Citation Nos. 377132, 377133, 377i34 

Since these citations contained the same conditions and alleged 

the same violations as those set forth in Citation No. 377131, they 

were dismissed from the bench. 

Citation No. 376614 

The Secretary and the operator introduced documentary exhibits 

and testimony with respect to this citation. Upon the conclusion of 

the testimony, counsel for both parties waived the filing of written 

briefs, proposed findings of fact, and conclusions of law. Instead, 

they agreed to present oral argument and receive a decision from the 

bench. After considering the evidence and oral argument, a decision 

was rendered from the bench as follows (Tr. 60-62): 

I find a violation existed. Section 57.14-1 requires 

that gears, sprockets, chains, drive, h~ad, tail and 

tak~up pulleys, fly wheels, couplings, shafts, saw blades, 

fan inlets, and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury to 

persons shall be guarded. The machinery here was a drive 

shaf.L.~nd a coupling. These items fall squarely within 

the mandatory ·standard. In addition, I believe the evidence from both the inspector and the operator's witness 

demonstrates that these parts may be contacted by persons 

and may cause injury. It is not necessary und~r this mandatory standard to establish precisely the probability of 

injury or of contact by individuals. It is enough that 

there may be contact and that there may be injury. Both 

I those elements are present here. 

I further find that as the Solicitor admitted 

(Tr. 53), the violation was of minimal gravity. The 

inspector and the operator's assistant safety director 

were in conflict with respect to whether an individual or 

1018 
his clothes could get caught in the moving drive shaft. 

The drive shaft was moving at two seventy (270) rpm's so 

that if.someone tripped or fell, injury could result. 

However, I recognize that in accordance with the evidence 

people are not usually in the area in question, and that 

when equipment is being serviced, it is supposed to be 

turned off. It is a truism that if everyone did what they 

were supposed to do, the mining industry would not be as 

hazardous as it is. Therefore, I cannot find that the 

violation was nonserious. I find that the.gravity was 

substantially reduced because the likelihood of an 

accident occurring was remote. 

I further find the operator was negligent. This 

equipment should have been guarded. The guard that was 

present could have bien moved a little closer, and 

although it would not have completely covered the coupling, it would have to some extent, reduced the danger. 

I take note of the decisions furnished by the operator's counsel with respect to the accessibility of certain equipment to employees as a condition for the finding 

of a violation. That may be the rule under the Occupational 

Health and Safety Act. It has never been the rule under 

the Mine Safety Act. I further recognize that at least 

one administrative law judge of the Federal Mine Safety and 

Health Review Commission has held that where the evidence 

does not establish the necessity of a guard, a violation 

does not exist. I further note, however, that the decision 

in that case which is Great National Corporation, Docket 

No. DENV 77-59-P, also is based upon the ground that the 

relevant machinery was in any event, adequately guarded. 

As counsel for the operator pointed out, I am not bound 

by a decision of another administrative law judge. In my 

view, the mandatory standard is clear in covering this 

situation. It is not for me to substitute my judgment for 

that of the Secretary in writing the regulations, as long 

as the regulations are not inconsistent with the Act. 

I also take into account, in accordance with the 

stipulations, that the operator has no prior history of 

violations, that the violation was abated in good faith, 

and that the operator is large in size. Taking all the 

statutory factors into account, a penalty of fifty dollars 

($50) is assessed. 

Citation No. 377125 

The Secretary and the ope~ator introduced documentary exhibits 

and testimony with respect to this citation. Upon conclusion of the 

1019 
testimony, counsel for both parties waived the filing of written 

briefs, proposed findings of fact, and conclusions of law. Instead, 

. they agreed to present oral argument and receive a d.ecision from the 

bench. After considering the evidence and oral argument, a decision 

was rendered from the bench as follows (Tr. 84-86): 

I find a violation existed. Section 57.20-3 directs 

that workplaces, passageways, storerooms, and service 

rooms shall be kept clean and orderly. The area in 

question is on the east side of the conveyor belt. 

Admittedly, a wider walkway exists on the west side of 

the beltway. The area in question is approximately 

two and a half (2-1/2) feet wide. Nevertheless, the area 

pn the east side which is the area covered by the citation, is the only way to reach the east side of the 

beltway. It was open-ended, and furthermore, ·the evidence demonstrates that maintenance and cleanup people 

did walk through this area. Moreover, these people were 

in this area to perform their assigned tasks. In addition, the area was available for complete transit from 

one end to the other, to any individual who should be so 

inclined. I recognize that, as I stated before, a wider 

walkway existed on the west side of the beltway, on the 

west side of the conveyor belt. Nevertheless, people do 

not always do what is expected of them, and a great many 

of the mandatory standards are written to restrict the 

individual's freedom of action, in order sometimes to 

protect them from themselves. 

Accordingly, I hold that the area covered by the 

citation was a passageway within the purview of the mandatory standard. The existence of the cited materials is 

undisputed. Moreover, the inspector's estimate that the 

accumulation had been t~ere for several days also is 

undisputed. Based upon all this evidence, I find once 

again that a violation existed. 

The inspector testified a person could slip and fall 

because of the debris. The hazard was increased because 

the passageway was an incline and was narrow. -Based upon 

this evidence, I find the violation was serious. 

The operator's mill superintendent stated that the 

operator has a cleanup plan whereby this area is cleaned 

every three to five days. However, the inspector's estimate that the accumulation cited in the order had existed 

for several days, is uncontradicted. Based upon the 

estimate that the accumulation in question existed for 

several days, I find the operator was negligent. 

1020 
In accordance with the stipulations of the parties, I 

find the operator has no history of previous violations, 

that the violation was abated in good faith, 'that the 

operator is large in size, and that the imposition of any 

penalty will not affect the operator's ability to continue 

in business. A penalty of eighty-five dollars is imposed. 

Citation Nos. 347617 and 347406 

The Secretary and the operator introduced documentary exhibits 

and· testimony with respect to both these citations at the same time. 

Upon the conclusion of the testimony, counsel for ho.th parties waived 

the filing of written briefs, proposed findings of fact, and conclusions of law. Instead, they agreed to present oral argument and 

receive a decision from the bench. After considering the evidence 

and oral argument, a decision was rendered from the bench as follows 

(Tr. 136-139): 

The following is a decision with respect to Citation 

Nos. 347617 and 347406, both of which involve the same 

mandatory standard and identi.cal facts. Section 57 .12-32 

requires that inspection and cover plates on electrical 

equipment and junction boxes shall be kept in place at all 

times except during testing or repairs. There is no dispute that covers were not present on the two brake release 

switches involved in the two subject citations. The evidence indicates that heavier wiring had been placed in the 

switches and that the existing covers would not fit over 

them. According to the operator's witness, the covers 

had been off for a month. This is far too long a' time to 

fall within the exception in the mandatory standard for 

repairs. Covers such.as these simply cannot be off indefinitely, especially where, as discussed here~fter, the 

hazard presented by their absence was -so great. 

The brake release switches were located in the hoist 

pit. In order to reach the hoist pit, a man would have 

to go down into the basement.and then back up again, six 

feet of stairs into the hoist pit. The hoist pit was not 

directly accessible from the surface. These factors do 

not, however, affect the existence of a violation. Covers 

were required. They were not provided and indeed they had 

not been provided for a very long period of time. Therefore, the mandatory standard was violated. 

One of the inspectors testified that there was enough 

voltage in the exposed wiring to electrocute an individual, if he touched the open wiring. The testimony also 

shows that electricians and maintenance people such as 

greasers worked in this area. Even if these people were 

1021 
experienced, they should not have been exposed to this 

hazard. Moreover, as the inspector stated, the floor was 

greasy and a man could slip and reach out, thereby touching the brake release switch, and electrocuting himself. 

Experience would be no protection against such an involuntary reaching out. Based upon this testimony, I find the 

violation was extremely serious. 

I recognize that there usually was a hydraulic oil 

pan at the top of the stairs leading to the hydraulic 

pit, and that it would impede an individual from readily 

touching the switch. This, however, is not a defense 

either to the existence of a violation or to the conclusion of extreme gravity. The hydraulic oil pan was not 

designed and indeed, did not function as some sort of 

guard. It certainly did not replace the need for a cover. 

One of the inspectors testified that fittings in the hoist 

pit were greased approximately once a week. So, at least, 

once a week or so, the hydraulic oil pan had to be removed 

for the greaser to get into the area. Moreover, an individual could step into the pan and get into the area. It 

is no answer to say that a sensible or experienced man 

would not do this. The Mine Safety Act is designed to 

protect experienced and sensible people from doing the 

unexpected. The Mine Safety Act limits the freedom of 

individuals for their own protection. 

Finally, although the inspector's testimony at that 

point was not entirely clear, I find that there was no pan 

in place on the day of his inspection. ·Accordingly, I 

state once again that the violation exist~d and that it was 

extremely serious. The absence of covers for one month 

demonstrates a high degree of negligence, especially in 

view of the serious haz~rd presented. 

In accordance with the stipulations entered into 

by the parties, I find that the operator has no history 

of previous violations, that there was good faith abatement, that the imposition of a monetary penalty will not 

affect the operator's ability to continue in business, 

and that the operator is large in size. 

I impose a penalty of two hundred and fifty dollars 

for each of these citations. I would state that were it 

not for the fact that the operator has no history of prior 

violations, the penalty would be much higher. I believe 

that the extreme gravity warrants the imposition of this 

penalty which is substantially more than the Solicitor 

recommended. 

1022 
ORDER 

It is hereby ORDERED that as set forth herein, the dismissal of 

certain citations from the bench be AFFIRMED and that the imposition 

of penalties from the bench with respect to other ~itations, as is 

also set forth herein, be AFFIRMED. 

In accordance with the foregoing determinations, the operator is 

ORDERED to pay $1,615 within 30 days from the date of this decision. 

;=\f.~~~ Assistant Chief Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 450 G0lden Gate Avenue, Box 36017, 

San Francisco, CA 94102 (Certified Mail) 

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills, 

1700 TowneHouse Tower, 100 West Clarendon, Phoenix, AZ 

85013 (Certified Mail) 

Administrator, Metal and Nonmetal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

1023 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSlON 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

40l5 WILSON BOULcVARD 

ARLINGTON, VIRGINIA 22203 

UNITED STATES STSEL CORPORATION, . Applications for Review 

Applicant 

.v. 

SECRETARY OF LABOR, 

MINE.SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF A:1ERICA, 

Respondent 

! 

Docket No. BARB 79-276 

Order No. 240507 

January 16, 1979 

Docket No. BARB 79-277 

Order No. 240508 

January 16, 1979 

Concord Mine 

DECISION 

Appearances: Billy M. Tennant, Esq., Pittsburgh, Pennsylvania, 

· for Applicant; 

Terry Price, Esq., u.s. Department of Labor, Office 

of the Solicitor, Birmingham, Alabama, for Respondent. 

Before: Judge Forrest E. Stewart. 

Two applications for review were filed pursuant to section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 83 Stat. 742, 

30 u.s.c. §§ 801-960 and applicable regulations. 

The orders of withdrawal, dated January 16, 1979, alleged that 

a violation of section 75.316 of Title 30, Code of Federal Regulations, 1/ existed at the Concord Hine on that date. 

1/ 30 CFR 75.316 provides: 

"A VP.ntilation system and methane ang 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 en 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 reviewed.by the operator 

and the Secretary at least every 6 months." · 

.1024 
Order No. 240507 alleged that the following condition or practice 

existed: 

The Company's approved Ventilation System and Methane 

and Dust Control Plan was not being complied with, in that 

the line brattice was 19 feet and 10 inches from the deepest penetration of the working face of no. 18 room on 

No. 011 working section. The Company's approved plan states 

line brattice· will be maintained to within 10 feet of the 

deepest pentration of all working faces. 

Order No. 240508 alleged that the following condition or practice 

existed: 

The Company's approved Ventilation System and Methane 

and. Dust Control Plan was not being complied with, in that 

the line brattice was 20 feet and 6 inches from the deepest 

penetration of the working face of No. 19 room on No. 011 

working section. The Company's approved plan states line 

brattice Will be maintained to Within 10 feet Of the deepest penetration of all working faces. 

It was established at the hearing that, as alleged in Order of 

Withdrawal No. 240507, the brattice extended only to within 19 feet 

10 inches of the deepest penetration of the face in 18 Room. It was 

also established that the line brattice extended only to within 

20 feet 6 inches from the deepest penetration of the face in 19 Room, 

as alleged in Order No. 240508. The evidence further established that 

no coal was actually being cut, mined or loaded when the inspector 

observed these conditions. 

In a bench decision rendered at the hearing, .the above-captioned 

applications for review were granted and Order Nos. 240507 and 240503 

were vacated. 

It was held that under the factual circumstances of this case, 

line brattice was required to be maintained to within 10 feet of the 

area of deepest penetration of all working faces (hereinafter 10-foot 

line brattice) only when coal was actually being cut, mined or loaded. 

Although there is a general requirement for continuous use of 

line brattice to provide adequate ventilation in 30 CFR 75.302, J:../ the 

'!:._/ 30 CFR 75.302 reads, in pertinent part, as follows: 

"Properly installed and adequately maintained line brattice or 

other approved devices shall be continuously used from the last open 

crosscut of an entry or room of each working section to provide adequate ventilation to the working faces for the miners and to remove 

flammable, explosive, and noxious gases, dust, and explosive fumes, 

unless the Secretary or his authorized 'representative permits an 

exception to this require:aent, where 3uc11 exception will not pose a 

hazard to the miners." (Emphasis added.) 

1025 
10-foot criteria is set forth in 30 CFR 75.302-l(a) which specifically 

requires line b~attice at that particular distance only while coal is 

being cut, mined or loaded. · 

Petitioner has not alleged a violation of 30 CFR 75.302 and the 

evidence does not establish that the line brattice in place at the 

time of the inspection fails to meet the requirements of that section. 

What petitioner alleges is a failure to meet the .10-foot requirement 

as set forth in Respondent's approved ventilation plan which may con- . 

. tain additional requirements authorized by 30 CFR 7 5 .302-l(a). This 

section reads in pertinent part as follows: 

Line brattice or any other appro.ved device used to 

provide ventilation to the working face from which coal 

is being cut, mined or loaded and other working faces so 

designated by Coal Mine Safety Manager, in the approved 

ventilation plan, shall be installed at a distance no 

greater than 10 feet from the area of deepest penetration to which any portion of the face has been advanced 

* * *· 

This provision clearly designates the working face 3/ as that 

place at which brattice is to be maintained. The modifying phrase 

"from which coal is being cut mined or loaded" specifies the time at 

which brattice is to be maintained. All working faces must be provided with line brattice meeting the 10-foot criteria during that 

time period. 

In argument, counsel stated that it was Petitioner's position 

that the l!lOdifying phrase "refers to a location or a place and not 

the duration."· If this were the correct interpretation, and the 

phrase really referred to a place rather than a period of time, the 

inspector would have been able to cite a violation of 30 CFR 

75.302-l(a), rather than relying on the language of the ventilation 

plan. The inspector indicated in his testimony that he understood 

that he would have been able to issue a citation under a regulation if 

coal were being cut, mined or loaded. In fact, if the location of 

the line brattice had been in violation of 30 CFR 75.302-l(a), the 

inspector should have invoked that section in order to be in compliance with MSHA policy that directed the issuance of citations for 

violations of specific requirements of regulations rather than identical requirements in ventilation plans. !!../ 

3/ "Working face" is specifically defined in 30 CFR 75.2(g)(l) as 

"[A]ny place in a coal mine in which·work of extracting coal from its 

natural deposit in the earth is performed during the mining cycle." 

4/ Thi·s decision does not hold that the inspector may not cite an 

operator for violations of additional requirements. in ventilation 

plans and it does not reach the legal issue as to the effect of 

a. faih1re of· an inspector to follow MSHA policy or guidelines. 

1026 
As to the place where the requirement is effective, section 

75.302-l(a) requires 10-foot line brattice at all working faces. 

The· ventilation plan also requires 10-foot line brattlce at all 

working faces. 5/ 

As to the time when the requirement is effective, section 

75.302-l(a) requires .10-foot line brattice when coal is actually 

being cut, mined or loaded. The ventilation plan is silent as to 

the time when 10-foot line brattice is required during advance mining. .This silence cannot be cons trued as adding additional requirements to those in the resulation which require 10-foot line brattice 

only while coal is being cut, mined or loaded. In order for the operator to be penalized for failure to maintain 10-foot line brattice at 

times other than those specified in the regulation, the approved plans 

should clearly state the additional requirements in such a way that the 

operator is informed of his obligations. 

It is obvious that the operator did not intend that brattice must 

be maintained within 10 feet of the working face at all ttmes when it 

submitted the ventilation plan and the roof control plan and that the 

district manager did not so intend when he approved those plans. As a 

practical matter, line brattice is maintained 10 feet fro~ the deepest 

penetration of the working face in order to prevent the accumulation of 

methane and dust. The inspector testified that brattice is necessary 

principally at· those times during which the cutting, mining or loading 

of coal being performed. 

To construe the ventilation plan in a manner that would require 

.10-foot line brattice at all times, even while coal was not being cut, 

mined or loaded, would create a conflict with the roof control plan 

which contained a specific exemption. By the inspector's admission, 

there were times during which line brattlce did not have to be maintained to within 10 feet of the face since the approved roof control 

plan specifically allowed the removal of line brattice during roof 

bolting operations. The provision for its removal was included 

because the line brattice presented a hazardous obstruction during 

bolting. The inspector mentioned one occasion on which this obstruction resulted in severe injury to a miner's arm. 

The language "of all working faces" in Respondent's ventilation 

plan clearly does not mean that brattice be maintained at all times 

in all working faces. With regards to maintenance of brattice at 

working faces during advance mining, Respondent's ventilation plan 

imposes requirements no stricter than those contained in 30 CFR 

75.302-l(a). 

~/ With regard to advance mining, the ventilation plan reads in pertinent 

part that "line brattice w:i.11 be maintained to wit~1in 10 feet of the 

area of deepest penetration of all wor~ing faces." 

1027 
ORDER 

The bench decision is hereby AFFIRMED. Accordingly, it is 

ORDERED that Order Nos. 240507 and 240508 are VACATED and the operator's applications for review are GRANTED. 

Distribution: 

Forrest E. Stewart 

Administration Law Judge 

Billy M. Tennant, Esq., United States Steel Corporation, 

600 Grant Street, Pittsburgh, PA 15230 (Certified Mail) 

Terry Price, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1929 9th Avenue, South, Birmingham, AL 35205 

(Certified Mail) 

Joyce A. Hanula, Legal Assistant, United Mine Workers of America, 

900 15th St., NW., Washington, DC 20005 (Certified Mail) 

1028 
FEDERAL MINE SAFETY AND HEALTH REVU?.:W COMIVHSSftON 

OFFICE OF ADMINISTRATIVE LAW JUDGE!;. 

40i5 WILSON BOULEVARD 

ARLINGTON, V1RG INIA 22203 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. BARB 79-255-P 

A/O No. Ol-00550-03007V 

Boothton Strip Operations 

BURGESS MINING AND CONSTRUCTION 

CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISION 

Murray A. Battles, Esq., Birmingham, Alabama, for 

Petitioner; 

William E. Prescott, 111, Esq., Birmingham, Alabama, 

for Respondent. 

Judge Forrest E. Stewart 

The operator was assessed a penalty of $200 in a bench decision 

at a hearing held on May 25, 1979, for not prov.iding adequate berms 

on the main haul road at its Boothton Strip Operations. 

Citation No. 239933 which was issued on May 17, 1978, alleged 

that the following condition or practice existed: 

Berms were not provided on the outer banks of the main haul road 

leading to and from the mine. 

A subsequent citation dated May 22, 1978 stated: 

Citation No. 239933 dated 5/17/78 is here by modified 

to show correct mine as Boothton strip operation. This 

citation is further modified tq show the following. The 

condit·ion of inadequate berms existed on the haulage road 

leaving to company pit No. 24. The foreman had to travel 

the road a minimum of twice a day, because it was the 

only means of access to the mine. The foreman who was a 

certified man said, that no berm needed to be provided, 

that there had never been a berm and no one told him he 

needed a berm. It appeared that a berm had been provided 

but had weathered down. 

Citation No. 239933 was further modified by another citation 

dated May 22, 1978, which stated: 

1029 
The citation number 239933 dated 5-17-78 is extended 

because·of a misunderstanding.concerning the violation. 

Citation No. 239933 dated 5-17-78 is hereby modified to 

state the following: the inadequate berm begins approximately 2 tenths of a mile from the concrete bridge ~hat 

crosses the Cahaba River and extends for approximately 250 

feet (on the right side of the road). From this point the 

condition exists· for 3 tenths (on the left side of the 

road). Then. at a dis·tance of the 8 tenths of a mile from 

the bridge; the cond~tion exists on both sides of the -road 

approximately 100 feet. These conditions were viewed while 

entering the pit from the bridge side. 

The citation was terminated on May 24, 1978, after additional. 

berms were provided: 

In its answer to the Petition to assess civil penalty, Respondent 

stated: 

1. That no violation of 30 CFR 77.1605-k occurred. 

2. That the road in question had been previously inspected 

and the location of necessary berms specifically pinpointed 

and berms constructed as required. 

3. That the area in question did not require berms. 

At the hearing, it was established ~hat in 1972 a notice of violation had been issued for failure to have berms on the haul road and 

that Respondent had filed an application for review. After colils.truction of berms on the portions of the 9-mile haul road designated by 

Petitioner, the notice of violation was terminated and Respondent 

withdrew its application for review. 

On May 17, 1978, Inspector Franklin who was unaware of the 1972 

violation and its abatement, issued citation No. 239933 because, in 

his judgement, additional berms were needed. 

The hazardous conditions on most of the 9-mile haul road had 

been eliminated in 1972 by the installation of berms on the designated 

sections but a slight hazard still existed in the areas design~ted by 

the inspectors in 1978. Berms were required in the remaining areas 

under criteria issued by Petitioner in October 1972. 

The primary issues here -are whether ·or not there was a violation 

of the mandatory safety standard cited aad the penalty which sll.ould 

be assessed if there was, in fact, such a violation. The criteria as · 

set "forth in section 105(b) of the Federal Mine Safety and Health Act 

of 1977, 30 use § 820 are: 

1030 
One, the appropriateness of the penalty to the size of 

the business·of the operator charged. 

Two, the operator's history of previous violations. 

Three, whether the operator was negligent. 

Four, the gravity of the violation. 

Five, the demonstrated good faith of the operator 

charged in attempting to achieve rapid compliance of noti-· 

fication. 

And six, the effect of the penalty on the operators' 

ability to continue in business. 

The record supports a finding that the company produced somewhat 

less than half a million tons of coal per year at the time of the violation. The tonnage produced in the particular pit at which the violation was ci~ed was not established; however, it was established that 

the pit at the time of the citations was not being extensively used and 

not much coal was being mined at the time. 

The record shows that from May 15, 1977 until May 14, 1979 there 

were 56 paid violations in the total amount of $6,105.60. Most of 

these violations were cited at the time of the inspection during 

which the instant case arose. For the size of the company and the 

size of the mine the record of violations is moderate. 

It is found that the steepness of the embankment next to the 

roadway was· such that berms or guardrails should have been installed 

under the criteria set forth in Government's Exhibit No. 7. 

As to whether or not the operator was negligent, I find that at 

a prior inspection in 1972, a number of berms and guardrails were prescribed and that the operator complied with these requirements and 

installed these berms and guardrails. As a result of the abatement 

of this violation and these conditions and termination of the notice 

of violation, the operator withdrew its application for review. 

While this .does not prevent a violation from issuing, it does bear on 

the questions of negligence a_nd the gravity of the violation. The 

operator after complying with the requirements of the Bureau of Mines 

in 1972, continued to operate without any further notice that additional berms were required until the inspection was performed in 1978. 

Therefore, he had no way of knowing that additional berms or guardrails were .required. The operator did _not know that he was in _viola:'."' 

tion and there is no indication that he _unreasonably failed to take 

action to abate the condition for which the citation was eventually 

issued in 1978. The 1978 abatement also has some bearing on the 

gravity of the violation. It at least shows that the inspector at 

1031 
that time considered the berms and the quardrails to be sufficient to 

meet the requirements of the law and possibly to make the operation 

safer. We do have evidence on the record that the embankments next to 

the sections of the roadway were steep and were of a nature as 

to cause a truck or an automobile to turn over and ·possibly cause 

injury to the occupant. Nevertheless, the greatest portion of the 

unguarded and unbermed roadway was effectively fitted with guards and 

had berms constructed on them in 1972. Only small portions of the 

nine miles of roadway remained unfitted with berms at the time of 

this citation. 

It therefore would be improbable that injury or death would occur 

as a. result of the operator's failure to have berms installed at the 

three locations where they had not been installed. At one point berms 

had not been installed for 250 feet on the right side of the road. At 

another point, they were missing for only three-tenths of a mile on 

the left side of the road. At the third point, they were missing for 

only 100 feet, on both sides of the road. 

As to the demonstrated good faith of the operator charged in 

attempting to achieve rapid compliance after notification of a violation, I find that the operator exercised good faith in abating the violation and erecting additional berms. Although the violation was not 

abated within the time alloted, the operator did have some foundation 

upon which to base a good faith argument as to whether berms were 

required by the regulation. After the original citation was modified 

to show the exact.nature of the abatement to br:ing to the operator in 

. compliance, the operator soon thereafter was ·successful in abating the 

condition. 

The final criteria hearing upon the assessment of a civil penalty 

is the effect of the penalty on the operator's ability to continue i11 

his business. The operator· has presented nothing to indicate that an 

appropriate penalty in this case would prevent him from continuing in 

his business; therefore, I find that a penalty would not effect his 

ability to continue. 

In view of the findings concerning the six statutory criteria, I 

find that the assessment of a penalty of $200 is appropriate. 

The bench decision issued on May 25, 1979 is AFFIRMED. 

ORDER 

Respondent is ORDERED to pay the amount of $200 within 30 days 

of the date of this decision. 

Forrest E. Stewart 

Administrative Law Judge 

1032 
Distribution: 

Stephen P. Kramer, Esq., Office of the Solicitor, MSHA, U.S. 

·Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

w. E. Prescott, III, Esq., Burgess Mining and Construction 

Corporation, P.O. Box 26340, Birmingham, AL 35226 

(Certified Mail) 

1033 
FEDERAL MINE SAFETY AND HEALTH REVIE\'V COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WILK 79-33-PM 

A/O No. 43-00063-05001 

v. 

Websterville Quarry & Mill 

WELLS-LAMSON QUARRY CO., INC., 

Respondent 

Appearances: 

Before: 

DECISION 

John Casler, Esq., Office of the Solicitor, U.S. 

Department of Labor, Boston, Massachusetts, for 

Petit~oner; 

Gary D. McQuesten, Esq., Richard E. Davis Associates, 

Barre, Vermont, for Respondent. 

Judge Stewart 

PROCEDURAL BACKGROUND 

The above-captioned case is a civil penalty proceeding brought 

pursuant to Section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 820(a), hereinafter referred to as the Act. 

On November 28, 1978, Petitioner filed with the Mine Safety and 

Health Review Commission a petition for assessment of civil penalty 

for the seven violations included under this docket number. Respondent filed its answer to this petition on January 9, 1979. A hearing 

.was held on April 11, 1979, in Montpelier, Vermont. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The violations alleged herein were observed by Federal Mine 

Inspector John Rouba in the course of a regular inspection of Respondent 1 s Websterville Quarry and Mill. This inspection was conducted 

over a 3-day period in May, 1978. 

The Websterville Quarry, an open-pit operation, is Respondent's 

only mine. Its 65 employees worked a total o.f 99, QOO man-hours in 

1034 
1978. The quarry did not operate on a profitable basis in 1978. 

There is, however, no indication on the record that any penalty 

assessed in this proceeding will have an adverse effect on the Respondent's ability to remain in business. There is no applicable history 

of prior paid violations. 

Citation No. 211911 was issued because the inspector observed 

that one of Respondent's Euclid haulage trucks had an inoperative 

backup alarm. The driver of the vehicle had parked it and was waiting 

to be called to haul waste materials. This condition was in violation 

of 30 CFR 56.9-2 which' requires that equipment defects affecting 

safety be corrected before the equipment is used. It was abated as 

quickly as was possible. 

The driver of the truck said that he had disconnected the alarm 

because he was tired of listening to it. Robert Stewart, Respondent's 

general manager testified that the company had no knowledge of the 

condition. Nevertheless, negligence existed on the part of Respondent 

because mine management should have known of the inoperative alarm. 

The absence of an operative alarm was obvious and the condition had 

existed for about 1 week, a long enough period of time to warrant its 

discovery. 

When the violation was observed by the inspector there were no 

workers in the vicinity of the vehicle. However, any of a number of 

employees could be exposed in the danger in the areas where waste 

materials are loaded onto the truck. In a noisy area, a worker might 

be unaware that the truck was backing up. If an accident were to 

occur, it could result in a fatality. 

Citation No. 211912 was issued because the inspector observed 

unguarded gears on the rope drum of the hoist. This condition was in 

violation 30 CFR 56.14-.:1, which requires that gears which may be contacted by persons, and which may cause injury to persons, shall be 

guarded. The condition was rapidly abated. 

The operator was negligent in that it knew of the condition yet 

failed to take steps to abate it. The gears had been unguarded for 

approximately 1 month. Mr. Stewart testified that the operator had 

waited to guard the gears.until it could obtain the opinion of an 

inspector. Mine management did not seek information concerning a 

proper guard from MSHA during this time. 

An accident was prob?ble. As an employee entered the hoist room, 

he could reach out and touch the exposed gears. Tnere were, however, 

some non-moving machine parts between the walkway and the gears. If 

an accident were to occur, the likely result would be mangling or loss 

of fingers or arms. 

1035 
Citation No. 211913 was issued because the inspector observed 

unguarded resistor grids on a 220-volt hoist motor. It was impractical to insulate these grids and they were not protected by their 

location. This condition was in violation of 30 CFR 56.12-23. The 

inspector testified that Respondent did everything i"n its power to 

abate the condition immediately; 

The operator was negligent in that it knew or should have known 

of the condition yet failed to abate it. The condition had existed 

for approximately 1 month and other grids in the v:i,cinity had been 

guarded. . 

It was probable that the condition would result in an accident. 

A walkway led to the exposed grids. An individual who contacted two 

of the wires simultaneously could be electrocuted. 

Citation No. 211914 was issued because several splices in the 

lead wires to a portable pump were insufficiently insulated. This 

condition was in violation of 30 CFR 56.12-13(b) which requires that 

splices in power cables be insulated to a degree at least equal to 

that of the original; and sealed to exclude mositure. The condition 

was corrected within the time set by the inspector for abatement. 

The operator was negligent in that it should have known of the 

insufficiently insulated splices. The condition of the wire was 

visually obvious and the wire was located in front of a walkway 

in an area where supervisory personnel can be found much of the 

time. 

It was probable that the condition would result in an accident. 

The area in which the wire was located was frequently damp. In the 

inspector 1 s judgement, the s.plices could have been wet enough to cause 

a person who stepped on th.e wire or grasped it to suffer electrical 

shock. This electrical shock could result in injury rangir..g from 

burns to electrocution. 

Citation No. 211915 was issued because railings had not been 

provided to prevent persons from falling off an elevated walkway. 

This condition was in violation of 30 CFR 56.11-2. It was promptly 

abated. 

The operator was negligent in thdt it should have known of the 

condition. It was visually obvious that the area was without guards. 

In fairness, it must be noted that the condition had existed for 

approximately 15 years. Moreover, Inspector Rouba had personally 

inspected the area on 4 or 5 prior occasions but had not issued a 

citation. 

The inspector testified that an accident was less than probable. 

The probability that an accident would occur was reduced by the 

1036 
remoteness of the area and the fact that orily a 4 foot section of the 

walkway was unguarded. If an accident were to occur a person could 

fall 6 feet into a pond of water which was below the-walkway. 

Citation No. 211916 was issued because a dry wooden _platform or 

insulating mat had not been provided at the control panel for the roll 

lathe at the wire-saw mill. This condition was in violation of 

30 CFR 56.12-20. It was immediately abated. 

The operator was negligent in that it should have known of the 

condition. A mill foreman was in the area at all times. 

The inspector testified that an accident would be probable if the 

panel became energized. The panel was equipped however, with ground 

fault indicator lights and circuit breakers. In the event that the 

panel became energized, the dampness of the area would increase the 

likelihood of accident and injury. The expected injury ranged from 

burns to electrocution. 

Citation No. 211917 was issued because a shaft on the boiler 

make-up pump motor was unguarded. The shaft was located at floor 

level in the wire-saw mill boiler room. The inspector cited a violation of 30 CFR 56.14-1. This section requires that shafts which may 

be contacted by persons, and which may cause injury to persons, shall 

be guarded. 

Mr. Stewart testified that the boiler in question was used only 

during winter months. It had been shut down in April, 1978, and was 

to be used next in October. After the machine was shut down, maintenance was undertaken. The guard was taken off and left off to allow 

for adjustments upon completion of the maintenance, Because the 

ma~hinery was not to be used until October, the shaft could not cause 

the injury contemplated in the regulation. The failure to guard the 

shaft on this boiler motor was, therefore, not in violation of section 

56.14-1. 

Citation No. 211918 was issued because access to the main mill 

plant control panel switches had not been kept clear of unnecessary 

materials. The walkway contained timber, boards and angle irons. 

This condition was in violation of 30 CFR 56.20-3(a). The inspector 

testified that the condition was corrected with an excellent degree 

of good faith. 

The operator was negligent in that the condition was visually 

obvious. The operator knew or should have known of its existence • 

. It was probable that a tripping accident would occur because of 

the condition. Employees had to walk over these materials· to get to 

the panel. The inspector observed Respondent's ·employees doing so. 

Minor injuries would be the expected result of a tripping accident 

in these circumstances, 

1637 
ASSESSMENT 

In consideration of the findings of fact and conclusions of taw 

contained in this decision, the following assessments are appropriate 

under the criteria of section 110 of the Act. 

Citation No. 

211911 

211912 

211913 

211914 

211915 

211916 

211918 

ORDER 

Penalty 

$72 

98 

72 

84 

84 

72 

72 

The civil penalty proceeding with respect to Citation No. 211917 

is hereby DISMISSED. 

The Respondent is hereby ORDERED to pay the sum of $554 within 

30 days of the date of this d.ecision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Michael v. Durkin, Esq., Office of the Solicitor, MSHA, 

U.S. Department of Lab.or, 4015 Wilson Boulevard, Arlington, VA 

22203 

Gary D. McQuesten, Esq., Richard E. Davis Associates, Inc., 

P.O. Box 666, Barre, VT. 05641 (Certified Mail) 

1038. 
FEDERAL l'VllNE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTII 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CUT SLATE, INC.; 

Respondent 

AVG ~ ~t1' 

Civil Penalty Proceeding 

Docket No. WILK 79-13-PM 

A.O. No. 30-00090-05001 

Potter Quarry and Mill 

DECISION AND ORDER ON MOTION TO APPROVE SETTLEMENT 

This matter was assigned to the presiding judge on May 19, 

1979. A review of the record disclosed that on December 20, 1978, 

the operator filed an answer admitting the three violations charged 

but contending that in view of his prompt abatement of the hazards 

cited the penalties assessed should be forgiven and remitted. ".!./ 

In 1976, the Board of Mine Operations Appeals held that the Mine 

Safety Act does not allow remittiturs, even for no-fault violations. 

R. M. Coal Company, 7 IBMA 64 (1976). Since the operator did not 

claim the penalties assessed were arbitrary or excessive except 

to the extent there was no provision for total remission and since 

there appeared to be no triable issue of fact, the parties were 

directed to confer and file a motion to approve settlement or 

appear at a prehearing conference in Arlington, Virginia on June 5 

to discuss their differences. 

When the operator refused to discuss settlement with counsel 

for the Secretary, reiterated his claim for remission, and requested 

the "matter be disposed of without requiring my attendance at a 

hearing" the presiding judge carefully reviewed the record and 

suggested that counsel for the Secretary again explain that abatement 

was no justification for dismissing a petition to assess penalties. 

The presiding judge also took note of the fact that the operator 

objected to attending a prehearing settlement conference in Arlington, 

Virginia because of the time and expense involved. Since the presiding 

ll Respondent operates a small slate quarry near the town of 

Hampton, New York which is about 75 miles north of Albany-Troy, 

New York. 

1039 
judge had attempted to give "due regard for the convenience and 

necessity of the parties" before issuing the notice of prehearing 

conference, the principal focus at; this point was on the operator's 

expressed desire to have the matter resolved without even a prehearing. 

When counsel advised that the operator insisted on total 

remission and when the operator also failed to appear at the prehearing conference, the presiding judge issued a decision and order 

of default assessing penalties in the amount originally proposed, 

namely $170.00. ];,/ 

Thereafter, the Connnission acting on a complaint relayed by a 

congressional committee, directed the default assessment for 

review and invited briefs from the parties. Only the Solicitor 

responded with a brief that failed to set forth the facts revealed 

by the record. For example, the brief failed to note the operator's 

request that his claim for remission be disposed of on the basis of 

his answer and letter of August 8, 19.78 without a hearing. The 

brief did suggest, however, that the matter be remanded to the 

presiding judge for a more detailed explanation of the factors considered in issuing the default assessment. 

Instead, the Commissio~ issued its decision of July 25, 1979 

in which it erroneously assumed the only basis for the default 

assessment was the operator's failure to attend the prehearing 

conference of June 5, 1979. ]/ As I have indicated, and as the 

2/ In view of the operator's claim of a travel imposition and 

the presiding judge's assumption it was made in good faith and not 

for the purpose of harrassment, the order of default was issued in 

the disjunctive. In other words, even if the operator had a valid 

excuse for not wanting to spend $400.00 to argue his remission point 

in Arlington then he had no excuse for refusing to discuss settlement 

of the matter with Mr. Walsh (one of the Secretary's most able and 

competent lawyers) when the operator had admitted the violations 

charged, made no claim the penalties initially proposed were excessive 

and was resting his case solely on a claim of total remission that as 

a matter of law could not be considered. 

]./ The Connnission held that under section 5(a) of the APA, 

5 U.S.C. § 554(b) and its rules of practice, the only factor 

relevant to a determination of the balance of convenience for a 

prehearing site is its distance from the situs of the operator's 

mine. Thus, the Commission held that "additional cost to the government" is not to be considered since considerations of "due process" 

and· "appearances" of overreaching must be avoided at all costs. 

(Footnote 3 continued on page 3) 

1040 
record clearly shows, that was not correct. The operator's failure 

to appear at the prehearing conference was only one of the two 

factors considered. The principal factor was the operator's failure 

(Footnote 3 continued) 

Until the Commission established this policy, the presiding judge 

believed that under the statute and the Commission's rules of practice 

he was required t.o "give due regard to the convenience and necessity 

of the parties" including the government agencies involved and "other 

relevant factors" including the comparative expense to the parties. 

Accordingly, he took official notice of the fact that to transport 

to and maintain the Secretary's counsel and the presiding judge in 

Rutland, Vermont, the hearing site nearest Hampton, New York, and 

return would cost the government agencies involved a minimum $750.00, 

whereas the cost to the operator of sending one representative to 

discuss settlement in Arlington, Virginia would cost a minimum of 

$400.00. The cost to the operator, of course, would actually be 

much less since it would be a business. expense deductible from his 

income tax. Furthermore, in Arlington a Commission hearing room was 

available'whereas in Rutland a hearing room had to be obtained from 

a state agency. Thus, when the presiding judge balanced the costs 

and convenience of the government agencies against that of respondent 

it appeared the balance of convenience favored holding the settlement 

conference in Arlington. 

The only authority cited by the Commission for disregarding 

the plain language of the statute and its own rules was a case 

decided five years before passage of section 5(a) of the APA. 

Furthermore, the case involved the setting of a site for a protracted evidentiary hearing that involved the travel and maintenance 

of several witnesses not a single representative for a one day 

settlement conference. The cases that have interpreted section 5(a) 

since its passage in 1946 have uniformly held that "Due regard for 

the convenience and necessity of the parties cannot be divorced 

from.the convenience of the agency." Burnham Trucking Co, v. 

United States, 216 F. Supp. 561, 564 (D. Mass. 1963) (3 Judge Court); 

Maremont v. F.T.C. 431 F. 2d 124, 129 (7th Cir. 1970). It is 

respectfully suggested that at its earliest opportunity the Commission 

reconsider its sweeping amendment .of section 5(a) of the APA. 

1041 
to advance a defense that required an evidentiary.hearing, his 

admission of the three violations charged, and his failure to show 

or even claim that the penalties proposed were arbitrary or 

excessive, and his failure in the light of this to make a reasonable 

. excuse for his refusal to discuss settlement with counsel for the 

Secretary. Contrary to the Commission's view, the operator was 

not penalized for asserting his. right to contest the violations. 

He did not contest the violations only the Secretary's refusal to 

grant him a total remission, a type of relief not available under 

the Act with or without a hearing. !±./ 

Because of the views expressed by the Commission, after remand 

the matter was set for another prehearing, and, if necessary, 

evidentiary hearing in Rutland, Vermont. Shortly thereafter the 

operator agreed to pay the penalties assessed under the default 

order of June 5 and counsel for the Secretary filed a motion to 

approve settlement. 

Based on my independent evaluation and de novo review, I find 

the penalties proposed, while on the low side, acceptable and in 

accord with the purposes and policy of the Act. 

Accordingly, it is ORDERED that the motion to approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that the 

operator pay the penalty agreed upon, $170.00,·on or before Friday, 

August 24, 1979, and that subject to p ent the captioned petition 

be DISMISSED. 

4/ Oversight committees and the Commission should resist the 

tempt-;-tion to usurp the presiding judge's authority to regulate the 

course of adjudicatory proceedings, especially where they do not 

understand the details of the day-to-day happenings or the parties' 

litigating posture as reflected in the pleadings. See, Appalachian 

Power Co., 35 Ad. L. 2d 574, 578 (FPC 1974). The committees and the 

Commission are entitled to hold the judges accountable but they 

should do so on the basis of an informed understanding and not mere 

surmise. There is as strong a public interest in avoiding harrassment 

of the judges as the parties. Litigation brought merely to harrass 

is a wholly unredeemed burden and an affront to the administrative 

process. 

1042 
Distribution: 

John R. Griffith, Secretary-Treasurer, Cut Slat~, Inc., Depot 

Street, Fair Haven, VT 05743 (Certified Mail) 

Joseph M. Walsh, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

1043 
FEDERAL MINE SAFETY AND HEALTH REVIEW COl\1MISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

CLIMAX MOLYBDENUM COMPANY, 

A Division of AMAX, Inc., 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

OIL, CHEMICAL AUD ATOMIC 

WORKERS' INTERNATIONAL UNION, 

LOCAL 2-24410, 

Respondent 

4 '9?$ 

Applications for Review 

Docket No. DENV 79-102-M 

Citation No. 333646 

Docket No. DENV 79-103-M 

Citation No. 333647 

Docket No. DENV 79-104-M 

Citation No. 333648 

Docket No. DENV 79-105-M 

Citation No. 333649 

Climax Mine 

DECISION 

Appearances: Hugh A. Burns, Esq., and Rosemary M. Collyer, Esq., 

Dawson, Nagel, Sherman & Howard, Denver, Colorado; 

W. Michael Hackett, Esq., Climax Molybdenum Company, 

for Applicant; 

Robert A. Cohen, Esq., and Edward c. Hugler, Esq., 

Office of the Solicitor, u. s. Department of Labor, 

for Respondent MSHA; 

David A. Jones Jr., Earl Dungan and Raphael Moure, Oil 

Chemical and Atomic Workers' International Union, Local 

No. 2-24410, for Respondent Union. 

Before: Administrative Law Judge Michels 

These proceedings are applicat;i.ons ·for review of citations 

brought by Climax Molybdenum Company, Applicant, pursuant to section 

105 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 815. Applicant contested the merits of the citations, each of which 

charge a violation of mandatory standard 30 CFR 57.5-5 in that the 

silica bearing dust level for the surveyed miners allegedly exceeded 

the allowable concentration and it also contested the reasonableness 

of the length of the abatement ti.me fixed in the citations. 

1044 
The matters were first scheduled for hearing for February 27, 

1979, but the hearing date was continued at the request of the parties. After a number of prehearing conferences, some of which were 

-by telephone, these matters finally were set for hearing on July 9, 

1979, in Denver, Colorado. 

On July 2, 1979, Respondent filed a motion to dismiss alleging 

(a) that MSHA determined, upon review of the discovery material, 

that it could not "sustain the particular violations alleged", 

(b) that Climax has indicated it will continue to work on dust control, and (c) that for these reasons MSHA will .vacate the citations. 

In effect Respondent requested dismissal on the ground of mootness. 

Applicant opposed this motion and requested a full hearing. 

The parties were given an appropriate schedule within which to file 

the legal memoranda or positions on the issue of dismissal. A full 

opportunity was granted to the parties including the Local Oil, 

Chemical and Atomic Workers' Union, to discuss their positions 

on this issue at a conference in Denver, Colorado, he.ld July 9, 

1979. 

Thereafter, on July 10, 1979, a ruling was made from the bench 

granting MSHA's motion to dismiss. This decision, with a few grammatical corrections, is set forth below: 

Decision from the Bench 

ADMINISTRATIVE LAW JUDGE MICHELS: The hearing will 

come to order. 

As I stated before we went on the record, this is a .continuation of the prehearing conference that began yesterday, 

at which time the parties presented their positions on the 

motion to dismiss which has been submitted by MSHA. And as 

I announced then, I would attempt to rule on that today. 

So I' 11 proceed to do that. This will be a ruling from the 

bench, and I think it will be self-explanatory. So this is 

the ruling on Respondent's motion to dismiss. 

On July 2, 1979, MSHA moved to dismiss these proceedings on the following grounds: (a) based on its prehearing 

review, Counsel determined that it "cannot sustain the particular violations alleged;" (b) that Climax has shown indications that it will continue to work on the control of the 

dust ~t Climax Mine; and (c) that the. citations are to be 

vacated. And I should note that subsequent filing has indicated that the notices are in fact now vacated. 

Respondent Local No. 2-24410 of the Oil, Chemical and 

Atomic Workers Union has not filed a written response to 

1045 
this motion, but its representatives have stated on the 

record that they concur in the motion to dismiss. And so 

they have been in effect heard on the motion. 

On July 9, 1979, the Applicant herein filed a memorandum in opposition to MSHA's motion to dismiss. It has 

argued (a). that the presiding Judge has jurisdiction under 

the Act to direct the relief which it seeks regarding the 

interpretation and application of the dust control standard; 

(b) the controversy is not rendered moot by MSHA's vacation· 

of the citations; and (c) that the case is not mdot because 

justiciable issues have survived the vacation of the 

citation. 

This issue, that is of the request for dismissal, was 

thoroughly argued, as I previously stated, during the prehearing conference yesterday. The parties are prepared for 

hearing pursuant to my instructions. However, it is my 

view, as I indicated at the conference yesterday, that the 

matter of the vacating of the citations and the request for 

dismissal is an issue which properly should be decided at 

this time before going to hearing. I will, therefore, proceed to make my decision. This is based upon the submissions of the parties, the arguments made on the record, and 

upon a review of the cases which have been submitted and 

submitted with the legal briefs. 

I will enter a formal written order hereafter affirming this decision from the bench. And I would reserve the 

right, however, to make necessary corrections in such 

formal order. · 

Now, at this time I would ask that the parties bear 

with me for a rather lengthy statement that I have in which 

I want to elaborate on the reasons for my decision. And 

that decision is that I will grant the motion to dismiss. 

I have studied the cases cited by the Applicant, and 

I will say quite briefly, because of the shortness of the 

time, that I am not convinced that these establish a clear 

basis for the continuing litigation in these proceedings 

where the charging documents have been vacated by the 

Government. 

The Applicant as I understand it relies in part on the 

rule announced in the Southern Pacific Terminal Company v. 

Interstate Commerce Commission, 219 U.S. 498 (1910), in 

which the Court held to the effect that short term orders 

capable of repetition yet evading review are not dismissible on the grounds of mootness. It is my view that these 

1046 
proceedings do not present an issue as precisely defined 

as it was in the Southern case; and further, that there 

is no evidence these citations are continuing.or repetitive •. 

In Eastern Associated Coal Corporation, also cited by 

the Applicant, the Board permitted review of a vacated 

imminent danger order because there was a major issue left 

unresolved; that is, the continued issuance of such orders 

in circumstances where imminent danger did not exist. The 

operator in such instance, as I view it at least, was 

directly and immediately affected by future orders, because 

they would result in a closure of its mine. 

Now, I recognize that an operator may also be affected 

by a citation, so I don't make a big point of that distinction because the Commission in its Energy Fuels. decision, 

Denver 78-410, May 1, 1979, did point out the effect citations could have and did extend the right to a review of 

citations in appropriate circumstances. However, I believe 

it is clear that an operator nevertheless would not be 

affected so directly. 

Moreover, at least it seems to me, in Eastern the problem was one of a recurring and continuing nature and like 

that in Southern, all the time evading review. It was a 

clear and precise issue under a particular provision of law 

as to which review might otherwise be denied to the 

operator. Such considerations do not in my view exist in 

these proceedings. There is no single issue of a clear and 

precise nature. The issues in fact as phrased by the 

operator are of a wide and varied nature, covering detailed 

questions which may arise in a litigated proceeding. 

There is no evidence that issuance of the citatinns is 

a matter of repetition under circumstances which the 

operator is continually denied a review. It is possible 

that similar issues may arise in a future case or in future 

cases of a related nature. But there is no reason 

to believe on this record that in such a case the operator 

would not receive a full review of the merits. 

Accordingly, I believe that such cases cited by the 

Applicant as supporting its ·request for a full hearing are 

distinguishable and are not sound precedent for the action 

it seeks. The Applicant also relies on a series of cases 

for the asserted proposition that "a case is not rendered 

moot where there is a need for a determination of the 

question involved to serve as a guide to the public agency 

which may" -- parts at this point are omitted -- "act again 

in the same manner .. " There is no showing here of the 

1047 
issuance of citations in prior situations and their vacation which would suggest a continuing practice or the need 

to determine a question for guidance. 

This is not to say that there will be no similar 

citations in the future. But if so, that future occasion 

would be the time to consider the possibility of the need 

for a decision to provide the guidance. Counsel for MSHA 

in his argument has clearly suggested, at least it seems 

to me, that some mistakes have been made. As a result, he 

has in.fonned the Court that procedures have been modified 

and a policy directive is to be issued shortly. Thus, 

there is every reason to believe that the mistakes or 

errors of the past, if any, are not to be repeated. 

Furthermore, these cases, that is the pending cases, 

are not the type in which it can be said with confidence 

that the issues in subsequent cases will be the .same. In 

all probability they ~ill be different. The testing will 

no doubt take place on different miners in different places 

c.nd under different circumstances. While the general considerations may be the same, it seems clear that the facts 

will differ in relevant and important detail. Thus, a decision on the merits in these proceedings would not necessarily be dispositive of charges in other subsequent cases. 

My principal difficulty, however, with the request to 

hold a hearing in spite of the vacation of the citations 

is that such a hearing would probably not accomplish.anything that cannot now be accomplished or decided on the 

record as it stands. The Applicant analogizes this situation to that of a plaintiff-defendant in a civil case under 

the Federal Rules. Applicant has made no suggestion, 

however, that short of a summary judgment a plaintiff in a 

civil suit would gain more than Applicant will receive here; 

namely, a dismissal of the action. 

The question of what is to be gained by a full trial 

is a very real one. As I view this, it is a foregone conclusion that MSHA will not succeed because it has declared 

it cannot prove its case. Thus, any hearing would be 

wholly one-sided in which the Court would receive a more 

detailed showing of the Applicant's position and further 

proof that it is entitled to dismissal. But if it is 

entitled to dismissal [after a hearing] and a decision to 

that effect, it is entitled to that on the record as it now 

exists. There is no need for a trial to prove what is 

already known; that is, that MSHA cannot sustain its burden 

of proof in these cases. 

1048 
I realize that Applicant is seeking something more; 

namely, an affirmative ruling on certain statements which 

it has presented as the ."issues of fact and law." I do not 

propose to give such an affirmative ruling on these issues. 

That would be a far-reaching departure from the relatively 

precise and established issues presented in cases such as 

Southern and the Board's Eastern Associated m~tter. It 

would in my view be tantamount to an advisory opinion on 

matters, some of which are purely procedural issues. These 

should not be decided other than in a strict adversary context in my view. 

Applicant finds fault with MSHA and distinguishes these 

proceedings from Reliable Coal in part because MSHA here is 

making no "concession of error." This is not exactly true. 

MSHA in this conference has in effect, if not explicitly, 

conceded that the citations were erroneously issued. The 

Applicant t however, wants a concession of er_ror ·along the 

precise lines of the issues framed by itself. That is 

unacceptable as I view the matter. 

MSHA disputes the issues as phrased by the Applicant, 

and there is no clear certainty that all of such statement 

of issues would necessarily be the issues in a fully litigated proceeding. 

I believe the Applicant, because of the vacation of 

the citations, has obtained in these cases all the relief 

it can reasonably expect to obtain. It is true, of course, 

that the vacation of the citations unfortunately leaves 

undecided some issues which may we_ll have been decided in a 

litigated case and would then have been available for precedent and guidance. Some of these issues, however, such as 

whether MSHA has the burden of proving dust concentrations 

in excess of the TLV and the feasibility and practicability 

of any dust control measure not in use and whether MSHA has 

the burden of proving any feasibility of any dust control 

measures at the Climax Mine and others, are apparently procedural in nature. 

It would not be appropriate to address these issues 

outside of the contested proceeding. A ruling on such 

issues in the posture of this proceeding would be akin to 

dicta and be of little use in the final resolution in some 

possible future case. 

I cannot conclude this decision without a summary of 

the efforts which led to the present posture of the proceedings. The issues presented originated nearly nine 

months ago. Climax, according to its statement, has undergone great-expense, time, effort, and money in order to 

1049 
properly prepare for an administrative resolution of the 

issues. It alleges that, up until a week ago, MSHA has 

consistently refused to vacate the citations. The Applicant asserts that this action raises a specter that will 

shadow the entire enforcement procedures under the Act 

and that to condone the agency's action is to grant it a 

license to effect its desires over the operator though it 

has no real right to do so. 

I don't view the action of MSHA as being oppressive 

as Appli·cant has claimed. If I did that, some appropriate 

remedy would I think be in order. Nevertheless, the conduct of MSHA as shown on this record cannot be entirely 

condoned. 1/ It seems unusual, to say the least, that MSHA 

could not have determined much earlier in the investigation 

that it had no case. Yet it continued its investigation and 

discovery at what has been a considerable cost to the Applicant in money and time. Moreover, there is at least a suspicion that MSHA is retreating now only to appear another 

day when it has better proof. 

Further, counsel for MSHA concedes that it has been a 

learning experience for MSHA though, of course, this has 

~een in part at the operator's expense. Whether or not 

such tactics are permissible, the end result is to cause the 

operator a considerable amount of hassle and uncertainty. I 

understand, of course, that there are areas of enforcement 

here that are new to MSHA and thus, as was argued, some mis·· 

takes are to be expected. That, of course, is of little 

solace to the operator. 

Counsel for MSHA has argued in effect, at least as I 

understand it, that the operator is not really deserving of 

too much sympathy here, that such actions that have occurred 

·are normal and expected in the course of administrative 

enforcement. I cannot subscribe to that view. The regulations which all mines are subjected to call for considerable 

effort on the part of the operators. And in applying these 

regulations they should be treated as fairly and equitably 

as it is possible to do. 

1/ This reference is not intended to be critical of particular 

counsel. 

Also, no criticism is intended of MSHA's action in bringing these 

proceedings. Clearly, the Secretary must at times proceed even in 

doubtful areas if new technological breakthroughs in safety are to be 

achieved. The question is whether such experimentation should be all at 

the expense of the industry and, in particular, one member of the 

industry. 

1050 
In this instance, a mistake or error apparently was 

made in issuing these citations, and the operator has been 

subjected, at least by its own account, to a great deal of 

expense and effort. It seems to me; at least in certain 

narrowly defined circumstances such as this where the operator has been so improperly 2/ cited and goes to a large 

expense to defend itself, that it is entitled to some kind 

of setoff. This will be in accordance with the Board 

rulings which have permitted setof fs where large expenses 

have resu'ited from mine closures. Applicant here is actually in a better position to claim a setoff since it has 

not been found to be in violation of the Act. 1/ 

l'm, of course, reasonably certain that MSHA will 

resist the implementation of any such setoff on the ground 

that it will interfere with the enforcement of the Act. I 

don't see that enforcement would be affected. It is a 

matter in my mind of a simple equity and fairness. Since 

no penalty is involved in these proceedings, I am in no 

position, of course, to implement any setoff. However, as 

part of this decision, I hereby recommend to the Commission, 

in connection with possible future penalties which may be 

incurred by this company in other cases, that it consider 

in the interest of fairness and in light of the particular 

circumstances of these proceedings a setoff to at least 

in part compensate the operator for its costs in this 

litigation. 

I make this recommendation with the condition that 

within ten days the operator requests such a setoff and 

submit a statement of its direct costs for the record. 

MSHA will have ten days thereafter to comment on this 

statement submitted by the operator if it chooses to do 

so. 

This concludes my decision on the motion to dismiss. 

Accordingly, the motion to dismiss is hereby granted. As 

I view and understand the situation since I have granted 

the motion to dismiss, that would mean that there is 

nothing further to be resolved. And these proceedings are 

dismissed, and there is no further need for action. 

2/ The word 11 improperly11 was used here in the sense of its meaning of 

11'not appropriate" or "incorrect." 

3/ The reference to Board cases was intended only to suggest that the 

concept of a 11 set off 11 has been sanctioned in the field of mine health 

and safety. It is obvious that the Board cases are not exact precedents for the action here recommended, except for the equitable principle involved. North American Coal Company 3 IBMA 93 (1974); 

Zeigier Coal Company 3 IBMA 366 (1974). It can hardly be contended, 

however, tha·t the Commission must always follow· these cases. It 

is clearly free to make its own determination. 

1051 
Subsequent to this decision, the following additional documents 

were received: Applicant's statement of direct costs for set off 

showing costs totalling $190,495.95, and its request that these 

costs be set off against future penalties; the Secretary of Labor's 

memorandum opposing the setoff claim and Applicant's supplement to. 

its statement of costs for setoff. The Applicant's submissions 

have complied with the conditions set forth in the decision for a 

recommendation for a setoff to the Commission. 

The decision from the bench granting the motion to dismiss the 

applications for review is hereby affirmed and these applications for 

review are dismissed. 

Further, the preconditions having been met, I affirm my decision 

to recommend to the Commission, that in connection with possible 

future penalties which may be incurred by Applicant in other cases, 

the Commission consider, in the interest of fairness and in light of 

the particular circumstances of these proceedings, granting the Applicant a setoff to at least in part compensate it for its costs in these 

proceedings. I hereby so recommend. 

Distribution: 

C/'-7~P~ Franklin P. Michels 

Administrative' Law Judge 

Hugh A. Burns & Rosemary M. Collyer, Esqs., 2900 First of Denver 

Plaza, 633 17th St., Denver, CO 80202 (Certified Mail) 

W. Michael Hackett, Esq., Climax Molybdenum Co., Amax, Inc., 

13949 West Colfax Ave., Bldg. No. 1, Golden, CO 80401 

(Certified Mail) 

Edward c. Hugler and Robert Conen, Esqs., MSHA Trials Branch, 

Office of the Solicitor, u. s. Depattment of Labor, 4015 

Wilson Blvd, Arlington, VA 22203 

David A. Jones, Jr., President, Oil, Chemical and Atomic Workers' 

International Union, Local No. 2-24410, P. o. Box 949, 

Leadville, CO 8046i (Certified Mail) 

Edwin Matheson, Chairman, International Brotherhood of Electrical 

Workers, Local Union No. 1823, P. o. Box 102, Minturn, CO 81645 

(Certified Mail) 

1052 
FEDERAL l\~INE SAFETY AN.p HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WIS.SON aou1.EVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OP LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 79-35 

A/O No. 46-01433-03024 

Loveridge Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

The Solicitor has filed a motion to approve a settlement in the 

above-captioned proceeding. 

In his motion, the Solicitor advises the following: 

1. The attorney for the Secretary and the respondent's 

attorney Karl T. Skrypak have discussed the alleged violation 

and the six statutory criteria stated in Section 110 of the 

Federal Mine Safety and Health Act of 1977. 

2. Pursuant to those discussions, an agreed settlement 

has been reached between the parties in the amount of $114.00. 

The original assessment for the alleged violation was $160.00. 

3. A reduction from the original assessment is warranted 

because this violation was committed by an independent contractor, West Virginia Electric Company, performing operations 

at Respondent's mine. This citation was issued when an 

inspector observed an employee of this independent contractor 

not wearing safety shoes. Discussior.s with the Respondent's 

representative indicate that it maintained no direct control 

over the daily operations of this contractor or the conduct 

of its employees. Therefore, a reduction in negligence points 

is warranted, resulting in a reduction of the assessed penalty 

of $160.00 to $114.00. 

This reduction more accurately reflects the circumstances 

surrounding this violation and the application of the six 

statutory penalty assessment criteria thereto and should 

therefore be approved. 

1053 
In Secretary of Labor, Mine Safety and Health Administration v. 

Republic Steel Corporati~n (79-4-4) dated April 11, 1979, the Federal 

Mine Safety and Health Review Connnission held that under the 1969 Act, 

the Secretary of Labor could issue citations against the owner of a 

coal mine for violations connnitted by independent contractors. Under 

the present Act, an operator is specifically defined to include an 

independent contractor as well as the operator. ·However, I believe 

the fact that the independent contractor now is specifically defined 

as an operator does not limit the Secretary's discretion with respect 

to whom to cite. Chief Judge Broderick reached the same conclusion in 

Secretary of Labor, Mine Safety and Health Administration v. Old Ben 

Coal Company (VINC 79-119-P) dated April 27, 1979. Accordingly, the 

citation against the operator here is proper. The Commission also held 

in Republic that where an enforcement action is undertaken against the 

operator, the independent contractor may also be proceeded against in 

a separate or consolidated proceeding. I believe the amount of the 

penalty sought against the operator properly can take into account the 

circumstances of the violation. Chief Judge Broderick also reached 

the same conclusion in the Old Ben case cited above. Accordingly, I 

accept the Solicitor's representations regarding negligence of the 

operator. I would state however, as I have on prior occasions, that 

enforcement of the Act would be better served if the Secretary proceeded 

against both the operator and the independent contractor. 

ORDER 

The operator is ORDERED to pay $114 within 30 days from the date 

of this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

James H. Swain, Esq., Office of the Regional Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

1054 
F~DERAL M5NE SA.FE"fY Af~D iHEtU . ."Y"[i BEVB:W COMMftSSSON 

OFFICE Of ADMINISTRATIVE LAW. JUDGES 

4015 WILSON BOt:LEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Applicant 

v. 

REPUBLIC STEEL CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. PIKE 78-4·10-P 

A.O. No. 15-02117-02036V 

Republic Mine 

DECISION APPROVING SETTLEMENT 

This proceeding involves seven· charges of violations of mandatory safety and health standards initially assessed by MSHA for 

a total of $44,500. 

Or<".er No. 6-0263 alleges one violation of 30 CFR 75.200 (failure to follow approved roof-control plan), initially assessed by MSHA 

for $10,000. The parties have agreed to a reduction of the penalty to 

$3,000. 

Order No. 6-0264 alleges one violation of 30 CFR 75.400 (failure to prevent accumulations of coal dust), initially assessed by MSHA 

for. $7,500. The parties have agreed to a reduction of the penalty to 

$3,000. 

The remaining five orders each allege one violation of 30 CFR 

75.604 (failure to properly splice electr.ical cables). Each alleged 

violation of 30 CFR 75.604 was initially assessed by MSHA for 

$5,500. 

The parties have agreed to a reduction of the assessed penalties 

as follows: For Order No. 6-0265, the assessed penalty is reduced to 

$2,600; for Order No. 6-0267, the assessed penalty is reduced to $2,400; 

for Order No. 6-0268, the assessed penalty is reduced to $2,500; for 

Order No. 6-0269, the assessed penalty is reduced to $2,500; and for 

Order No. 6-0270, the assessed penalty is reduced to $2,500. 

I find the parties' motion for approval of settlement is consistent with the six statutory criteria set forth in section llO(i) of 

the Act and is supported by the record. On the basis thereof, the 

motion for approval of settlement is GRANTED. 

1055 
WHEREFORE IT IS ORDERED that the Respondent shall pay the agreed 

civil penalties ($18,500) within 40 days, and upon such payment, the 

proceeding is DISMISSED 

Distribution: 

John H. O'Donnell, Trial Attorney, Division of Mine Safety and 

Health, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

B. K. Taoras, Attorney for Republic Steel Corporation, Coal 

Mining Division, 604 Fayette Bank Building, Uniontown, PA 15401 

(Certified Mail) 

1056 
FEDERAL MINE SAFETY AND MIEALTH REVIEW COMMISSION 

. ' OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSOH BOULEVARD 

ARLINGTON, VIRGINIA 22203 

AUG 1 7 ~978 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v.. 

AMERICAN COAL COMP~Y, 

Respondent 

Docket No. DENV 79-218-P 

A.C. No. 42-00082-03003 

Beehive Mine 

DECISION 

Appearances: Thomas E. Korson, Esq., James Abrams, Esq., Office 

of the Solicitor, U.S. Department of Labor, for 

·Petitioner; 

Before: 

Kent Winterholler, Esq., Patrick Garver, Esq., 

Parsons, Behle and Latimer, for Respondent. 

Administrative Law Judge~fiichels 

This matter is before me for decision upon the petition of 

the Mine Safety and Health Administration for assessment of civil 

penalty filed against the Respondent, American Coal Company, pursuant 

to. section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 820(a) (the Act). 

A hearing was held in this matter on May 17, 1979, in Price, 

Utah. Petitioner and Respondent appeared through counsel. The 

parties have filed posthearing briefs and proposed findings 

and conclusions. 1/ Such of the proposed findings not adopted 

or specifically rejected herein are rejected as innnaterial or 

not supported by fact. 

1/ Counsel for both parties have npted certain errors in the hearing 

transcript and these have been corrected in the following manner: 

(a) On line 13 of page 3, the words "to eliminate" have been 

stricken and the words "in limine" substituted; 

(b) On l.ine 7 of page 16, the word "Respondent" has been stricken 

and the words "of Respondent" substituted; 

(c) On lines 8 and 9 of page 34, the word "arching" has been 

stricken and the word "arcing" substituted; 

(d) The same correction as (c) has been made on line 12 of 

page 35; 

(e) On line 25 of page 77, the words "finger into the box to energize the terminal is there some" have been stricken and the words 

"finger into the box to the energized terminal is there some" 

substituted; 

( f) On line 19 of page 117, the words "at twenty,;,.eight" have been 

stricken and the words "Between eight" substituted. 

1057 
I. 

Findings and conclusions in this part are applicable to all the 

alleged violations. 

\ 

(a) History of prior violations: The parties stipulated to the 

receipt in evidence of a printout showing prior violations (P-1). It 

was agreed that only the violations issued prior to the citations 

charged in this case would be considered (Tr. 22-23). The beginning 

date of the printout is July 27, 1976, and the ending date is July 27, 

1978. This document shows a significant prior history of violations and 

I so find. 

(b) Appropriateness of the penalty to the size of the operator: 

It was stipulated that the annual tonnage of the Beehive Mine is 

498 ,042 tons. I find it to. be medium to large in size. 

(c) Effect on the operator's ability to continue in business: I 

find that the fines, if any, assesse~ will not affect the operator's 

ability to continue. 

(d) Good faith: I find, with no evidence to the c~ntrary, that 

the operator achieved rapid compliancerin good faith. 

II. 

Findings and conclusions as to each of the separate violations 

charged are set forth below. 

(1) Citation No. 245458, July 11, 1978 

The inspector, Donald B. Hanna, on July 11, 1978, issued a citation to Respondent reading: 

The main mine pump starter box, located in the No. 24 

crosscut, between the intake and the 1st right entries 

was not properly maintained in that about 1-1/2 opening was 

present on the side of the 440 volt energized switch box 

allowing water to enter the box. Also, about 1 inch opening was present in the submersible pump box located about 

20 feet inby the No. 24 crosscut on the intake entry. 

This condition was charged to be a violation of 30 CFR 

75.512. !:_/ Later, on April 30, 1979, the citation was modified "to 

!:_/ This mandatory standard reads in pertinent part: 

"All electric equipment shall be frequently examined, tested, 

and properly maintained by a qualified person to assure safe. operating 

conditions. When a potentially dangerous condition is found on electric equipment, such equipment shall be removed from service until 

such condition is corrected. " 

1058 
show the c9rr.ect section No. 75 .520 . 11 Petitioner filed no motion to 

amend as to this charge and Respondent's motion in limine was granted 

so far as it involved the new charge of a violation of 30 CFR 75.520. 

The case therefor was tried as one charging only a violation of 

30 CFR 75.512 (Tr. 20-21). 

The evidence as to the alleged condition is not in serious dispute. The inspector testified he found "knockout" holes in two 

electrical boxes, and that in one such box, water was running down 

the side and into the disconnect switch (Tr. 32-33; R2, R3). Respondent's witnesses did not disagree with ~he inspector's description. 

The abatement consisted of placing folded tape in the hole and 

applying a clamp (Tr. 77). 

The inspector claimed that the opening.s created a hazard by 

causing corrosion which could result in arcing, burning and a possibility of electrical shock (Tr. 34). The Respondent has generally 

denied the assertions that its electrical boxes were unsafe. Its 

safety director, Dixon Peacock, testified that all electrical parts 

are examined weekly and any violations would be recorded and, by inference, corrected (Tr. 76). 

The regulation involved in th:i_s charge is general in nature. 

It requires in pertinent part that electrical equipment be "properly 

maintained by a qualified person to assure safe.operating conditions." 

Although the regulation does not specify, the inspector asserts that 

proper maintenance includes the closing of holes in weather- or waterresistant boxes.. The holes in this instance were caused by the removal 

o~ the knockouts. Knockouts are indentations in an electrical box 

which can be removed or knocked out for the purpose of inserting a 

cable or metal conduit (Tr. 43). If a cable is removed or if a hole 

once made is not used, an opening will remain in the box. 

The question here is whether proper maintenance requires the 

closing of such openings in electrical boxes. The only evidence 

on the question is the testimony of the inspector and most of this 

is focused on the alleged hazard. The inspector asserted, based on 

his personal experience as an electrician, a weather-resistant box if 

not maintained will allow components to deteriorate causing arcing, 

burning and explosions (Tr. 34). He also contended that proper maintenance requires that one maintain an electrical component as good 

or better than when it was originally manufactured (Tr. 64). Neither 

Mr. Dixon Peacock, safety.director, nor Mr. Stan Jensen, chief electrician for the operator, testified one way or the other whether 

proper maintenance requires the closing of open knockout holes in 

electrical boxes. Mr. Dixon appeared to admit the existence of 

the holes as charged, but asserted in effect that because of their 

location they did not cause a hazard. He further testified that he 

was not aware of any formal regulations nor had he received any 

written direction from MSHA on the proper maintenance of such boxes 

(Tr. 77). Mr. Jensen testified that the breaker arm on the 

1059 
transformer would kick out if there was a short in the box (Tr. 85). 

He also testified that MSHA did not tell him the practice of leaving 

holes in boxes was either acceptable or unacceptable (Tr. 86-87). 

The record contains no testimony or other evidence about the 

general practice in the trade with respect to closing the openings in 

electrical boxes. No witness other than the inspector expressed a 

view on that subject. Because there is no evidence other than the 

inspector's testimony, I accept his statement that proper maintenance 

requires the closing of a hole in an electrical box. As indicated 

above, the evidence on this citation generally concerns whether the 

condition was a hazard or not. That evidence relates to the gravity 

of a violation, if one is found, but it has no particular bearing on 

the fact of the violation. 

I find therefore that the failure to close the openings in the 

electrical boxes was a violation by the operator of 30 CFR 75.512. 

Findings on the specific criter~a of gravity and negligence 

follow: 

Gravity: The inspector did not look into the boxes. He speculated that arcing, fire and shock hazgrds were possible, but he did 

not know about the conditions inside the box. Mr. Peacock, on the 

other hand, testified that weekly examinations ~ere-made and in effect 

that any potential hazard would be found. Mr. Peacock had opened and 

examined the box and had determined that contact with wires through 

the holes would have been very difficult. It appears that the potential hazard in the particular circumstances was relatively remote 

especially since the transformer would kick out and deenergize the box 

instantaneously in the case of any short (Tr. 85). In the circumstances, I find that the violation was of moderate seriousness. 

Negligence: The inspector testified that he had informed the 

operator's safety director on prior occasions to close these openings 

(Tr. 45, 55). He admitted, however, that this was probably a subject 

raised only"generally in talking about boxes and maintenance problems. 

Mr. Peacock could not remember whether he had received any such warning. There is no clear evidence that electricians would routinely 

close such holes as a matter of normal maintenance. Under the circumstances, I find a small degree of ordinary negligence. 

Assessment: Based on all the evidence, I find that the proper 

penalty should be $25 for each improperly maintained electrical box 

or $50 total for this violation. 

(2) Citation No. 246521, July 11, 1978 

This citation reads: "Air currents used to ventilate the air 

compressor installed at 29 crosscut between 1st right and return 

1060 
entries were ··not coursed directly into the return." A violation 

of 30 CFR 75.1103 was charged. Prior to the hearing, on May 1, 1979, 

Petitioner moved to amend the petition to charge a violation of section 75 .1105. This motion was granted by order of the court of May 11, 

1979, subject, however, to reconsideration at the hearing upon a 

proper showing by the Respondent. In the meantime, Respondent filed a 

motion in limine requesting the Judge to enter an order prohibiting 

Petitioner from introducing any evidence that seeks to establish a violation of any standard other than that cited in Citation No. 246521, 

that is, 30 CFR 75.1103 and to specifically prohibit evidence of an 

alleged violation of 30 CFR 75.1105. 

At the hearing, arguments were made on the motion in limine· and 

this motion was denied on the record ·(Tr, 9.5-96) . Evidence was 

received on behalf of the Petitioner on the merits of the charge. 

Respondent presented.no evidence at the hearing. The Respondent 

requested at the hearing that the Judge reconsider the issue of the 

amendment of the pleading and has filed a posthearing brief addressed 

to the subject. 

In this brief, Respondent argues first that the Interim Rules do 

not allow the Judg~ to amend the citation inunediately prior to the 

hearing. Although the rules do not specifically provide for the amendment of citations, it is clear that this authority is inferred in several of the specific powers granted to the Judge. 

Secondly, Respondent argues that the amendment should not be 

allowed because it deprives it of proper notice of the violation 

charged. Respondent was advised of the intended change· in the mandatory standard to be charged by Petitioner's response to a prehearing 

order filed May 1, 1979, approximately -2 weeks before the hearing. 

After allowing time for an answer, the motion was granted on May 11, 

1979. Respondent thus had considerable- advance notice that the hearing would proceed on the basis of a charge of 30 CFR 75.1105 rather 

than 30 CFR 75.1103. 

Respondent has made no argument either at the hearing or in its 

posthearing brief that an alleged lack of notice deprived it of the 

opportunity to properly prepare for the hearing. There is no suggestion that it was unable to obtain witnesses or other evidence to 

defend itself against the charge of 30 CFR 75.1105. -The original citation, apparently as an inadvertent error, listed 75.1103, whereas it 

is clear that the condition as narrated in the citation has nothing to 

do with that particular regulation. It is equally evident that the 

proper citation based on the narrated condition is 75.1105. 

The case law does not support Respondent's contention that it 

failed to receive proper notice in the circumstances of this case. 

In one of its early decisions, the Board of Mine Operations Appeals 

held that it found no violation of due process where conditions or 

1061 
practices described in the order of withdrawal do not specify a particular section of the act or mandatory standard violated. Eastern 

Associated Coal Corporation, 1 IBMA 233, 235 (1972). See also, Old 

Ben Coal Company 4 IBMA, 198, 206-210 (1975). In National~lty-arld 

Construction Co. Inc. v. OSHRC, 489 F~2d 1257, 1264 (D.C. Cir. 1973), 

the court held "So long as fair notice is afforded, an issue litigated 

at an administrative hearing may be decided by the hearing agency even 

though the formal pleadings did not squarely raise the issue. This 

follows from the familiar rule that administrative pleadings are very 

liberally construed and very easily amended. 11 (Footnotes omitted.) In 

L. G. Balfour Co. v. FTC, 442 F.2d 1 (7th Cir. 1971), the court held 

"[t]he complaint is adequate if the one proceeded against be reasonably 

appraised of the issues in controversy, and any such notice is adequate in the absence of a showing that a party was misled." In that 

case, the court held there was no claim that th~ petitioners wer~ 

misled by the complaint nor evidence that_ th.ey could have been 

so misled. 

In summary, by apparent inadvertence, the Respondent was not 

immediately advised when receiving the citation of the correct 

number of the mandatory standard it W?S charged with violating, 

although the condition alleged is fully described in the narrative. 

portion of the citation. The correct number was supplied several 

weeks before the trial and in time sufficient for the Respondent 

to prepare its defe.nse. No representations have been made that 

such length of time was inadequate or that the R~spondent was ever 

misled or deceived as to the exact nature or the charge. The charge, 

it is noted, was sufficiently clear t& permit an abatement of the 

condition. Nor has Respondent made any showing of prejudi~e. 

In the circumstances upon reconsideration, I affirm.my decision 

- to permit amendment of the citation. 

The evidence.presented on this citation, as· previously noted, 

consists entirely of the testimony of the inspector, Donald B .. Hanna. 

He testified that there was a violation because the air current 

in the mine intake air courses is directed to the working SP.ctions 

inside the mine, that it was passing over the energized cpmpressor and not into the return and finally that this intake air is the 

main escapeway for the mine (Tr. 97). No evidence was submitted by 

the Respondent. Since this condition is prohibited by the regulation 

cited, it is found that Respondent was in violation of 30 CFR 75.1105. 

The violation was serious because in case of a fire, the smoke 

gases, carbon monoxide, carbon dioxide and so on, passing over the 

energized compressor station could pass down the main escapeway into 

the intake air course and affect the workmen in the mine (Tr. 97). 

This was ordinary negligence because it should have been known to 

the operator that only one opening had been provided above this stopping where the compressor was permanently installed (Tr. 97). 

1062 
Considering all the statutory criteria, I her~by assess the 

operator a· penalty of $150 for this violation. 

(3) Citation No. 246523, July 12, 1978 

In this citation, the inspector charged a violation of mandatory 

standard 30 CFR 75 .326(a) for the following condition: "The air currents in the operating belt entry, 9th east working section, were used 

to ventilate the active working places." 

The Beehive Mine having been opened in 1950, the portion of 

30 CFR 75.326 relevant to the condition is as follows: 

Whenever an authorized representative of the Secretary 

finds, in the case of any kind of· coal mine opened on or 

prior to March 30, 1970, which ha.s been developed with more 

than two entries, that the conditions in the entries, other 

than the belt haulage entries, are such as to permit adequateiy the coursing of intake or return air through such 

entries, (a) the belt haulage entries shall not be used to 

ventilate, unless such entries are necessary to ventilate, 

active working places * * * 

The Respondent argues (1) that th~ citation issued is fatally 

incomplete and therefore must be vacated, (2) that the standard 

allegedly violated is not applicable to the Beehive.Mine, and 

(3) assuming, arguendo, the applicability of 30 CFR 75.326, no violation has been proven. The first argument is rejected. 

Respondent's second argument specifically is that a finding by 

the Secretary must be made relative to the coursing of the air and 

the lack of a need for air off the belt haulage entry and presented 

in writing to the operator before a citation may issue under the 

the second sentence in 75.326. Other administrative law judges have 

held to the affect that a finding by an inspector as to the adequacy 

of entries is a prerequisite for the issuance of a citation for an 

alleged violation. Knisley Coal Company, Docket Nos. PITT 76-66-P, 

etc. (October 22, 1974), by Judge Moore and Rushton Mining Company, 

Docket Nos. PITT 73-271-P, etc. (January 31, 1975), by Judge Cook. 

It is unnecessary to decide this issue in this case because of my 

finding below that no showing has been made sufficient to establish 

the existence of the alleged condition. 

As noted above, Respondent argues that, assuming, arguendo, the 

applicability of 30 CFR 75.326, no violation has been proven. It 

contends first that there has been no showing of the use of air off 

the belt haulageway and that even if there was some movement of air 

off the belt it would exit through doors prior to reaching the 

working face. 

1063 
MSHA's evidence on this point consists solely of the testimony 

of the inspector and his written statement which is identified as P-4. 

This evidence is insufficient in my view to establish that air was 

moving off the belt haulageway, at least in any quantity .which would 

be deemed significant. The inspector could not get a valid reading of 

the movement of the air on his anemometer (Tr. 99-100). While he made 

a smoke tube test after the check curtain was installed, he conceded 

that there was no way that one could get an accurate measurement of 

how much air was being allowed into the section (Tr. 101). When the 

inspector was asked if he could feel the air moving at any time while 

investigating the condition he answered: 

Just by sense. The dust in ~he air and by, it was 

so slight it would be hard to say by your actual feeling. 

~ou would probably imagine it bec.ause of the. way the dust 

was traveling. It is possible if we detect the movement 

of the air all the time if there is high enough velocity 

you can certainly detect it (Tr. 101). 

In my view, this is insufficient evidence to prove that the belt 

haulage entry was being used to ventilate. Even if the showing were 

sufficient to establish a slight movement of air, there is no further 

proof that it in fact reached the worKing face. Other evidence suggests that any small amount of air from the belt haulage entry, and it 

appears there will be always some, would be sucked into the return 

before reaching the working face (Tr. 116-117, 122, 128). Furthermore, the evidence establishes that the working section was adequately 

ventilated with 34,000 cubic feet per minute. 

This case is similar to that decided by Administrative Law Judge 

Sweeney in D.R. Campbell & Son, Inc., BARB 72-156-P (November 27, 

1973), in which he also held that the evidence was not enough to 

to prove a "use" of belt entry air within the context of section 

75.326. 

Accordingly, Citation No. 246523 is vacated and the petition 

dismissed as to this charge for failure of proof. 

(4) ·Citation No. 246524, July 12, 1978 

In this citation, the inspector charged a violation of mandatory 

standard 30 CFR 75.1704 and he described the condition or practice as 

follows: "Only one escapeway, (return air course) was properly marked 

from the 9th east working section out to the main drift, a distance 

of about 1,000 feet." 

Standard 75.1704 provides for appropriate escapeways and that 

these "shall be maintained in safe condition and properly marked." 

1064 
Respondent argues as to this citation that insufficient notice 

of the violation has been given to the company as to the degree and 

character of the marking required and by the lack of specificity in 

the citation. Specifically, it contends that the standard is void for 

vagueness and that the notice and the citation are fatally incomplete. 

Respondent also takes the position that the evidence shows the intake 

escapeway in the 9th East section was properly marked. 

I reject the contention that insufficient notice has been given to 

the operator. Respondent's argument on vaguene~s is that there are no 

standards as to what constitutes proper·marking and that because of the 

allegedly vague nature of the requirement:, MSHA should have promulgated 

regulations or other written directions. I do not believe that the 

regulation is of such a nature that it would necessarily require additional guidelines. The escapeways clearly have to be marked. The only 

issue that might arise is whether a particular marking is proper. In 

some instances that may present a difficult question but, in this 

instance, the inspector testified that there were no markings whatsoever. 

Respondent's .second argument as to sufficiency of notice is that 

the citation was fatally incomplete because it allegedly does not 

describe at all the condition in question or even the escapeway in 

question. It is true that the citation on its face does not exactly 

describe the condition or the place but, in light of the abatement and 

also the testimony received at the hearing, it is apparent that the 

Respondent knew exactly the condition or practice with which it was 

charged. 

On the issue of whether the intake escapeway in the 9th East 

section was in fact marked, there is contradictory evidence. The 

inspector accepted, for the purposes of abatement, the placement of 

reflector tape along the escapeway and so at least for the purposes 

of this proceeding such a marking will be considered a proper making. 

The evidence received on the question of the presence of markings 

consists mainly of the testimony of the inspector, Mr. Hanna, and 

Resp0ndent's witnesses, Dixon Peacock, safety director for American 

Coal and Stan Jensen, maintenance superintendent for the company. The 

inspector testified that the intake escapeway in the ·9th East section 

was not properly marked because there was no indication that it was an 

escapew2y and it was not marked as an escapeway (Tr. 136-137). 

Mr. Peacock testified that there is a sign at the junction of the 

9th East section which is a reflective and states, "intake escapeway, 

this way out." He also claimed that the escapeway was marked because, 

inby to the section, every permanent stopping is identified by large 

numbers (Tr. 149). Mr. Peacock finally asserted that there was reflective tape and an identifying tag starting at the junction and proceeding inby to the section (Tr. 150). These were located, it was claimed, 

at stations where rock dust samples were taken (Tr. 158). 

1065 
The inspector, in rebuttal, claimed that he had not taken rock 

dust samples in the 9th East section, but rather, had taken them in 

the 8th West section (Tr. 172). He testified that he observed no 

reflector tape of any kind on the 9th East section (Tr. 173). He also 

asserted that he was not aware of an escapeway sign at the junction 

and that he saw it for the first time the next day after the citation 

when Mr. Peacock pointed it out to him. He testified that it was 

pointing up into the section instead of out (Tr. 173-174). 

It is no~ ciear that the sign is particularly relevant to the 

charge contained in the citation. The inspector appeared to be concerned with the lack of markings along the esca.peway and marking.s such 

as a reflector tape would have been sa~isfactory to him. He accepted 

the placement of reflector tape as ari abatement measure and no mention 

was made of a sign at the junction at the time of abatement. The 

inspector did not testify whether the reflective tape placed at the 

rock dust stations would be sufficient markings. He testified only to 

the effect that there were no reflective tape markings. Finally, 

Mr. Peacock in further testimony referred to his notes which he 

asserted indicated the location of dust samples and that these show 

dust samples taken specifically in the 9th East section. 

The testimony of the inspector ana Mr. Peacock is virtually 

irreconciliable on the question that whether or not·the dust sample 

reflector tapes were present. Mr. Hanna testified that he did not 

observe any tapes, but it may be that he was not particularly looking 

for such dust sampling tapes and thus may have failed to notice them. 

On the other hand, Mr. Peacock appeared to have contemporary information in the form of his own notes that samples were taken specifically 

in the intake entry in the 9th East section which would mean tapes 

were present. With the issue as close as this and in the circumstances mentioned, I will accept Mr. Peacock's testimony. This is not 

intended to reflect in any way upon the veracity of Mr. Hanna. 

Accordingly, I find that the charge of a violation of 30 CFR 

75.1704 has not been proved. Citation No. 246524 is vacated and the 

petition dismissed as to this charge. 

ORDER 

It is ORDERED that Respondent, American Coal Company, pay the penalties assessed herein in the sum of $200 within 30 days of the date 

of service upon it of this decision. 

or~~~~ Franklin P. Michels 

Administrative Law Judge 

1066 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSUON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON. BOULEVARD 

ARLINGTON.VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SWOPE COAL COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. HOPE 78-644-P 

A/O No. 46-05186-02009 V 

Docket No. HOPE 78-645-P 

A/O No. 46-05186-02010 V 

Docket No. HOPE 78-646-P 

A/O No. 46-05186-02011 V 

Docket No. HOPE 78-664-P 

A/O No. 46-05186-02012 S 

No. 1 Mine 

DECISION 

Appearances: David Barbour, Esq., Office of the Solicitor, MSHA, 

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

Petitioner; 

Charles Tutwiler, Esq., Welch, West Virginia, for 

Respondent. 

Before: Forrest E. Stewart, Administrative Law Judge 

FACTUAL AND PROCEDURAL BACKGROUND 

The above-captioned cases are civil penalty proceedings brought 

pursuant to section 109 of the Federal Coal Mine Health and Safety 

Act of 1969 (hereinafter, the Act), 30 u.s.c. § 819 (1970). 

On July'28, 1978, MSHA filed three petitions to assess civil penalties for violations of mandatory safety standards. The fourth petition herein was filed on July 31, 1978. A total of seven violations 

of mandatory standards was alleged. Respondent filed answers to all 

four petitions on January 2, 1979. 

The hearing in these matters was held on March 7, 1979, ln 

Charleston, West Virginia. The Petitioner called five witnesses and 

1067 
introduced 21 exhibits. The Respondent called one witness and introduced four exhibits. A posthearing brief was submitted by Petitionei; 

on May 25, 1979. Respondent submitted its brief on June 20, 1979. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

LIABILITY OF SWOPE COAL COMPANY 

The primary issues are whether Respondent violated the mandatory 

safety standards alleged and the penalty that should be assessed for 

violations under the criteria set forth in section·109(a)(l) of the 

Act. ]:_/ In addition, Respondent asserts that: 

[I]t is not liable for the alleged violations in that 

it was not the "operator" of the No. 1 Mine at the time the 

assessments were made or at any other time, and has never 

been such operator, and as such does not come within the 

statutory definition of an operator as set out in Chapter 

22, Title 30, § 802(d), which is as follows: 

'Operator' means any owner, lessee, or other person 

who operates, controls or supervises a coal mine; 

By a lease dated May 1, 1952, Bankers Pocahontas Coal Company,. 

leased 300 acres of coal land, more or less, tow. B. Swope. 

w. B. Swope, in turn, on June 1, 1976, by written lease, subleased 

a portion thereof, being the No. 1 Mine, to Day Camp Coal Company. 

Petitioner argues that Swope Coal Company was the operator because 

it continued to exercise control over the mine and was named as the 

operator in the legal identity report for the No. 1 Mine signed by 

w. B. Swope after the sublease to Day Camp Coal Company. 

It is undisputed that after the clearing away and removal of 

coal and topsoil in May 1976, the miners at the No. 1 Mine were not 

1/ Section 109(a)(l) of the Act provides: 

"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 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." 

1068 
in the employ of Swope Coal Company. 2/ Nevertheless, the record 

establishes that Swope Coal Company remained active in some aspects 

of the mining operation, including assistance to Day Camp Coal Company 

in the marketing of coal and procuretknt of equipment. 

Prior to the date of the lease, Respondent had obtained a permit 

from the State of West Virginia to face\ up and remove coal from in 

front of the highwall. This permit, West Virginia Permit No. D9553, 

was issued in November or December 1975,\in the name of Swope Coal 

Company, No. 1 Mine. In January 1976, w. B. Swope~ Inc., received a 

charter from the State of West Virginia an<:l on May 16, 1976, Respondent applied to MESA for a mine identificatipn number which was 

received .on June 15, 1976, being No. 46-05186. 

Section 107(d) of the Act requires that \~ach operator of a coal 

mine shall file with the Secretary the identi~y of the person who 

controls or operates the mine. 3/ Any revisio~s in such.name or 

addresses are required to be promptly filed with the Secretary. 

2/ Respondent has used different names. Counsel for Respondent 

stated that "there is no such entity as Swope Coal Company." W. B. 

Swope, Inc., was chartered by the State of West Virginia; in January 

1976. However, the State mining permit and the MSHA identificatio~ 

number were issued in the Swope Company name and remained in that 

name at all times pertinent to these proceedings. Inspector James 

Bowman testified that "Swope Coal Company" was the only name he had 

ever heard used in reference to the mine. When inspector Herbert M. 

McKinney was at the mine in May 1977, he observed a sign on the main 

office building which read "Swope Coal Company No. 1 Mine Office." 

Although the charter name of the corporation was w. B. Swope, Inc., 

the corporation was known by and did business under the name of Swope 

Coal Company. 

3/ 30 CFR 82.11 states in pertinent part: 

- ':(a) Not later than 30 days after the effective date of this part, 

the operator of a coal mine shall, in writing, notify the Coal Mine 

Health and Safety District Manager*** of the'legal identity of the 

operator * * *·" 

30 CFR 82.12 states in pertinent part: 

"Within 30 days after the occurrence of any change in the information required by section 82 .11, the operator of a coal mine shall, in 

writing, notify * * * the District Manager * * * of such change." 

30 CFR 82.13 sets forth the results of a failure to notify the 

District Manager: 

"Failure of the operator to notify the Bureau of Mines [subsequents, MSHA] in writing of the legal identity of the operator or any 

changes thereof within the time required under the Act will be considered to be a violation of section 107(d) of the Act and shall be 

subject to penalties as provided in section 109 of the Act." 

1069 
On June 14, 1976, Swope Coal Company, through its president, 

w. B. Swope, filed a legal identity report with MESA. 4/ This 

report, which was signed by w. B. Swope, named Swope Coal Company 

as the operator of the No. 1 Mine. It named W. B. Swope as president 

of Swope Coal Company and as agent for service of process. Significantly, it was filed with MESA 2 weeks after the effective date of 

the contract between Day Camp Coal Company and Swope Coal Company. 

This report remained in effect and unchanged through December 5, 1977. 

Each of the inspectors relied upon it when citing Swope Coal Company 

as operator. 

Mr. Swope testified that he sent a letter to Mr. Krese, MESA's 

district manager, on July 15, 1976. The body of this letter reads 

as follows: "I wish to advise you that W. B. Swope Coal Co. has 

leased the Swope #1 Mine situated, Little Day Camp near Premier, to 

Day Camp Coal Company and they have been advised to contact your 

office for transfer of the ID number." 

Mr. Swope received no answer to this letter and there is no indication that it was received by MESA. Moreover, the letter fails to 

indicate whether Respondent retained partial or total control over .the 

mine and, consequently, whether it remained as an operator. 

30 CFR 82.20 specifies how legal identity and changes thereof 

are to be filed: "Each operator of a coal mine shall file notification of the legal identity and every change thereof with the appropriate * * * District Manager by properly completing, mailing or otherwise delivering Form 6-357 'Legal Identity Report.'" 

In the preamble to the regulations concerning legal identity 

reports published in the Federal Register, the Assistant Secretary 

of the Interior noted that the information required under Part 82 

was "to be used daily by the enforcement personnel" and that the 

iaformation required would "enable the Secretary to properly carry 

out his enforcement functions in the administration of the Act." F .R. 

Vol. 37, No. 238, December 9, 1972, pp. 26308-26309. The regulations 

became effective March 15, 1973, and were in force at the time the 

alleged violations occurred. Swope gave MSHA every outward indication it was the operator by filing a legal identity report as required 

under 30 CFR 82.11 after the Day Camp lease went into effect. If 

Respondent later had second thoughts and believed that Day Camp was 

the operator, it failed to follow the procedure set forth in section 82.20 for advising MSHA of the change. Its letter to District· 

Manager Krese of July 16, 1976, did not meet the requirements of 

4/ The functions of the Mining Enforcement and Safety Administration 

(MESA) have been transferred to the Mine Safety and Health Administration (MSHA) pursuant to the provisions of the Act and these names were 

used interchangeably in the record. 

1070 
Section 82.20. Any letter stating that a lease has. been entered into 

does not properly advise MSHA of anything substantive concern,ing the 

identity of an operator of a mine since it is possible for total or 

partial control of the mine to remain with the lessor and consequently 

for the lessor to remain the operator. Thus, Swope itself indicated 

to MSHA that it was the operator and continued to be so up to and 

through the period of the alleged violations. 

The first change in the legal identity report was effected after 

the occurrence of the four violations at issue herein. On December 5, 

1977, a revised report signed by "Lonnie Wood * * * Mine Foreman" was 

filed in MSHA's Pineville, West Virginia, office. Swope Coal Company 

was listed as operator, and w. B. Swope with the title of president, 

remained as agent for service of process. The only change from the 

earlier report was the listing of three different corporate officers. 

The identity report was revised again on November 29, 1978. 

Swope Coal Company was again listed as operator. The repc>rt, signed 

by "Sammy R. Bell * * * Gen. Manager" listed a different agent for 

service of process and three new corporate officers. 

Two letters which were introduced at the hearing provided additional evidence that the mine was operated under the name "Swope Coal 

Company." These letters dated June 7, 1979, were addressed to Mr. Krese 

under a Swope Coal Company letterhead. As noted above, the effective 

date of the lease between Swope Coal Company and Day Camp was June 1, 

1976. The first letter was filed with MESA purportedly in compliance 

with sectfon 107(d) of the Act. The letter was 1signed by Harold Burks 

as superintendent of the No. 1 Mine for Swope Coal Company. In the 

body of the letter, he referred to himself and to Henry Honosky "as 

the operating officials of Mine No. 1, Swope Coal Company." The 

second letter was written under a Swope Coal Company letterhead and 

was signed by w. B. Swope as operator of the Swope Coal Company No. 1 

Mine. In the-body of the letter, he referred to Mr. Henry Honosky as 

a "Partner." 

Swope Coal Company represented itself as the operator of the 

No. 1 Mine to MESA and mining operations were carried out under the 

Swope Coal Company name. MSHA, for its part, relied upon these representations. Given this reliance, Respondent should not be allowed 

now to deny its status as an operator of the No. 1 Mine in the absence 

of clear evidence to the contrary. 

In addition to holding itself out as operator, Swope Coal Company 

exercised enough control over the No. 1 Mine to be characterized as an 

"operator" within the meaning of the Act. The term "operator" is 

defined in section 3(d) of the Act to mean "any owner, lessee, or 

other person who operates, controls, or supervises a coal or other 

mine * * *·" The concept of "control" must be construed broadly in 

order to best effectuate the purposes of the Act. A person may be 

1071 
considered an operator even though it does not supervise miners or 

direct the day-to-day operations of a coal mine. 

Swope Coal Company, through its agent and president,·W. B. Swope, 

entered into a contract with Day Camp Coal Company. In return for the 

payment of royalties, 5/ Day Camp was granted mining rights to the No. 1 

Mine. Under the terms-of the contract, Respondent retained substantial 

control over the No. 1 Mine. 

Respondent retained the rights to enter the mine at all times to 

inspect any part thereof to ascertain the condition of the mine, the 

methods practiced, the amount of coal removed, or for any other lawful 

purpose. Day Camp was required by the terms of the contract to employ 

only the best and most improved methods of mining so as to maximize 

the amount of coal recovered. Day Camp could not remove pillars without Respondent's consent. Respondent's consent was also required 

before Day Camp could assign or sublet its interest in the mine. 

Finally, Respondent had the right to cancel the contract immediately 

if Day Camp violated any of the contract's clauses. 

Swope's relationship with Day Camp Coal Company was not limited 

to that of lessor-lessee. Mr. Swope testified that he helped Day Camp 

Coal Company to market the coal it mined. He was also instrumental in 

providing some of the mining equipment used by Day Camp. Mr. Swope 

purchased the equipment and then immediately sold it to Day Camp. Day 

Camp purchased the equipment from Swope with money borrowed from a 

local bank. Mr. Swope endorsed the note in order to induce the bank 

to make the loan to Day Camp. After Day Camp folded, 6/ the machinery 

was repurchased by the bank at public auction. Mr. Swope then purchased the equipment from the bank. 

Throughout this entire period of time, the State identification 

number, as well as the "Certificate for Approval of Mine Openings (for 

use of underground mines)," remained in the Swope Coal Company name. 

Day Camp Coal Company did not have a State operating certificate in 

its own name. Swope Coal Company was also responsible for State bonding and land restoration requirements. 

Inspector Bowman testified that he observed Mr~ Swope at the mine 

on two separate occasions--October 6 and 27, 1977. Mr. Swope testified that he went to the mine on October 27 because he was asked to 

help resolve the problems which had caused the mine to shut down. His 

presense at the mine on these occasions and his expressed purpose in 

5/ Under the terms of the lease, Swope received a royalty of 

To percent of the gross sales price of the coal produced from the 

mine. 

2_/ After Day Camp Coal Company became defunct, Respondent leased the 

mine property to Abco Mining Development Company. 

1072 
being there further supports the contention that Swope Coal Company 

exercised control over the No. 1 Mine. 

Day Camp as lessee, and its miners, as employees, were at the 

No. 1 Mine to perform work which promoted the direct financial interests of Swope. Swope should not be allowed through its sublease 

arrangement to relieve itseslf from all responsibility for the miners 

who labored, in part, on its behalf. Such a release from responsibility would not promote health and safety of those miners or of 

others who now find themselves in a similar situation. 7/ Swope's 

apparent argument that actual supervision of miners or day-to-day 

direction of operations is a prerequisite to being an "operator" 

under the Coal Act is undermined by the recent case of Republic 

Steel Corporation, No. 79-4-4 (April 11, 1979), where the Commission found that a mine owner can be held responsible for violations 

of the 1969 Act created by its independent contractors even though 

none of the owner's employees were exposed to the violative conditions and it could not have .prevented the conditions. 

In addition to the legal issues, there are practical reasons why 

Responde:•t should be responsible for the safety of the miners in the 

No. 1 Mine. Republic also said that "A mine owner cannot be allowed 

to exonerate itself from its statutory responsibility for the safety 

and health of miners merely by establishing a private contractual 

relationship in which miners are not its employees and the ability to 

control the safety of its workplace is restricted." While there is no 

direct evidence to indicate that in this case the lease and the use 

of different names was for the purpose of escaping responsibility, the 

possibility exists. There is even a greater possibility of the use of 

such a private contractual relationship to escape responsibility in 

cases such as this where the lessee merely hires miners and mines coal 

than in cases such as ~epublic where the independent contractor is 

hired to sink shafts, erect tipples, and perform tasks beyond the 

capabilities of the operator. 

Swope Coal Company was the legal, as well as generally recognized 

operator, of the No. 1 Mine. The Respondent held itself out as the 

operator of the No. 1 Mine, did business as Swope Coal Company, and 

exercised sufficient control to be considered an operator. As such, 

Swope Coal Company may be assessed civil penalties under section 109 

of the Act. 

!_/ MSHA argued that the concept of control need not require a finding 

of a singly responsible party, but that the exercise of any measure of 

control may make a party liable as.an operator regardless of actual 

direction of day-to-day operations at the mine. Thus, in this 

instance, it was argued that Swope and Day Camp share joint and 

several liability and that, Day Camp being defunct, it was perfectly 

proper for MSHA to proceed solely against Swope. 

1073 
VIOLATIONS AND STATUTORY CRITERIA 

Each of the alleged violations contained herein occurred at the 

Swope Coal Company No. 1 Mine, located in Premier, West Virginia. 

At the time the alleged violations occurred, approximately 10 miners 

were employed at the. No. 1 Mine and it produced coal at the rate of 

100 tons per day. The parties stipulated that each of the violations 

herein was abated in good faith and that there was no applicable history of prior paid violations. The record contains no indication 

that the assessment of civil penalties in these proceedings will 

adversely affect the ability of the Respondent to cemain in business. 

Day Camp Coal Company failed to exercise reasonable care to prevent or to correct the conditions or practices which caused each of 

the violations herein, and they were known or should have been known 

to exist. Although Swope Coal Company exercised sufficient control to 

bring it within the definition of "operator" under the Act, the 

record does not establish that it was concerned with the day-to-day 

mining operations to the extent that the negligence of Day Camp Coal 

company or its personnel was imputed to Respondent. 

Docket No. HOPE 78-644-P 

Two separate violations of mandatory safety standards were 

alleged in Docket No. HOPE i8-644-P. They were observed by Federal 

coal mine inspector James Bowman in the course of a regular inspection of Respondent's No. 1 Mine on October 6, 1977. In both 

instances, the inspector issued a 104(c)(l) order of withdrawal. 

Inspector Bowman issued Order No. 1 JFB after he observed three 

concurrent conditions or practices which he believed to be in violation of 30 CFR 75.200. First, the approved roof control plan was 

not being followed in the main 001 section in that miners had proc~eded inby permanent roof supports. The .roof bolting machine had 

been placed up against the face, 10 feet beyond support. There were 

no jacks on the roof bolting machine and no temporary supports had 

been set in the area. 

Section 75.200 requires in pertinent part that "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." The roof control plan in 

effect that the No. 1 Mine permitted only those persons engaged in 

installing temporary supports to proceed beyond the last permanent 

roof support until such temporary supports were installed. In this 

instance, miners had been proceeding beyond permanent supports to make 

chalk marks on the roof for placement of roof bolts. This practice 

presented a clear violation of section 75.200. 

1074 
The inspector also observed that cleanup had occurred under 

unsupported roof in the face area of the No. 4 entry and in the last 

open crosscut. The roof control plan requires that roof be supported 

during or immediately upon completion of the loading cycle. The 

cleanup under unsupported roof was in violation of section 75.200. 

Finally, the inspector observed that mining continued in the 

No. 4 entry within 100 feet of an outcrop without the additional support called for in the roof contro 1 plan. An "outcrop" is that area 

where a seam of coal comes out to the surface. The roof control. 

plan required that roof bolts shall not be used as. the sole means of 

roof support when underground workings approach and when mining is 

being done within 150 feet of an outcropping. Supplemental supports 

were to c.onsist of at least one row of posts limiting the roadway 

width to 16 feet. The failure to provide additional supports in this 

area as required by the roof control plan was a violation of section 

75.200. 

The section foreman was on the section constantly throughout the 

shift and should have known that miners were proceeding beyond permanent sup~X>rts for other than proper purposes. The failure to install 

temporary supports at the conclusion of the mining cycle and to provide additional supports in the area near the outcrop were visually 

obvious. The inspector was told by Bill Burks, mine superintendent, 

that they did not have sufficient supplies on hand at the mine to 

permit either the temporary or permanent posting as required. 

These conditions could have resulted in a fatality. It was probable that an accident would have occurred because of the conditions. 

The first condition threatened those miners inby the permanent supports. The latter two conditions endangered eight men, the entire 

crew on the section. 

Inspector Bowman issued Ord~r of Withdrawal No. 2 JFB after 

observing accumulations of coal in violation of 30 CFR 75.400. He 

observed these accumulations extending a distance of approximately 

250 feet in four entries and part of the last open crosscut. Along 

the ribs, the coal ranged in depth from 6 to 20 inches. In the roadways the coal had accumulated from 1/4 to 4 inches. The coal was 

comprised mostly of coal dust. It was wet in the middle of the roadways, dry inby the last open crosscut and extremely dry along the 

ribs. The inspector approximated the extent of the accumulations 

using the mine map. He measured depth with a ruler. 

The inspector believed that the area had never been cleaned after 

mining. The accumulations were too extensive to be the result of 

normal spillage during mining. No effort was made to clean up the 

coal when it was discovered by the inspector or while he was there. 

He estimated that the accumulations had been present for more than a 

month. The condition was visually obvious and existed for an extended 

period of time, yet management failed to take corrective action. 

1075 
This was a serious violation. It was probable that art accident 

would occur because of the accumulations. There were ignition sources 

in the area of the accumulations. An energized cable with six poorlymade temporary splices was lying in loose coal in the outby areas. 

Battery-operated equipment presented additional ignition sources. The 

violation endangered all these working in the mine and particularly 

those working in the face areas. If a fire or explosion w~·re to 

occur, the probable reselt would have been serious injury or a 

fatality. 

Docket No. HOPE 78-645-P 

Two separate violations of mandatory safety standards were alleged 

in Docke·t No. HOPE 78-645-P. The first of these was observed by 

Federal coal mine inspector Leighton Farley on May 24, 1977, in the 

course of an accident investigation. The inspector issued 104(c)(l) 

Notice of Violation No. 1 LCF, citing 30 CFR 75.1704. MSHA had 

received a complaint on May 23, 1977, which alleged that five men had 

been trapped in the mine because au escapeway was blocked. 

The inspector's examination of the escapeway involved revealed 

that timbers had been broken, the top had deteriorated, and part of 

the roof had fallen. Mining had continued for one and a half shifts 

without two separate escapeways. The inspector discussed the condition with a mine foreman, Lacey Justice, who stated that he had discovered the rock fall during a preshift examination on May 17 or 18. 

He and Bill Burks, the manager of the mine, decided to continue mining in the area for 2 days and only thereafter to move the section 

back 200 feet where they could maintain two separate escapeways. 

This failure to maintain a second escapeway was in violation of 

section 75.1704 which requires that two separate and distinct 

travelable passageways be maintained in a safe condition to ensure 

passage at all times of any persons. The decision to operate without 

two separate escapeway~ was a conscious one on the part of mine 

management. 

Because the second escapeway was blocked, five men were forced 

to use their self-rescuing devices and travel through smoke to reach 

the face. It is probable that the lack of a second escapeway could 

result in serious injury or a fatality. 

The second alleged violation included under this docket number 

was observed by Inspector Bowman in the course of the regular inspection conducted on October 6, 1977. The inspector found six poorlymade temporary splices in a trailing cable which was conducting electricity to a loading machine operating in the main 001 section. He 

issued 104(c)(l) Notice of Violation No. 9 JFB, citing 30 CFR 75.603~ 

This section reads in pertinent part as follows: 

One temporary splice may be made in any trailing cable. 

Such temporary splice may be used only for the next 24-hour 

1076 
period * * *· Temporary splices in trailing cables shall be 

made in a workman-like manner and shall be mechanically 

strong and well insulated. Trailing cables or hand cables 

which have exposed wires or which have splices that heat or 

spark under load shall not be used. 

It is clear that the condition in question was in violatton of 

section 75.603. There were a total of six temporary splices in the 

cable. In addition, the outer jacket of some splices were worn and 

unraveled to the extent that bare wires were exposed. Some splices 

were also wet and filled with mud. The wires were· joined with square 

knots. The condition and wear on ~he splices indicated that they had 

existed for at least several days. 

The number of splices and the unworkmanlike manner in which they 

were made were visually obvious. The condition existed for at least 

several days. The section foreman and Curtis Kirk, the chief -~lectrician, were in the section throughout their shift. Mr. Kirk had 

replaced a permanent splice on the cable on the day before the inspector arrived. 

This was a hazardous condition. is probable that the condition would cause an accident to occur. 1·/hen the inspector first found 

the cable, it was energized. There was no short-circuit protection 

and the cable wires were exposed. The inspector testified that he 

knew of instances in which this type of cable burned from end to end. 

Because the cable was lying in dry coal dust in places and was an 

ignitions ource, it presented a fire or explosion hazard. The cable 

also presented a shock hazard because in some places it was lying in 

water. The roadway outby the last open crosscut was wet. At one time 

or another, it was likely that the splice would be in direct contact 

with this water. Frequent contact-with the cable was necessary in 

this area in order to allow passage of vehicles. An individual might 

al3o suffer an electrical shock if he stood. in water nearby. Every 

miner on the section was endangered by these hazards. If any of these 

accidents were to occur, the probable result would be serious injury 

or fatality. 

Docket No. HOPE 78-646-P 

The two violations included in this docket number were observed 

by Federal coal mine inspectors on Octo her 27, 1977, in the course of 

a regular inspection. 

Inspector Bowman issued 104(c)(2) Order of Withdrawal No. 1 JFB 

after he observed that the Respondent had mined within 30 feet of 

abandoned areas without first drilling test holes. He cited 30 CFR 

75.1701 which, in pertinent part, requires the following: 

Whenever any working place approaches within 30 feet 

of abandoned areas in the mine as shown by surveys made and 

1077 
certified by a registered engineer or surveyor, or within 

200 feet of any other abandoned areas of the mine which 

cannot be inspected and which may contain dangerous accumulations of water or gas, or within 200 feet of any workings 

or adjacent mine, a borehole or boreholes shall be drilled 

a distance. of at leat 20 feet in advance of the working 

face of such working place and shall be continuously main~ 

tained to a distance of at least 10 feet in advance of the 

Before entering the mine, the inspector had examined an up-todate mine map which indicated that mining was being done within 

30 feet of an abandoned area. The abandoned area was comprised on 

one side of old works and on the other of mined-out areas. Neither 

area could be inspected because the old works had been sealed off 

and the roof in_the mined-out area was falling in. The section foreman, Lacey Justice, admitted to the inspector that test bore holes 

had not been drilled. The operator did not have the equipment at 

the mine to drill as required. When using conventional equipment andtaking a 10-foot cut, a test hole must be drilled 10 feet beyond the 

cut for a total of 20 feet. The Respondent had on hand a single 

auger which could be used to drill up to 10 feet only. 

The requirement to drill bore holes was set out in the ventilation plan for .the No. 1 Mine. The operator was aware of the close 

proximity of abandoned areas. When questioned by the inspector, 

Mr. Justice stated that the holes had not been drilled because they 

did not have the the necessary drill bits or augers. 

This was a hazardous condition. The danger presented was the 

inundation of the area with water or gas. It was possible that 

water had accumulated in the abandoned areas against the coal seam 

which they were mining. Methane or black damp, oxygen-deficient 

air, might also have accumulated there. The probable result of 

inundation would be serious injury or fatality. 

Inspector George Smith issued 104(c)(2) Order of Withdrawal No. 1 

GLS, (October 27, 1977), citing 30 CFR 77 .S02, after observing conditions which led him to believe that the required examination of electrical equipment was being carried out either inadequately or not at 

all. Section 7S.S02 provides the following: 

Electric equipment shall be frequently examined, 

tested, and properly maintained by a qualified person to 

assure safe operating cond,i tins.. 1i."hen a potentially 

dangerous condition is found on ele.ctric equipment, such 

equipment shall be removed from secyice until such condition is corrected. A record of such examina,tions shall 

be kept. 

The inspector observed violations of sections 77 .SOS, 77 .S06, 

77 .SOl, 77 .S07, and 77 .S21, all of which relate to surface electrical 

1078 
equipment. The number of these violations indicated that the examination of electrical equipment was not being carried out •. The inspector was also unable to find any record of electrical examinations. 

Curtis Kirk, Respondent's chief electrician, admitted that he had not 

been making or recording examinations. 

Mine management should have known of the requirement to raake and 

record examinations, yet it failed to do so. Given the number of· vio""' 

lations present, it is probable that the failure to make and record 

examinations would cause an accident. Unless an examination of electrical equipment is carried out, the miner has no way of knowing 

whether a hazardous condition exists or not. 

Docket No. HOPE 78-~64-P 

A single violation is alleged under this docket number. Inspector .Herbert M. McKinney issued Order of Withdrawal No. 1 CDH-HM on· 

May 23, 1977, citing 30 CFR 75.201. Section 75.201 reads as follows: 

"The method of mining followed in any coal mine shall not expose the 

miner to unusual dangers from roof falls caused by excessive widths 

of rooms and entries or faulty pillar recovery methods." 

The inspector issued this order in the course of an accident 

investigation. Two miners had been injured by a roof fall while they 

were spot-bolting in the area of pillar Nos. 1 and 2 in the Day Camp 

Branch Portal. The method of pillar recovery being used posed a hazard to the miners working there in a number of respects. The block 

of coal in question had been partially split. Five places had been 

started off this split without setting the necessary turnposts and 

breaker posts. A six-way intersection was thereby created. The 

roof was supported with roof bolts and very few posts. In addition, 

the roadway exceeded 20 feet, the maximum width approved by MSHA. 

In places, it was as wide as 24 feet. These practices were clearly 

in violation of section 75.201. 

Mine management should have known that the method which was 

used to remove the pillar was hazardous. The inspector was of the 

opinion that management was attempting to mine as much coal as possible without going to the expense of setting additional supports. 

The method of extraction used created a hazardous condition and 

resulted in serious injury to a miner. That miner suffered a br6ken 

back. 

ASSESSMENTS 

In consideration of the findings of fact and conclusions of law 

in this decision based on stipulations and evidence of record, the 

following assessments are appropriate under the criteria of section 

109(a) of the Act. 

1079 
Docket No. HOPE 78-644-P 

Order of Withdrawal No. 1 JFB (October 6, 1977) 

Order of Withdrawal No. 2 JFB (October 6, 1977) 

Docket No. HOPE 78-645-P 

Notice of Violation No. 1 LCF (May 24, 1977) 

Notice of Violation No. 9 JFB (October 6' 1977) 

Docket No. HOPE 78-646-P 

Order of Withdrawal No. 1 JFB (October 27, 1977) 

Order of Withdrawal No. 1 GLS (October 27, 1977) 

Docket No. HOPE 78-664~P 

·Order of Withdrawal No. 1 CDH-HM (May 23, 1977) 

Penalties 

$ 750 

$ 750 

$ 375 

$ 350 

$1,250 

$1,250 

$1,500 

Proposed findings of fact and conclusions of law inconsistent 

with this decision are rejected. 

ORDER 

The Respondent is ORDERED to pay the amount of $6,225 within 

30 days of thds decision. 

Issued: 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

David Barbour, Esq., Leo McGinn, Esq., Office of the Solicitor, 

MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, 

~rlington, VA 22203 

Charles A. Tutwiler, Esq., P.O. Box 739, Welch, WV 24801 

(Certified Mail) 

1080 
flEDERAL MINE SAfrETV AND H!EAl"'fti REVREW COMMBSSBON 

OFFICE OF ADMlllilSYRAnVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. DENV 79-257-PM 

A.C. No. 39-00509-05002 

v. 

Virginia Mine 

PACER CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISION 

Robert S. Bass, Esq., Office of th~ Solicitor, U.S. 

Department of Labor, for Petitioner; · 

Robert L. Cullum, President and General Manager, and 

Mike Treloar, Safety Director for Pacer Corporation, 

for Respondent. · 

Administrative Law Judge Michels 

This matter is before me for hearing and decision on the petition 

for assessment of civil penalty filed by Petitioner MSHA on January 25, 

1979. The Respondent, Pacer Corporation, answered the petition on 

February 2, 1979, and entered in effect a general denial. A hearing 

was held in Rapid City, South Dakota, on June 5, 1979, and thereafter 

the parties filed briefs and proposed findings.·!/ 

The only significant issue in this proceeding is whether a miner, 

Nerl Krueger, a rock sorter, was exposed to silica dust in excess of 

that permitted under the standard 30 CFR 55.5-l(a). 2/ MSHA contends 

that the threshold limit value for this miner under the regulation 

is 1.105 mg/m3 (milligrams per, cubic meter), and that such employee 

was ~xposed to a concentration of 1.564 mg/m3 when sampled on 

April 20, 1978. 

1/ The proposed findings not adopted or specifically rejected are 

hereby rejected, as iminaterial or not supported by fact. 

!:,/ The mandatory standard 55.5-l(a) reads in pertinent part as follows: 

"(a) Except as provided in paragraph (b), the exposure to airborne contaminants shall not· exceed, on the basis of a time weighted 

average, the threshold limit values adopted by the American Conference 

of Governmental Industrial Hygienists, as set forth and explained in 

the 1973 edition of the Conference's publication, entitled "TLV's 

Threshold Limit Values for Chemical Substances in Workroom Air Adopted 

by ACGIH for 1973," pages 1 through 54, which are hereby incorporated 

by reference and made a part hereof." 

1081 
The Respondent has no disagreement with the mathematical calculations made by MSHA's laboratory technician (Tr. 73), but it does in 

effect argue that there was an error in the sampling p.rocedure because 

it claims that the 3- to 14-percent variance in the percent of free 

silica shown by the evidence is entirely unlikely. 

The charge here is focused on a condition which existed in a relatively small shed or room with dimensions of approximately 12 by 16 feet. 

On April 20, 1978, five miners were sampled and four of these worked 

inside the shed. One was designated den leader. Mr. Krueger was a 

rock sorter and the others were designated as pickers. The occupation 

of_the fifth man apparently working outside the shed was that of loader 

and truck operator (R-1). 

The record is not completely satisfactory as to the precise location of the four men who worked inside the sorting room, nor does it 

disclose whether or not they may have exchanged places. All that is 

known from the record is that the four men were working as sorters 

or pickers in the shed separating feldspar from the rock (Tr. 29-30). 

The record further shows that a belt went completely through the room 

and it would appear to be a reasonable inference that the men worked 

across from ea~h other on either side of the belt: 3/ Of the men in 

the sorting room none were overexposed except Mr. Krueger (R-1, R-4). 

The record gives us some details about the sorting room, but not 

all aspects of it are fully described. Mr. Treloar stated that it 

had one door, partial openings at each end through which the 

conveyor belt passed and windows on either side which apparently were 

boarded over (Tr. 69). The size of the room was given as approximately 12 by 16 feet. The witnesses disagreed as to the placement of 

a ventilation fan. Mr. Westphal, the inspector, asserted that 

Mr. Krueger, the exposed miner, was in the northwest corner of the 

shed and that there was a fan drawing air up by that location (Tr. 16). 

Mr. Treloar, on the other hand, testified that the fan was in the 

center (Tr. 73). !±/ 

The evidence presented by MSHA shows the weight of the dust 

obtained in the samples as well as a percentage of the contaminant 

silica. The TLV or threshold limit value which establishes the maximum 

exposure is obtained by a formula contained in the document titled, 

3/ In its posthearing brief, Respondent contends that the men were 

only a few feet from one another and were working at the same task 

only an arm's length apart. 

4/ It is difficult to say who was right with respect to the fan. In 

Its posthearing brief, in a statement which is not evidence, Respondent 

asserts that there are in fact two exhaust fans in the shed, one at 

each end of the building over the belt and shrouded to the belt. 

1082 
"TLV' s Threshold Limit Values for Chemical Substances in Workroom Air 

Adopted by ACGIH for 1973. 11 The initials stand for the "American 

Conference of Governmental and Industrial Hygienists. 11 The docuinent 

is incorporated by reference into the regulation. 

The sampling processes are fully covered in the record from 

page 37 forward. ·The filters are first dessicated and the weight 

recorded. The inspector takes these and places filters which apparently are in cassettes into dust-pumps. The dust-pumps have previously 

been calibrated. The pumps are placed on the men for approximately 

8 hours. They are checked during the 8-hour period. The measurements 

are all recorded (P-1, P-3). After use, the cassettes are returned to 

the laboratory where they are reweighed and a record is made of the 

dust weight (P-4). 

After the weighing of the filters, they are sent via U.S. mail to 

the Denver Technical Center where they are analyzed for silica. The 

dust sample form (Tr. P-4) is partly filled out at the regional MSHA 

office and follows the samples to Denver. The laboratory in Denver 

fills in the amount of free silica detected by the laboratory tests. 

In the case of Mr. Krueger, the di;st weight was found to be 1.177 milligrams and the free silica detected was 90 micrograms. 

Upon obtaining the results from the samples, the laboratory technician at MSHA's regional office calculates the amount of the TLV or 

threshold limit value. In Mr. Krueger's case, it was 1.105. The perc.entage of quartz or free silica was found _to be 7 .047 percent. The 

technician first finds the TWA or time weighted average which in the 

case of Mr. Krueger was 1.564 milligrams per cubic meter. The amount 

of the TLV is determined pursuant to the formula found in the "TLV 

Book" (P-6). In Mr. Krueger's case, as noted, he was exposed to 

1.564 milligrams per cubic meter, whereas the threshold limit value 

was 1.105. He was, in other words, .459 milligrams over the threshold 

limit according to the test, which is a significant amoun~ (Tr. 61). 

The evidence produced by MSHA shows that of the five miners 

sampled, only one, Mr. Krueger, was overexposed on the basis of the 

threshold.limit value found. Respondent has made no showing that an 

error was made at any particular stage of the sampling procedure. It 

claims only in a general way that mistakes are often made. Mr. Treloar 

suggested the possibility that a. pump could be turned upside down, but 

there was no evidence to suggest that this happened (Tr. 65). In its 

brief, Respondent claims that only a minute sample is taken, but there 

has been no showing that such a small sample would necessarily be 

invalid. 

Nevertheless, Respondent takes the position that a variance of 

from 3-to 14-percent free silica is virtually impossible. 

1083 
The net result is that MSHA has presented evidence showing that 

in a relatively confined Space, one miner out of four was overexposed 

to silica dust. The logic of this result is troubling. It is possible perhaps that air currents for some reason unknown carried more 

dust toward and into the filtering pump of the one miner, Mr. Krueger, 

than into the pumps of the others. That seemed to be MSHA's explanation for the variation since it presented evidence about the placement of the fan. · It is true that the sampling shows that Mr. Krueger 

received 'more dust then all the others (Exh. R-1). 

It is possible perhaps to accept the fact that one miner received 

more dust than three others even though in a restricted space, because 

of the vagrancy of air currents. But, it is harder to rationalize on 

this record the further fact of_the wide variances in silicia received 

of the five sampled. Only three were relatively close in terms of the 

percent of contaminant received. The percentages for these three were 

7.047, 8.974 and 7.246. The other two miners received widely varying 

amounts of silica, of 3.825 and 14.572 percent. If the silica is 

fairly constant in the rock feldspar being processed as Mr. Treloar 

testified, it is reasonable to question why the amount should vary so 

widely in the dust in the atmosphere. Possibly there is a good explanation for this but the record does not reveal it. Mr. Benson, MSHA's 

laboratory technician, testified that the results were not so far out 

of line as to suspect them of being invalid and that "[t]hese are 

pretty much in line with what we've been running at Pacer" (Tr. 54). 

Since Mr. Benson was not specific, it is unknown whether he was talking about the free silica content, the sample dust weight, or both. 

In another context, he testified that variances from 3.8 to 14.7 percent of silica did not cause him to question the analysis because he 

never knew where the men were working (Tr. 60). He was not asked, 

however, for his opinion based on the fact that four of the men were 

all working in the same 12 by 16 room, and he did not testify that 

such variances may be expected in these circumstances. 

The inspector at the time of the inspection had not formed an 

opinion as to why only one employee was overexposed "because I didn't 

realize that I would have any over, or if there was, I could have 

supposed that all of them would have been over" (Tr. 16). [Emphasis 

supplied.] He later went on to express his opinion as formed after 

the results were received from Denver and this was that a fan drew the 

air right up by the affected miner. This opinion is at least questionable in light of other evidence about the fan's location, but in any 

event, his opinion would explain only the increase in sample weight it 

does not explain the percentage variation of free silica among the 

five miners sampled. 

No witness directly addressed the question of the variance in the 

free silica, except Respondent's witness, Mr. Treloar, Pacer's safety 

director. He testified that he runs silica analyses in Respondent's 

1084 
chemical laboratory in the ore mine, and that one would not expe~t to 

find more then one-hundredth of a percent of silica (Tr. 64). On the 

other hand, he did not run a test for free silica which apparently 

requires more sophisticated testing equipment. He claimed, however, 

that he estimated the free silica to be high (Tr. 70). In expressing 

his opinion that it would not be possible to have the variances 

shown on Exhibit P-4, Mr. Treloar stated: 

Okay. My analysis of feldspar chemical. I base my opinion 

on this, on my chemical analysis of feldspar. It just does 

not vary that much. There is, what, almost an eight percent 

variance there, and even from different ore bodies its 

almost impossible. I've never run into it even in different ore bodies throughout the Hills, that it will have that 

great of variance. 

(Tr. 71). He also testified that there should not be a difference in 

concentrations between the material itself and the dust that is airborne (Tr. 73). 

On the state of this record, I cannot conclude that MSHA has met 

its burden of proving a violation by the preponderance of the evidence. 

The fact of the wide variations in the percent of free silica in the 

samples has not been explained. On the basis of the limited evidence 

on the subject, it is at least as likely that the sample results demonstrate the inaccuracy of the methods as it is that they show that one 

miner was overexposed. When the evidence contains such an uncertainty, 

it is my conclusion that MSHA has not sustained its burden. On this 

record, I am not questioning MSHA's sampling procedures in general. 

All that this decision resolves is that the evidence in this proceeding 

is inadequate to support a finding that one of the five sampled miners 

was overexposed. Accordingly, 

It is ORDERED that Citation No. 328213, issued May 15, 1978, be 

VACATED and this proceeding be DISMISSED. 

Distribution: 

c~J?<J~ Franklin P. Michels 

Administrative Law Judge 

Robert S. Bass, Esq., Office of the Solicitor, U.S. Department of 

Labor, 911 Walnut Street, Room 2106, Kansas City, MO 64106 

(Certified Mail) 

Robert L. Cullum, President & General Manager, and Mike Treloar, 

Safety Director, Pacer Corporation, 41 South Third, Custer, SD 

57730 (Certified Mail) 

1085 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

.OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

RANDY INMAN AND KENNY HINKLE, Discrimination Complaint 

Complainants 

v. Docket No. ViNC 79-184 

MID-OHIO MINING COMPANY, Redfield No. 2 Strip Mine 

Respondent 

DECISION 

Appearances: William Safranek, Esquire, McConnelsville, Ohio, for 

the complainants; 

Robert H. Albert, Esquire, Columbus, Ohio, for the 

respondent; 

Thomas P. Piliero, Trial Attorney, Office of the 

Solicitor, U.S. Department of Labor, Arlington, 

Virginia, amicus curiae. 

Before: Judge Koutras 

Statement of the Proceeding 

This matter concerns a discrimination complaint filed by the complainants against the respondent pursuant to section 105(c)(3) of the 

Federal Mine Safety and health Act of 1977, 30 U.S.C. § 801 et~· 

The complaint was filed with the Commission on February 12, 1979, 

and the respondent filed a timely answer denying any discrimination 

against the complainants. After a period of discovery in which interrogatories were served on and answered by the respondent, the matter 

was heard in Columbus, Ohio, on May 1, 1979, and the parties appeared 

by and through counsel and participated fully in the hearing. Posthearing proposed findings, conclusions, and supporting briefs were 

filed by the parties and the arguments presented therein have been 

duly.considered by me in the course of this decision. 

The thrust of the complaint is the assertion by .the complainants that they were laid off from their jobs with the respondent on 

November 25, 1978, because of a complaint made to State mine inspectors concerning unsafe equipment. A previous complaint filed by the 

complainants with the Labor Department resulted in a finding by that 

Department that the complainants were not discriminated against and 

their complaint was dismissed. 

1086 
Issue Presented 

The principal issue presented in this proceeding is whether the 

termination of Mr. Inman and Mr. Hinkle from their employment wa~, in 

fact, prompted by their reporting certain unsafe conditions at the 

mine to a State mine inspector. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 301 et !5:.S.· 

2. Sections lOS(c)(l), (2) and (3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3), which 

provide: 

(1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the 

statutory rights of a miner, representative of miners or 

applicant for employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at a coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant 

for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners 

or applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or 

has testified to or is about to testify in any such proceeding, or because of the exercise of such miner, representative of miners or applicant for employment on behalf 

of himself or others of any statutory right afforded by 

this Act. 

(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, 

interfered with, or otherwise discriminated against by any 

person in violation of this subsection may, within 60 days 

after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation 

to be made as he deems appropriate. Such investigation 

shall commence within 15 days of the Secrectary's receipt 

1087 
of the complaint, and if the Secretary finds that such complaint was not frivolously brought, the Commission, on an 

expedited basis upon application of the Secretary, shall 

order the immediate reinstatement of the miner pending 

final order on the complaint. If upon such investigation, 

the Secretary determines that the provisions of this subsection have been violated, he shall immediately file a 

complaint with the Commission, with service upon the 

alleged violator and the miner, applicant for employment, 

or representative of miners alleging such discrimination 

or interference and propose an order gran~ing appropriate 

relief. The Commission shall afford an opportunity for a 

hearing (in accordance with section 554 of title 5, United 

States Code, but without regard to subsection (a)(3) of such 

section) and thereafter shall issue an order, based upon 

findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or directing other appropriate 

relief. Such order shall become final 30 days after its 

issuance. The Commission shall have authority in such proceedings to require a person committing a violation of this 

subsection to take such affirmative action to abate the vinlation as the Commission deems appropriate, including, but 

not limited to, the rehiring or reinstatement of the miner 

to his former position with back pay and interest. The 

complaining miner, applicant, or representative of miners 

may present additional evidence on his own behalf during 

any hearing held pursuant to this paragraph. 

(3) Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in writing, 

the miner, applicant for employment, or representative of 

miners of his determination whether a violation has occurred. 

If the Secretary, ·upon investigation, determines that the 

provisions of this subsection have not been violated, the 

complainant shall have the right, within 30 days of notice 

of the Secretary's determination, to file an action in his 

own behalf before the Commission, charging discrimination or 

interference in violation of paragraph ( 1). The Commission 

shall afford an opportunity for a hearing (in accordance 

with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section), and thereafter shall issue an order based upon findings of fact, 

dismissing or sustaining the complainant's charges and, if 

the charges are sustained, granting such relief as it deems 

appropriate, including, but not limited to, an order requiring the rehiring or reinstatement of the miner to his former 

position with back pay and interest or such remedy as may 

·be appropriate. Such order shall become final 30 days after 

its issuance. Whenever an order is issued sustaining the 

complainant's charges under this subsection, a sum equal to 

1088 
the aggregate amount of all costs and expenses (including 

attorney's fees) as determined by the Commission to have 

been reasonably incurred by the miner, applicant for emp-loyment or representative of the miners for, or in connection 

with, the institution and prosecution of such proceedings 

shall be assessed against the person cornmitting such violation. Proceedings under this section shall be expedited by 

the Secretary and the Cornmission. Any order issued by the 

Commission under this paragraph shall be subject to judicial 

review in accordance with section 106. Violations by any 

person of paragraph (1) shall be subject to the provisions 

of sections 108 and llO(a). 

Testimony and Evidence Adduced by the Parties 

Complainants 

Ronald K. Leigh, State of Ohio mining inspector, testified he 

was familiar with the Redfield No. 2 Mine operated by the respondent 

and that he has conducted inspections at that mine, and did so on 

November 24, 1978. The mine is a nonunion mine and employed approximately 10 people during that time. On November 24, one of his fellow 

State inspectors, a Mr. Jackson, came to his home and advised him that 

he had received complaints about equipment with. no brakes being operated at the mine. He and Mr. Jackson went to the mine and met the 

mine foreman, Donald Vernon, who introduced himself and advised them 

that he had shut the pans down because they had no brakes. Mr. Vernon 

admitted that the pans were operated with no brakes because it was 

difficult to obtain parts. Mr. Vernon assured him that the machinery 

would be repaired and he (Leigh) put a danger sign on the machinery 

and instructed Mr. Vernon not. to operate it until the brakes were 

repaired. During the course of the inspection, Mr. Leigh found some 

other violations, a dozer with a blown fuse, a loader with a defective 

windshield wiper, no first-aid equipment on the property, and a fuel 

truck with no brakes, defective turn signals, and a defect:i.ve exhaus.t 

system (Tr. 9-19). 

Mr. Leigh stated that after finding the violations, he discussed 

the matter with Mr. Vernon, and Mr. Vernon indicated he was having 

problems with the equipment and admitted that some of the pans had 

run together and one turned over. Prior to this time, Mr. Leigh had 

received no reports of such incidents at the mine. Mr. Leigh stated 

he "let it slip" to Mr. Vernon that he had learned about the pans, 

but did not mention any names. Mr. Vernon produced copies of equipment worksheets required to be filled out on the equipment when it is 

checked, and he mentioned that one of his employees was doing his job 

because he had noted some equipment defects on the worksheets. 

Mr. Vernon also asked about Mr. Jackson and i~dicated that he knew 

his father. The equipment that was tagged out was subsequently 

repaired and put back in operation in a matter of days (Tr. 19-26). 

1089 
On cross-examination, Mr. Leigh testified that when he went to 

the mine on November 24, he did not know who had informed Mr. Jackson 

about the safety violations at the mine. He did not give Mr. Vernon 

the names of Mr. Inman or Mr. Hinkle as the parties who had informed 

State inspectors about the violations, and he would never tell a mine 

owner or foreman who had informed, and that is his practice. He could 

recall nothing in his conversation with Mr. Vernon that would lead 

Mr. Vernon to know who had informed, except for the conversation with 

Mr. Jackson that Mr. Hinkle and Mr. Inman lived in the area near 

Mr. Jackson. Mr. Leigh did not know Mr. Inman or Mr. Hinkle, nor did 

he know where any of the mine employees lived (Tr. 26-28). 

The usual practice when the equipment is down, is to have mine 

employees help repair it, but he did not know the mechanical abilities 

of Mr. Inman or Mr. Hinkle (Tr. 29-31). Mr. Vernon did remark that 

"Randy" was the only person marking the equipment sheets as indicating 

that something had been wrong with the equipment (Tr. 33). 

In response to bench questions, Mr. Leigh described a 11 pan" as a 

scraper used to take off topsoil (Tr. 34), and that during his prior 

inspection some 7 months earlier, he found no major violations or 

equii;.aent defects (Tr. 36). Neither Mr. Hinkle nor Mr. Inman made 

any specific complaints to him, and Mr. Jackson was the person who 

notified him, and he (Leigh) did not know Mr. Inman or Mr. Hinkle 

prior to that time (Tr. 37-38). 

Richard Jackson, State mining inspector, testified he was 

acquainted with Mr. Hinkle and Mr. Inman and indicated that they live 

approximately a mile and a half from him. He testified that Mr. Inman 

reported mine safety violations to him at a local school carnival on 

approximately November 10, 1978. Mr. Inman told him that the pans 

were running unsafe, running into each other, and that one had turned 

over, and he asked him if there were anything he could do about it. 

Mr. Jackson advised him that he would report it to the inspector who 

had jurisdiction in the mine district and that he did so by telling 

Mr. Leigh about it. Upon inspection at the mine on November 24, they 

found the pans operating without brakes, a defective exhaust system 

on a truck, and the fact that no first-aid equipment was available 

(Tr •. 40-45, 57). 

Mr. Jackson discussed the violations with Mr. Vernon and he produced the equipment worksheets. One particular individual who had 

filled out the sheets had noted items that needed to be fixed, while 

the other sheets simply noted that the equipment was 11 0.K." This 

individual was Mr. Inman and he pointed it out to Mr. Vernon and he 

knew who he was talking about because he looked at Mr. Inman's worksheets. Mr. Vernon then asked him about his father and asked whether 

he lived near him and he indicated that he did. Mr. Leigh "let it 

slip" that they had known about the equipment defects (Tr. 45-48). 

1090 
On cross-examination, Mr. Jackson testified that Mr. Inman specifically mentioned the pans and the fact that the equipment was running into each other. The complaints were not in writing and he did 

not indicate to Mr. Vernon or to the respondent company as to who filed 

the complaint, nor did he make any specific statements to Mr. Vernon 

which would indicate to him who filed the complaint, and Mr. Vernon 

did not ask (Tr .. 49-53). At the time of the complaint on November 10, 

Mr. Hinkle was present but merely asked him whether Mr. Inman had 

had spoken to him (TR. 57). 

In response to bench questions, Mr. Jackson stated that he said 

nothing to Mr. Vernon which would lead him to oelieve that Mr. Inman 

or Mr. Hinkle had filed any safety complaints. He could not recall 

the specific periods of time covered by the equipment worksheets 

which ·he reviewed, nor could he recall the specific equipment which 

was covered. He had no way of knowing whether the equipment marked 

"O.K." was, in fact, in good condition, and it was possible that it 

was. When he handed Mr. Vernon the worksheets filled out by 

Mr. Inman, Mr. Vernon remarked that "Randy does a good job," but he 

could conclude nothing from that remark, nor could he conclude that 

Mr. Vernon suspected him as being the person who had complained (Tr. 

62-69). 

Richard E. Cooper testified that he was formerly employed by 

the respondent as a mechanic from May to December of 1978 and quit 

because of a disagreement. He was aware of defective brakes on the 

scrapers and since they had so much work, as long as the equipment 

would run, it would be operated in that condition. Mr. Vernon 

instructed him to operate the equipment by "backing off the brakes," 

and they simply did not have the time to make brake repairs. He was 

not at the mine site on November 24, but he does know Mr. Inman and 

Mr. Hinkle and considers them to be good operators. He worked for 

Mine Foreman Vernon on a day-to-day basis and did not consider him 

to be a good foreman because he did not know how to move his dirt or 

work with his men. Company President Rybski had asked him to assist 

Mr. Vernon, but he would not take the foreman's job, although he 

took such a job at a different mining company. When the equipment 

was c;lown, Mr. Inman and Mr. Hinkle would "help out a little bit" in 

assisting the mechanic in making repairs (Tr. 76-84). 

On cross-examination, Mr. Cooper testified he was terminated by 

the respondent on December 7, 1978, and that Mr. Rybski stated, "[w]e 

had better part company." He recalled repairing a scraper shortly 

before he left the company, and indicated that it "blowed up" shortly 

after that, but insisted he was not at fault since he believed he 

had repaired the machine properly (Tr. 85-87). 

William McCormick testified that he was employed by the respondent in November of 1978 and recalled the day the State inspectors 

came to the mine, but knows nothing about what they found. He 

1091 
recalled mine foreman Don Vernon addressing the men as a group 

after the inspectors left and recalls him asking "[w]ho was the 

dirty son-of-a-bitch that called the inspectors in?" (Tr. 88-91). 

On cross-examination, Mr. McCormick stated that Mr. Vernon met 

with the men the morning following the departure of the inspectors 

from the mine, and the whole crew was present. Nothing else was discussed and no one.said anything else and Mr. Vernon mentioned no names 

as possible parties who may have filed the complaint. Mr. McCormick 

had no knowledge as to who may have made any safety complaints, and 

Mr. Vernon never made any further inquiries in this regard. 

Mr. Vernon did remark that Mr. Inman was "a damned good operator" 

(Tr. 91-96). 

Wayne Baker is employed by the respondent and was so employed 

in November 1978. He recalls Mr. Vernon making a remark concerning 

"[w]ho was the dirty son-of-a-bitch" that turned him in to the inspectors, but the remark was not addressed to anyone in particular. He 

knows Mr. Inman and Mr. Hinkle and stated that they seemed to do 

their work as scraper operators. He recalled an accident when the 

engine on his pan quit and went backwards and ran into another one. 

The fact that the brakes were inoperative would not have made any 

difference since once the engine quits, all power is lost. The pan 

had no brakes that day and Mr. Vernon knew it (Tr. 99-102). 

On cross-examination, Mr. Baker stated that Mr. Vernon received 

no information from his remark that would indicate to him that 

Mr. Inman or Mr. Hinkle were the ones that contacted the State 

inspectors (Tr. 102). 

Mr. Baker had no idea who had contacted the State inspectors 

at the time Mr. Vernon made his remark, and when he learned that 

Mr. Inman and Mr. Hinkle were laid off, he did not know what to make 

of it. The remark made by Mr. Vernon was "off-the-cuff" at the end 

of the shift, the day the inspectors came and was not directed to 

anyone in particular (Tr. 103-105). 

Robert Robinson was formerly employed by the respondent as a 

dozer operator and indicated that when problems arose with the equipment, he would help repair it. Problems were experienced with equipment brakes. He was working on a front-end loader the day the 

inspectors came to the mine, and they did not have time to fix the 

brakes. As far as he knew, mine management and the foreman were 

aware that the brakes were not working on some of the equipment. Re 

recalled Mr. Vernon making the remark concerning who may have complained to the inspectors and believed that Mr. Inman and Mr. Hinkle 

did their job (Tr. 106-109). 

Larry Jennings was employed by the respondent until the end of 

November 1978, but was not at the mine when the inspectors were 

1092 
there. He was involved in an accident concerning Mr. Baker when his 

pan engine quit and his machine came down a hill, and he also rolled 

a pan. If the pan had good brakes, the accident may have been prevented (Tr. lll-ll2). He rolled his pan when he tried to cut a 

square corner and rolled over. That incident was not caused by bad 

brakes, but by a mistake in judgment on his part (Tr. 116-117). 

Randy Inman testified that he is now employed as a pottery worker 

and ram press operator. He was previously employed in mining beginning 

in 1973, and has operated loaders, trucks, and bulldozers, and has had· 

7 years of mining experience. He worked at respondent's mine from 

August 11 to November 25, 1978, and he ind:i.cat~d that there had been 

accidents at the mine involving a highwall collapse and pans colliding. The pans did not have brakes and company management knew about 

it. 4s long as they would run, he was supposed to run them and he was 

concerned that someone would be injured. He spoke with Mr. Jackson 

about the situation and Mr. Hinkle was with him at the time, although 

he was not directly involved in making the report to Mr. Jackson. He 

was simply standing nearby. He was operating equipment at the mine 

when the inspectors appeared and he told John Hammond that he had 

spoken to Mr. Jackson about the situation and this was before they 

came to the mine. Mr. Vernon addressed the miners and wanted to know 

"[w]hich one of you dirty son-of-a-bitches called the inspectors?," 

but no one said anything (Tr. 120-132). When he and Mr. Inman 

reported to work later on a Saturday, Mr. Vernon instructed them to 

go to his office and told them that he wanted to speak to them. 

Mr. Vernon advised them that since the pans were shut down, they 

would have to be laid off, even though other miners were hired 

after they were (Tr. 135). Mr. Vernon told them he "did not like 

your act" (Tr. 136) and advised them that they were trying to 

"stir up trouble" (Tr. 136). Mr. Vernon advised them that he would 

indicate that they were let go for lack of work ·(Tr. 136). 

Mr. Inman indicated that he had received recent pay increases, 

and about 3 weeks before he was laid off, he received a 50-cent per 

hour increase, which other older workers did not receive. He also 

indicated that Mr. Vernon made him a leadman over two other workers 

and that he never missed any work time. He also indicated that he 

averaged 20 to 25 hours of overtime each week and that he had 

assisted in the repair of equipment and he assumed that there was 

work of this type available after November 24. He identified several daily worksheets which he turned in and which indicated that 

equipment needed repairs (Tr. 136-144; Exhs. C-2 through C-2(h)). 

On cross-examination, Mr. Inman testified that after he was laid 

off, he began work with Hall Pottery Company on January 27, 1979, at 

a daily pay of $27, plus a weekly bonus ranging from $30 to $60. He 

indicated that he has made as much as $208 in 1 week, and that he was 

on unemployment drawing $51 a week from the time he was laid off until 

he went to work with Hall Pottery. He stated that he told no one 

1093 
other than John Hannnond that he had reported the unsafe working conditions. He told Mr. Hammond because they were co-workers and good 

friends. He did not tell Mr. Vernon that he reported the conditions. 

On the day he was laid off, he called Mr. Rybski to inform him that 

he and Mr. Hinkle had been laid off and Mr. Rybski indicated that he 

did not know about it, but would make an inquiry into the matter. He 

denied ever telling anyone that he "would get Don Vernon." No one 

other than Mr. Hinkle and Mr. Hammond knew that he had informed the 

the State inspectors about the equipment defects. He made no statements prior to November 24 to Mr. Vernon which would lead him to conclude that he had made any complaints (Tr. 144-154). 

On redirect examination, Mr. Inman testified that when they were 

getting ready to leave work on the day the inspectors arrived, he 

observed Mr. Hammond and Mr. Vernon talking together in a truck, but 

he did not know what they were talking about. He indicated that 

several other employees were hired after he was, and this included 

Mr. Hammond, Mr. Hinkle, and Mr. Vernon. 

On recross-examination, he could offer no reason as to why 

Mr. Hammond would have breached his confidence and informed Mr. Vernon 

of the fact that he had complained to the State inspectors (Tr. 155-

159). 

In response to questions from the bench, Mr. Inman stated that he 

knew of no reason why Mr. Hammond would inform Mr. Vernon about the 

fact that he hiid complained to the State inspectors, except possibly 

"to better himself in the company." Although the mine is inspected 

by Federal Mine inspectors, he never saw any on the property, and the 

reason he did not complain to them is that he did not know how to. 

contact them. During the period of his employment at the mine, he did 

not see fit to bring the equipment conditions and roll-overs to the 

attention of mine management because they knew about them. He also 

believed that mine management should have known about the equipment 

defects because of the fact that they were reported on the daily work 

reports, and, even though mine management knew about them, they did 

nothing (Tr. 159-167). 

Mr. Inman stated that he believed he was laid off because he had 

complained to the State mine inspectors. He and Mr. Vernon had been 

friends and Mr. Vernon simply told him he "didn't like his act" when 

he informed him that he was being laid off. He gave Mr. Vernon no 

reason to believe that he had informed the State inspectors (Tr. 167-

169). On the day that he was laid off, he contacted State Inspector 

Jackson and asked him whether he had told anyone about the complaint 

and Mr. Jackson informed him that he had not. Mr. Jackson arranged 

for him to speak with the MSHA people in New Lexington the following 

Monday (Tr. 172-176). 

1094 
On further recross-examination, Mr. Inman identified a signed 

statement he made to MSHA on November 27, 1978 (Exh. R-2). He conceded that his statement does not contain any indication that 

Mr. Vernon told him that he "didn't like his act" or that he was a 

"troublemaker," and he explained that he evidently forgot to mention 

it at the time his MSHA statement was made and that his statement was 

incomplete. He indicated that when Mr. Vernon first arrived at.the 

office on the day of the lay-off, he did "hem-haw at first," poured 

himself a cup of coffee, and was leisurely talking to him and 

Mr. Hinkle (Tr. 178-181). 

In response to bench questions, Mr. Inman "indicated that he and 

Mr. Vernon had gotten along well in· the past and Mr. Vernon had 

visited his home. He and Mr. Vernon never had any "run-ins" and as 

far a$ he knew, Mr. Vernon never "had it in for him" (Tr. 183, 184). 

Kenny Hinkle testified that he was acquainted with State mine 

inspector Richard Jackson and that he lives about a mile from him. 

Mr. Hinkle is now employed in the oil fields, but previously worked 

at the Redfield No. 2 Mine from October 1 to November 25, 1978, and 

has had a year and a half experience in working with heavy equipment. 

He testified that he was aware of equipment defects at the mine, 

namely, two pans which had no brakes. He did not report the defects 

because mine management knew about it and Mr. Vernon would have him 

operate the equipment even though he knew the brakes were bad. 

Mr.Hinkle indicated that he was with Mr. Inman on November 10 at a 

carnival when he (Inman) complained to Mr. Jackson, and that he was 

also at the mine when the State inspectors arrived and tagged some 

equipment. On that day, Mr. Vernon made a statement "[w]ho is. the 

dirty son-of-a-bitch that called them?," meaning the mine inspectors. The next day, he and Mr. Inman arrived at work as usual and 

Mr. Vernon made some work assignments.but asked them to go to his 

office. Mr. Vernon arrived at the office and informed them that he 

would have to let them go because the mine inspectors shut the pans 

down. When Mr. Inman asked why he was being laid off, Mr. Vernon 

told him "I didn't like your act." When he (Hinkle) asked Mr. Vernon 

why he was being laid off, Mr. Vernon told him that he did not 

have enough experience (Tr. 186-194). 

Mr. Hinkle testified that he believed he and Mr .• Inman were 

laid off because Mr. Vernon somehow learned that they had informed the 

State mine inspectors. During the lunch hour on the day the inspectors arrived at the mine, he and Mr. Inman went to Mr. Hammond and he 

heard Mr. Inman tell Mr. Hammond what he had done. Mr. Hinkle then 

gave Mr. Inman a "dirty look" and left because he did not believe 

Mr. Inman should have told Mr. Hammond about the complaint. Later 

that day, he saw Mr. Hammond talking with Mr. Vernon. Mr. Hinkle 

indicated that he never missed a day of work, had worked overtime, 

and had also performed some maintenance work on his equipment (Tr. 

194-197). 

1095 
On cross-examination, Mr. Hinkle testified that he was currently 

employed with Altier Petroleum in oil and gas drilling and began work 

there in March at a weekly gross pay of $165.70. Prior to this 

employment, he was unemployed and drawing $167 unemployment compensation pay. He confirmed that he rolled a pan over on its side on 

November 14, and Mr. Vernon told him to be more careful. Mr. Hinkle 

stated he told no one that he and Mr. Inman had contacted State mine 

inspectors and he did not discuss it with Mr. Hammond, was not in on 

that discussion, and it was strictly between Mr. Harrnnond and Mr. Inman. 

Mr. Hinkle admitted that he did make a statement that he would "get 

Don Vernon." He made this statement to Mr. Vernon a week after he 

was laid off and he made it during the course Gf a conversation when 

he attempted to learn why he was laid off (Tr. 198-202). 

Qn redirect examination, Mr. Hinkle stated that at the time he 

rolled over the pan, Mr. Vernon asked him whether he wanted to make 

out a report. Mr. Hinkle declined to make a report and Mr. Vernon 

asked him to keep quiet about it .. Although he did not discuss the 

fact that he had made complaints to State inspectors _with 

Mr. Harrnnond, he was present when Mr. Inman advised Mr. Hammond of 

this fact. 

On recross-examination, Mr. Hinkle stated that during the carnival of November 10, he did not specif:j.cally complain to State Mine 

Inspector Jackson, but simply asked him whether Mr. Inman had told 

him everything. However, after he was terminated on November 25, he 

did discuss the bad pan brakes with Mr. Jackson (Tr. 205-206). After 

he was fired, he and Mr. Inman discussed th~ matter with Mr. Jackson 

and Mr. Hinkle believed he was fired because he thought that 

Mr. Hammond had tol.d Mr. Vernon about the complaint to the State mine 

inspector (Tr. 207). Mr. Hinkle stated that he did not know whether 

Mr. Imman advised Mr. Hammond that he (Hinkle) had gone with Mr. Inman 

to make a complaint to Mr. Jackson. Mr. Hinkle stated that when he 

heard Mr. Inman getting ready to tell Mr. Hammond, he left the area 

(Tr. 208). Mr. Hinkle stated that prior to his termination, he was 

on good terms with Mr. Vernon (Tr. 210). 

Respondent's Testimony 

Mr. Donald Vernon testified that he was employed by the respondent from approximately August 14, 1978, until January 3, 1979, beginning as a bulldozer operator and ending as a mine foreman, a position 

to which he was appointed in October 1978. His responsibilities as a 

foreman included keeping all equipment running properly, assigning 

work, ordering parts, and generally running the entire mine. For a 

brief period of time before becoming mine foreman, he worked with 

Mr. Inman and Mr. Hinkle as an equipment operator, and after his 

appointment as mine foreman, they worked for him. 

Mr. Vernon testified that in his capacity as mine foreman, he 

kept records pertaining to personnel evaluations concerning the work 

1096 
performance and proficiency of his employees, including Mr. Inman and 

Mr. Hinkle (Exhs. R-3 and R-4). He testified as to certain entries 

made by him on Mr. Hinkle's personnel card, and those were as follows: 

11/7/78, fair operator; tries to do the best he can. 

11/14/78, he put a -- laid a pan up on its side. No damage 

or no report made and there was no time lost. 11/16/78, he 

gets excited and he's cowboying his machine. 

11/18/78, he's not working out and he doesn't listen 

to instructions. 11/25/78, I laid him off: lack of work 

and poor performance. 11/30/78, come in to pick up his 

check. He threatened me with bodily harm: There was 

nobody around but myself. 

Mr. Vernon testified as to certain entries that he made on 

Mr. Inman's personnel card, and they were as follows: 

10/23/78, he operates good, but needs to improve. He 

will do anything he's told, but he complains. 11/2/78 

came in and picked up his check and went home sick. 

ll/7/78, I talked to him about moving a little bit faster. 

11/9/78, I raised him to $6.50 on a previous week because 

he had cried or after he had cried. 11/13/78, run 400 and 

fed to 560; should have been the other way around; left a 

big pile of dirt in the pit. 11/13/78, switched him to 

the 560 because of poor work. 11/14/78, 560 went out of 

service so I laid him off for a few days. 11/25/78, J 

laid him off for poor performance and lack of work. 

(Tr. 211-226). 

Mr. Vernon t t'ified that he believed Mr. Inman was "afraid 

of his machine" ,, did not know the "ins and outs of the machine." 

As for Mr. Hinkle, he believf'd that he operated his machine too 

fast, failed to listen to safety instructions, and was an unsafe 

operator. He would rate Mr. Hinkle as "bad" in following instructions, and Mr. Inman as "fair" in this regard. He terminated them 

on November 15, 1978, because of lack of work in that four of the 

machines were down, and the week following he was going to lose 

two additional rental machines. In these circumstances, he stated 

that he would have an overage of three people and someone had to 

be laid off. He evaluated all of his personnel and decided to 

retain those who he believed were the best, efficient, and safest 

machine operators, and seniority had nothing to do with his decision in this regard. There was a decrease in the number of personnel working for the respondent during the period November 24, 

1978, and January 3, 1979, namely three, and on November 4, 1978, 

the company had approximately 17 employees (Tr. 226-229, 236). 

1097 
Mr. Vernon stated that he first observed the two State mine 

inspectors in question at the mine on November 24, 1978, while giving Mr. Inman some instructions on how to operate the 355 bulldozer. 

Mr. Vernon confirmed that he was aware of the fact that two pieces 

of equipment were operating with bad brakes and since he saw the 

inspectors, he shut the machines down. The inspectors went directly 

to those machines· and after some discussion, they "red tagged" them. 

He could recall nothing in his conversation with Inspectors Leigh or 

Jackson which would give him any indication as to who may have complained to them. He did not terminate Mr. Hinkle or Mr. Inman 

because of any knowledge or suspicion on his part that they may 

have complained to the inspectors, and the first time he learned 

about their complaint was the following Wednesday after they were 

terminated (Tr. 229-233). 

Mr. Vernon confirmed that after the State inspectors left the 

mine site, he did remark to his work crew as to "[w]ho is the dirty 

S.O.B.'s that called the inspectors." However, he st:,ated that he 

made the remark in a "joking manner" and everyone took it as such. 

At that time, since the State inspectors informed him that he would 

need ~ foreman for the night shift, and since the only two people 

available were John Hammond and assistant mine foreman Bob Rybski, 

he took Mr. Hammond aside and asked him whether he would be interested in the job. Mr. Hammond told him he had to check with his 

wife and that he would let him know later. Mr. Rybski was used as 

the night foreman for awhile and Mr. Hammond was later appointed to 

the job (Tr. 233-238). 

On cross-examination, Mr. Vernon confirmed that he was aware of 

the bad brakes on the machines, was aware of it for a week, and had 

instructed the mechanic to take care of the matter. The mechanic 

informed him that he could not obtain parts and did not know what was 

wrong with the brakes. Rather than shut the machines down, which 

would have entailed laying pe...:>ple off, he decided on the "lesser of 

two evils" and permitted the machines to run. He believed they could 

be operated without brakes since the 12-foot blade could serve as a 

braking device, and the area where the machines were operating was 

flat· and presented no grave danger. The incident involving the collision of two machines was caused by engine failure rather than bad 

brakes. He could recall making no remarks that he considered 

Mr. Inman to be a good operator, although he did appoint him as a 

"leadman" for a brief period of time over two loader operators on 

his shift, namely himself and Mr. Hinkle, and for a brief period of 

time, Mr. John Hammond. However, he took him off as lead operator 

over Mr. Hammond the day after he appointed him, because he did not 

know as much about the machine as did Mr. Hammond. Both Mr. Hinkle 

and Mr. Inman worked substantial overtime, and he believed that 

Mr. Hinkle was a steady worker, but that Mr. Inman was not because 

he missed several days of work, 2 pay days in a row, supposedly due 

to the illness of his father (Tr. 238-246). 

1098 
Mr. Vernon testified that during his conversation with Mr. Hammond 

on November 24, he did not question him as to who may have complained 

to the State inspectors. Mr. Vernon confirmed that he told the MSHA 

investigator that he terminated Mr. Hinkle and Mr. Inman because of 

"lack of work and poor performance" (Tr. 249-253). Mr. Vernon denied 

that he had been offered reemployment with the respondent or that the 

respondent was going to assist him in obtaining employment (Tr. 254). 

On redirect examination, Mr. Vernon identified Mr. Inman's and 

Mr. Hinkle's time cards and notations which he made on the cards as 

to their final pay checks, and the fact that they were terminated for 

lack of work (Exhs. R-5 and R-6, Tr. 263). 

On recross-examination, Mr. Vernon confirmed that he asked State 

Inspector Jackson about his father and whether they were related and 

he did so because his father helped him in studying for his mine foreman's test. He did recall Mr. Jackson giving him work slips pertaining to Mr. Inman, or Mr. Jackson remarking that Mr. Inman was doing a 

good job (Tr. 266-268). 

In response to bench questions, Mr. Vernon stated that he left 

his employment with the respondent on January 3, 1979, because he was 

not making enough money, that Mr. Hammond never indicated to him that 

Mr. Hinkle and Mr. Inman had made any complaints, and he was not aware 

that they made such complaints (Tr. 270). 

John Hammond is employed as a night foreman bulldozer operator 

for the respondent. He testified that he has been employed by the 

respondent for 7 months. He confirmed that Mr. Inman told him that 

he had called Mr. Jackson about the pan brakes, and believed that the 

conversation took place "around November 22, 11 but he was not sure. 

He did not recall discussing the subject with Mr. Hinkle. He recalled 

the day, November 24, 1978, when the State inspectors came to the mine 

to check the equipment, but was not invovled in any discussions with 

them. He confirmed the comment made by.Mr. Vernon to the men about 

"[w]hich S.O.B. turned us in to the State mine inspectors?," but he 

(Hammond) and the others took it as a joke and they laughed about it. 

He denied any conversations with Mr. Vernon after that with regard to 

the State inspectors, and indicated that Mr. Vernon talked to him 

about being a shift foreman (Tr. 272-276). 

On cross-examination, Mr. Hammond confirmed that Mr. Inman contacted him the night before the instant hearing and asked to speak 

with him about the case. He also confirmed that he told Mr. Inman 

that he did not want to discuss it with him because he would have to 

give up his job, and that he had a family to support and "was not 

messing up for nobody" (Tr. 278). He told no one about Mr. Inman's 

advising him that he had called the inspectors (Tr. 279). 

In response to bench questions, Mr. Hammond stated that he could 

recall no conversation with Mr. Inman concerning his complaining to 

1099 
the State mine inspectors on the day the inspectors came to the mine. 

He ~as not surprised to see the inspectors because he knew that 

Mr. Inman had called them and he (Hammond) was looking for them. 

Mr. Hammond did not recall Mr. Inmann telling him that he persona-Hy 

discussed the matter with Inspector Jackson, and his recollection 

was that he said he "called him" (Tr. 281). 

Witnesses Recalled for Testimony by the Presiding Judge 

William McCormick was recalled and testified as follows (Tr. 

285-287): 

JUDGE KOUTRAS: I don't want to leave you with the 

impression I'm picking on you, but you've been called as 

my witness, and you are still under oath. And I just 

picked you at random; you just happened to be the first 

one on the list here. 

I just wanted to ask'you one or two questions. With 

respect to the incident where Mr. Vernon went to the 

salamander and made some statements as to which of you 

S.O.B.'s -- and I'm quoting the testimony here -- blew 

the whistle so to speak, do you recall that incident? 

I believe you testified to that. 

A. Yeah. 

Q. How did you take that? 

A. Well, I just -- It just was a figure of speech. 

I don't know; we all might have laughed or I don't -- I 

mean, I don't know. I -- of course I didn't know --

really know what it was all about. 

Q. Did you laugh? 

A. I might have at the time. 

Q. Was that his only co~ent? 

A. At that time, yes, sir, that I recall. 

Wayne Baker was recalled and testified as follows (Tr. 287-289): 

.JUDGE KOUTRAS: Mr. Baker, have a seat please. I just 

want you to know that I have asked you to come back in 

because I've got a couple of questions I want to ask.you 

so you are my witness now and you are still under oath. 

Q. You testified earlier in the day with regard to 

the ind.dent at the salamander where Mr. Vernon had made 

1100 
a statement of some sort, which of you S.O.B.'s reported 

it to the inspector, or words to that effect. Do you 

recall that testimony? 

A. 

Q. 

A. 

Q. 

A. 

sonally. 

to me. 

Uh-huh. 

And do you recall that incident? 

Right. 

How did you personally take his remark? 

I don't think it was directed to anybody perI mean, I didn't take it personally directed 

Q. Well, I mean, what was your reac.tion. Was he 

serious when he sa:i.d it? 

A1 No, I don't think he was. He had kind of a 

smile on his face and we all laughed at it when he said 

it. 

Q. Did you laugh? 

A. Yes. 

Q. Was it an off-the-cuff-type situation or did he 

assemble everyone there and say, hey, listen, I want to 

to the best of your recollection? 

A. No. We was already standing around there and I 

think it was just an off-the-cuff remark. 

Q. I believe someone asked you earlier whether you 

knew for a fact or whether you have the information as 

to whether Mr. Inman and Mr. Hinkle had reported safety 

infractions to the State mining inspectors; and I believe 

your answer was no, you had no knowledge of it? 

A. Right. 

Q. Do you know whether there was anything in terms 

of any rumors or any stories floating around the mine 

that either of these two gentlemen may have made any 

complaints? 

A. No. I never heard any. No. 

Mr. Inman was called in rebuttal by his counsel, and testified as 

follows: 

1101 
BY MR. SAFRANEK: 

Q. This remark that he made, did you laugh? 

A. No, I didn't laugh. 

Q. Did anybody else laugh to your tecollection? 

A. I ~- don't remember of anybody laughing. They 

could have; of course, you know, like Bill said, I 

you know, it's been a long time. You know, I don't 

Q. If they had, could it have possibly been 

nervous laughter of a sort? 

A. It just struck me because, you know, I knew 

that I was the one that told them. And I was about 

half afraid to say anything or laugh or do anything. 

But I figured maybe he was throwing the remark right 

to me. I took it personally because I did call him. 

I didn't call him; I told him there at the Bingo 

thing. And I kind of took it kind of personal, 

myself. 

Rebuttal Testimony 

Mr. Inman was recalled and testified that he could recall no 

one laughing over Mr. Vernon's remark, but admitted that he could 

not remember because of the passage of time. He took it personally 

because he was the person who complained to the State inspectors 

(Tr. 209). Mr. Inman also clarified and confirmed the fact that 

he complained to Inspector Jackson personally at a local carnival 

where he was in attendance (Tr. 297). Mr. Hinkle was recalled and 

denied making any "smart remarks" to Mr. Vernon, and also stated 

that he followed work directions given him by Mr. Vernon (Tr. 300). 

Arguments Presented by the Parties 

Complainant 

In their posthearing brief, complainants argue that prior to the 

November 24, 1978, State inspection of the mine, the mine had been 

inspected by State inspectors and found to be in good shape as far 

as safety violations were concerned. However, after November 24, 

major safety violations occurred, namely, much of the equipment was 

operating without brakes or with brakes which were inadequate, and 

that mine foreman Donald Vernon was aware of these brake conditions 

and, in fact, shut down two defective pans on November 24 before the 

State inspectors could get to them. The November 24 State inspection was prompted by complaints made by Mr. Inman and Mr. Hinkle to 

1102 
State mining inspector Richard Jackson at a local school carnival on 

November 10, 1978, and when Mr. Jackson and his fellow inspector, 

Ronald Leigh, inspected the mine on that date, they found several 

major violations, in addition to the defective brakes, namely, the 

lack of first-aid equipment at the mine, and a fuel oil truck operating without brakes and a defective exhaust system. 

With regard to Mr. Vernon's alleged motivation in terminating the 

complainants from· their employment, it is argued that before the termination, Mr. Inman told fellow miner John Hammond that he and 

Mr. Hinkle had talked to Inspector Jackson, and that Mr. Vernon had a 

conversation with Mr. Hammond about the report the complainants had 

made to Mr. Jackson (Brief, p. 3). In view of "this fact, complainants 

argue that there could not have been any other rea.son for their terminations since their attendance records were excellent, both had 

worked substantial overtime, and both were considered 'satisfactory 

employees, particularly, Mr. Inmann, who in the past had been characterized by Mr. Vernon as a "damned good operator," had.received a 

raise just 3 weeks before his termination, and had been designated by 

Mr. Vernon as a lead loader operator over other loader operators. 

With respect 1.to the respondent's defense concerning the terminations, complainants argue that responent's purported excuse for the 

lay-offs, namely, that someone had to be laid off because two pieces 

of equipment were shut down and the complainants were selected because 

they were less than satisfactory employees is a ludicrous argument 

whfch does not square with the realities of mining practice, particularly in a situation where the two employees selected just happen to 

be the ones who complained about safety conditions. Complainants 

assert that the mathematical probabilities of two employees in such 

a situation being terminated is 1 chance in 272 (one-seventeenth x 

(one-sixteenth) (16 x 17 = 272). Further, in support of these 

assertions, complainants argue that there is substantial evidence 

in the record to the effect that the practice in the coal fields 

when equipment is down or out is to throw every available man onto 

the job of getting it back in working order, even if they are used 

only as runners and general laborers, and they cite the testimony of 

State Inspector Leigh (Tr. 25-26), and former Mine Mechanic Cooper 

(Tr .. 83) as support for this contention. 

Considering common experience, complainants arg~e that one can 

only conclude that they were terminated because of their report·to 

Inspector Jackson and point to the fact that their perception of this 

motivation on the part of Mr. Vernon is indicated by the fact that 

they innnediately contacted Mr. Jackson after they were terminated, who 

introduced them to Federal mine inspector Joe Zavora, who assisted 

them in the filing of their initial discrimination complaint on 

November 27, 1978: As for Mr. Vernon's knowledge that the complainants had.made the complaint to Mr. Jackson, complainants assert that 

1103 
the "evidence did show a channel from Inman to John Hammond from foreman Vernon through which the fact of complainants' report to the 

state mining inspector could have been communicated" (Brief, pp. 5-

6). Further, complainantsargue that the evidence establishes that 

Mr. Inman was substantially more diligent than other workers in 

reporting safety defects through certain daily maintenance sheets, 

which fact was brought to Foreman Vernon's attention by Inspector 

Jackson (Tr. 22, 46-47). A violation of section llO(b)(l) is established when discriminatory action is taken as a result of a report 

of a safety violation to the supervisory personnel. Munsey v. Morton, 

507 F. 2d J.202 ( 1974). And likewise, a· violation is made ou·t when discriminatory action is also taken against a fellow employee who is a 

close friend and companion as Inman and Hinkle"were (Tr. 121, 186, 

191). 

Respondent's Arguments 

Respondent argues that insofar as the alleged discrimination is 

concerned, the fact that the respondent was using defective equipment 

on the day of the State inspection is not an issue. However, by shutting the equipment down, respondent asserts that the natural consequence of this event was the fact that together with the loss of other 

equipment, the operators of the equipment had to be laid off. Regarding the assertion that the complainants could have been retained and 

used in making machi_nery repairs; respondent argues that complainants 

were not qualified or able to make equipment repairs and that even if 

they were, this was a judgment decision for mine management to rnake, 

and since the complainants were not mechanics, the respondent properly felt that they were not capable of making such repairs. 

With regard to the termination of the complainants by the respondent, respondent argues that the complainants were terminated following the loss of certain equipment, namely, the equipment which was 

shut down and other rental equipment. In the judgment of the respondent, since the work performance of the complainants was less than 

satisfactory, and since someone had to·be let go, the decision to 

terminate the complainants for "lack of work" was a management 

perogative which is fully supported by the record, including the 

official work records concerning the complainants' period of employment with the respondent. Mr. Inman had been employed for a little 

over 3 months prior to his termination, and Mr. Hinkle for less than 

2 months. 

Regarding Mine Foreman Vernon's purported motive in terminating 

the complainants, respondent argues that-there is no credible evidence 

that Mr. Vernon knew that the complainants had made any safety complaints to State Mine Inspector Jackson. Respondent dismisses as 

"trite guessing and conjecture," the attempts by the complainants to 

link.Mr. Vernon's conversations with Mr. Jackson concerning the 

identity of Mr. Jackson's father and his place of residence with the 

1104 
fact that the complainants may have been the individuals who complained to Mr. Jackson. As for Mr. Vernon's remarks concerning 

"[w]hich of you S.O.B.'s complained?," respondent asserts that this 

remark was made in jest and that the men accepted lt as such. In· 

sununary, respondent asserts that the complainants have failed to 

establish by a preponderance of the evidence that they were discriminated against or that their terminations were prompted by any 

safety complaints made to State mining inspectors. 

Findings and Conclusions 

· Based on a close and careful scrutiny of the entire record in 

this proceeding, it seems clear to me that the assertions made by the 

complainants concerning the alleged discrimination may be summarized 

as follows: 

Complainants were good workers, missed no time at work, 

worked substantial overtime, and were for all intents 

and purposes, good machine operators capable of performing maintenance on their equipment. 

Complainant Inman complained to State Mine Inspector 

Jackson about certain safety practices taking place at 

the mine and asked him to look into the matter. Since 

complainant Hinkle was with him at the time the complaint was lodged, complainant Hinkle must be deemed 

to be a complainant along with Inman. 

As a result of their complaints to the State inspector, 

Inspector Jackson and a fellow inspector came to the 

mine, discussed the matter with Mine Foreman Vernon, 

advised Vernon that Hinkle was a conscientious worker, 

and then proceeded to tag out certain equipment for 

safety violations. 

After inquiring about the residence of Mr. Jackson's 

father, and after attempting to learn who complained by 

making the "S.O.B." statement and discussing the matter 

with John Hammond, a friend and co-worker of Mr. Inman, 

Vernon learned or surmised that Inman and Hinkle had 

filed the complaints, and in retaliation, fired them 

for making the safety complaints. 

Respondent's defense may be summarized as followsi 

Complainants were not the best employees, had worked 

only a short time with the respondent, and after the 

equipment was taken out of service, this resulted in 

a surplus of employees. 

1105 
M:i.ne Foreman Vernon did not know that the complainants had complained to the State mine inspectors, 

his 11 S.O.B. 11 remarks were :i.n jest, and his conversation with John Hammond and Inspector Jackson had 

nothing to do with any complaints made to the State 

mine inspectors. 

Respondent exercised its management prerogative in 

terminating the complainants rather than keeping them 

on in some other capacity. 

The record adduced in this proceeding establishes that there 

were, in fact, certain unsafe practices taking place at the mine at 

or about the time that the complainants were terminated from employment. These practices included the operation of several pieces of 

equipment with either marginal or no brakes, and the condition of 

the equipment was known to mine foreman Donald Vernon. The record 

also establishes that as a result of these unsafe conditions, 

Mr. Inman personally advised State Mine Inspector Jackson about them 

and asked him what he could do about the situation. Although the evidence reflects that Mr. Hinkle did not personally complain to Inspector Jackson, he was with Mr. Inman at the time the complaint was 

lodged, apparently overheard the complaint, and I conclude for purposes of this proceeding, Inspector Jackson could reasonably infer 

that both Mr. Inman and Mr. Hinkle ·were making the complaint. Subsequently, as a result of the complaint made to Inspector Jackson, 

the mine was inspected, and although the equipment had been taken 

out of service voluntarily by Mine Foreman Vernon when he saw the 

inspectors approaching, the inspectors tagged out two pieces of 

equipment and advised Mr. Vernon not to put them back into operation until they were repaired. 

Aside from the fact that there is no direct evidence that 

Mr. Vernon knew that Mr. Inman and I1r. Hinkle had complained to 

Inspector Jackson, I cannot conclude that the testimony presented 

can even support an inference that he knew that they had complained 

and retaliated by firing them. While the inspectors did not tell 

Mr. Vernon at the time of the November 24 inspection that Mr. Hinkle 

and Mr. Inman had complained, Inspector Leigh let it be known that 

he "had heard" about the bad brakes on the equipment prior to the 

inspection, and Mr. Vernon purportedly acknowledged that he "kind of 

thought so" (Tr. 21). As for the worksheets alluded to by Inspector Leigh, Mr. Vernon produced them at Mr. Jackson's request, and 

Mr. Leigh overheard Mr. Jackson comment that one of the two (meaning Inman or Hinkle) "was doing their job" because the worksheets 

contained "marks on it that there had been something being reported 

of bad equipment," and Mr. Leigh believed that Mr. Jackson "mentioned the fellow's name on that sheet at that time" (Tr. 22). 

Mr. Jackson testified that he asked Mr. Vernon to produce the 

equip~ent worksheet.s and Mr. Vernon produced 11 a big stack of them." 

1106 
Upon examining the worksheets in Mr. Vernon's presence, Mr. Jackson 

connnented that most of them were marked "okay," meaning that the 

equipment was in good working order, but that one of the sheets 

filled out by Mr. Inman indicated that a particular piece of equi:pment was in need of attention, and he handed Mr. Vernon that particular worksheet. 

The testimony establishes that when Mr. Vernon observed the 

State inspectors on November 24, he voluntarily took the equipment 

with defective brakes out of service and did so because he obviously 

believed that they would discover the defects. Mr. Vernon candidly 

admitted to the inspectors that the scrapers ware operating without 

brakes and indicated he was experiencing difficulty in obtaining the 

necessary parts to keep them in repair (Tr. 15-16). And, while 

Mr. Jackson testified that upon inspection, the inspectors found 

"exactly what had been reported to us, 11 in terms of equipment operating without brakes, the fact is that Mr. Vernon shut the equipment down when he saw the inspectors (Tr. 44). 

Inspector Jackson stated that when he showed Mr. Vernon the sheet 

filled out by Mr. Inman, Mr. Vernon commented that Mr. Inman "does a 

good job, 11 said nothing which wouE lead him to believe that he knew 

Mr. Inman had complained, did not attempt to single Mr. Inman out as 

the one who had complained, and said nothing derogatory about Mr. Inman 

(Tr. 65-66). As a matter of fact, Mr. Vernon made no inquiries of the 

inspectors as to who may have complained to them, and Mr. Jackson 

stated that Mr. Vernon said nothing which would lead Mr. Jackson to 

believe that Mr. Vernon suspected Mr. Inman as being the one who complained (Tr. 66). 

With regard to the conversation between Mr. Vernon and Mr. Jackson 

concerning the identity of Mr. Jackson's father and his place of residence, I cannot conclude that Mr. Vernon had some devious motive in 

making the inquiry or that he was in some way attempting to learn who 

had complained. I find Mr. Vernon's explanation to be cre~ible and 

plausible and find nothing in the record to support a conclusion or 

an inference that he was in any way attempting to learn the identity 

of the complainants. As for Mr. Vernon's 11 8.0.B. 11 comments, when 

vl.ewed in context, I believe and co.nclude from the testimony of the 

witnesses who testified on this comment that it was an "off-the-cuff" 

remark made by Mr. Vernon which the employees took as such. There is 

nothing to suggest that Mr. Vernon threatened anyone or made any 

searching inquiries of the employees in an attempt to learn who may 

have complained. It seems to me that if Mr. Vernon believf!d that 

Mr. Inman or Mr. Hinkle had complained, he would have confronted 

them and asked them about it. As for Mr. Vernon's conversation with 

Mr. Hammond, both denied under oath that they had any discussion 

about who may have complained, and since Hr. Hammond and the comp] ants were on friendly terms, I find nothing in the record to 

su rt any inferences or conclusions that Mr. Hammond had anything 

1107 
to gain by telling Mr. Vernon who may have complained. Although 

Mr. Ham.~ond refused to discuss the matter with Mr. Inman or his 

attorney before the hearing, and purportedly made a comment that he 

did not want to jeopardize his employment with the respondent, these 

events transpired after the fact, that is, after the termination of 

the complainants. ·Further, Mr. Hammond was cross-examined by complainants' counsel at the hearing, and I find his testimony to be 

consistent and credible. 

Mr. Vernon was initially employed by the respondent on approximately August 14, 1978, as an equipment operator, and in October was 

appointed as a foreman. He terminated his employment with the respondent on January 3, 1979, and at that time was the assistant mine foreman. As foreman, his duties included assigning personnel to various 

job tasks, insuring that the employees were at work on time, and insuring that the equipment was in good working order (Tr. 213-214). For 

a brief period of time before he assumed a supervisory role, he and 

the complainants were fellow equipment operators, worked together, 

and apparently enjoyed a good working relationship. In his capacity 

of assistant mine foreman, his duties included the making of performance evaluations of the employees, and in this capacity he maintained 

certain company personnel records and documented the work performance 

of th~ employees, including the complainants which he produced (Exhs. 

R-3, R-4). 

Mr, Vernon testified as to certain entries that he made on the 

company personnel records with regard to Mr. Hinkle during the period 

November 7, 1978, through November 30 1978 (Exh. R-3). On November 7, 

1978, he noted that Mr. Hinkle was a "fair loader operator who tries 

to do the best he can." Subsequent entries made on November 14, 16, 

and 18, reflect that Mr. Hinkle "laid pan on its side," "gets too 

excited, cowboy's his machine," "not working out, does not listen to 

instructions." On August 25, the records reflect "laid him off due 

to lack of work and poor performance," and on November 30 there is 

a notation 11 came in to pick up his check. Threatened bodily harm. 

No witnesses." 

Mr. Inman's personnel record for the period October 23, 1978, to 

November 25, 1978, contained entries made by Mr. Vernon indica:ttng 

that he was a good loader operator, did anything he was told, but 

"complains and needs to improve." A notation for November 7, 1978, 

reflects that Mr. Vernon talked to him "about moving a little faster." 

On November 9, Mr. Inman was given a pay increase to $6.50 an hour, 

and on November 13, he was reassigned to another piece of equipment 

because of "poor work," and on November 14, he was given a "few days 

off" because the "560 is out of service." The final entry for 

November 25, 1978, refle,cts that he was "laid off for lack of work 

and poor performance." 

In addition to the personnel entries which he made, Mr. Vernon 

characterized Hr. Hinkle as an unsafe equipment operator, and stated 

1108 
Distribution 

William K. Bodell, II, Esq. 

Attorney for Island Creek Coal Company 

2355 Harrodsburg Road 

P.O. Box 11430 

Lexington, KY 40575 

Stephen P. Kramer, Trial Attorney 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Joyce A. Hanula, Legal Assistant 

United Mine Workers of America 

900 - 15th Street, N.W. 

Washington, D.C. 20005 

1109 
that he operated his machine too fast and would not listen to 

instructions (Tr. 226). As for Mr. Inman, Mr. Vernon stated that he 

was 11 afraid of his machine"· and that based on his performance in the 

operation of his machine, he believed that Mr. Inman did not know all 

of the "ins and outs of the machine" (Tr. 226). 

In explaining his reasons for terminating the complainants, 

Mr. Vernon testified that after the defective equipment was taken out 

of service, a total of four pieces of equipment were out of service, 

since two additional rental machines would be lost the following week. 

Faced with a surplus of three employees, he contended that he made an 

evaluation of the performance of all of his workforce as to who could 

operate the equipment in the best, efficient, and safest manner and 

that seniority had nothing to do with his decision to terminate the 

complainants (Tr. 226-227). In these circumstances, while it may be 

true that the usual practice in the mines is to assign employees to 

other chores when equipment is down, I cannot conclude that the Act 

requires an operator to make such an accommodation for its employees, 

nor can I conclude from the evidence presented, that respondent discriminated against Mr. Inman or Mr. Hinkle by not assigning them to 

other tasks, while at the same time treating other employees similarly situated any differently. Absent any contractual obligations 

or agreements to the contrary, I believe that the assignment of personnel is a matter within the discretion and judgment of an employer 

and not the employee. Further, I cannot conclude that the complainants have established that they were qualified mechanics; and even 

if they were, I cannot conclude that respondent was undt~r any obU.gation to retain them as mechanics for the purpose of repairing the 

equipment which had been taken out of service. 

Shortly after their termination, the complainants filed a complaint with MSHA, and in connection therewith, executed a written 

statement (Exh. R-2). In that statem~mt, no mention is made about 

Mr. Vernon's alleged co;nments that he considered Mr. Inman to be a 

"troublemaker" a.nd that he "didn't like his act." At the hearing, 

Mr. Inman testified that Mr. Vernon had. made these statements to 

him at the time he informed him of his termination, and Mr. Hinkle 

used the same phrases i.n testify:i.ng as to what Mr. Vernon purportedly said to Mr. Inman. When asked why he had not included 

these statements attributed to Mr. Vernon in his original written 

complaint, Mr. Inman answered as follows (Tr. 178): 

Whether I had forgotten it at the time? I don't know. 

This has been so long ago. 

I had been going over and over and trying to remember 

everything Don had said, about everything that was said in 

that office that morning. Whether it was in here or not, 

I don't know. Evidently, I had forgotten to put it in. 

1110 
But there's a lot of things you remember after you 

think about it. 

During his testimony at the hearing, Mr. Hinkle testified that at 

the time Mr. Vernon advised them that they were being terminated, he 

said 11Well, I'm going to let you guys off because you know that the 

mine inspectors cOm.e in here and shut the pans down and you know they 

come in there,*** (Tr. 193). Yet, Mr. Hinkle failed to include 

this in the written complaint. Thus, viewed in perspective, both of 

the complainants failed to include in their original written complaint·, 

statements attributed to the mine foreman which go to the very heart 

of their present assertion that he was motivated to terminate them 

because they had complained to a State mine inspector. 

With respect to. the prior MSHA inquiry concerning ti1e complaint, 

it was disclosed during the hearing that Mr. Vernon had made a previous statement to an MSHA investigator in which he indicated that he 

terminated the complainants for lack of work and poor performance (Tr. 

2l~9). Although a copy of his previous statement was .Produced and 

examined and used by complainants' counsel during cross-examination, 

counsel decided not to introduce it for the record (Tr. 253). And, 

altho~gh the MSHA inspector was present in the courtroom in response 

to a subpoena, complainants' counsel decided not to call him as a 

witness (Tr. 271). Thus, from the record adduced in this proceeding, 

I conclude that Mr. Vernon has been consistent in his testimony as 

to why he terminated the employees, and as for his own departure as 

an employee, he indicated that he quit because he was not making 

enough money (Tr. 269), and denied that Im has been offered reemploy·· 

ment with the respondent or that the respondent was going to help 

him obtain other employment (Tr. 255). Thus, when viewed in perspective, I cannot conclude that Mr. Vernon had anything to gain by 

coloring his testimony· or concealing the fact that he did, in fact, 

terminate the complainants because of their complaints to the State 

inspectors. Further, after viewing Mr. Vernon on the stand, I find 

him to be a credible witness .md his testimony is consistent with the 

personnel evaluations and notations made by him with respect to the 

complainants' work performance. For example, one of the notations 

that he made was that Mr. Hinkle had threatened him on November 30 

when.he came to the mine to pick up his pay check. Mr. Hinkle 

candidly admitted that he "would get" Mr. Vernon (Tr. 201-202). 

Having viewed the witnesses on the stand, and after careful 

evaluation of all of the testimony, I cannot conclude that the complainants have established through a preponderance of the evidence 

that respondent discriminated against them for exercising their 

rights under the Act to bring to the attention of State mine officials certain unsafe mine practices. It is clear that these rights 

are protected under the Act. However, the burden of proof lies with 

the complainants. I find and conclude that they have not carried 

their burdens and have not established that their termination was 

1111 
prompted by their protected activities. To the contrary, I find and 

conclude that respondent has established through credible and probative evidence that the termination of the complainants was based on 

a lack of work and a management judgment that a reduction in personnel -was necessary. In the exercise of that judgment, I am not convinced that the respondent acted out of any retaliat:i.on aga:i.nst the 

complainants for reasons connected with the:i.r protected activities. 

I believe that in the final analysis, and after their termination, 

complainants speculated that on the day of the inspection by the 

State mine inspectors, Mr. Hammond informed Mr. Vernon that they had 

complained, and that Mr. Vernon retaliated by firing them (Tr. 207). 

As a result of this speculation, they shortly thereafter again contacted Mr. Jackson, who, in turn, arranged for·an interview with an 

MSHA investigator. Upon investigation, MSHA obviously believed that 

the discrimination complaint was not well-grounded since MSHA found 

no discrimination and dismissed the complaint after finding that the 

complainants' safety compl~dnts were not a contributing factor to 

their termination by the respondent. 

ORDER 

In viP.w of the forego:i.ng findings and conclusions, I conclude and 

find that respondent's decision to terminate the complainants w~s not 

m~tivated by respondent's attempts to di.scriininate against them for 

protected mine safety activities. Accordingly, the complaints are 

DIS.HISSED, and the relief requested is DENIED . 

• . . <21~,4/t~· . 

,, _orge . " . Koutr tf fi(/ r 

s 

tf!JvUXl ~, Administrative Law Judge 

Distribution: 

William Safranek, Esq., Box 402, McConnelsville, OH 43756 

(Certified Mail) 

Robert H. Albert, Esq., Kagay, Albert & Diehl, 849 Harmon 

Avenue, Columbus, OH 43223 (Certified Mail) 

Randy Inman, Route 1, Box 201, Crooksville, OH 43731 

(Certified Mail) 

Kenny Hinkle, Route 1, Box 282, Crooksville, OH 43731 

(Certified Mail) 

Thomas P. Piliero, Trial Attorney, U.S. Department of Labor, 

Office of the Solicitor, 4015 Wilson Blvd., Arlington, VA 

22203 

Standard Distribution 

1112 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMltolSTRATIVE I.AW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

·' 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. DENV 78-414-P 

A/O No. 42-00098-02025V 

v. 

King Mine 

U.S. FUEL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION APPROVING SETTLEMENT AND 

ORDERING PAYMENT OF CIVIL PENALTY; 

ORDER DENYING MOTION TO AMEND 

CAPTION AND ORDER GRANTING MOTION 

TO AMEND TITLE OF JOINT 

MOTION AND STIPULATION 

James Abrams, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Richard H. Nebeker, Esq., Callister, Greene & Nebeker, 

Salt Lake City, Utah, for Respondent. 

Judge Cook 

I. Procedural Background 

·on May 5, 1978, the Mine Safety and Health Administration (MSHA) 

filed a petition for assessment of civil penalty against U.S. Fuel 

Company (Respondent) in the above-captioned proceeding. The petition, 

filed pursuant to section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U. S.C. § 820(a) (Act), alleged violations of 30 CFR 

§§ 75.200 and 75.400. The Respondent filed its answer on June 7, 

1978. 

A notice of hearing was issued on July 10, 1978, setting a hearing date of September 12, 1978. Such date was later changed as a 

result of a motion for continuance. On November 6, 1978, an order 

was issued canceling the hearing and continuing the proceeding indefinitely in response to a communication indicating that a settlement 

had been reached. 

On January 24, 1979, MSHA filed a "motion to approve settlement 

and to dismiss." This motion was denied by an order issued on 

January 31, 1979. Notices were issued setting May 10, 1979, as the 

hearing date. 

1113 
On April 30, 1979, the Secretary of Labor moved to amend the 

caption, and the parties filed a "stipulation and joint motion to 

withdraw petition for assessment of civil penalty and for dismissal." 

On May 2, 1979, a telephone conference was held during which the· · 

undersigned Administrative Law Judge and counsel for the parties 

participated. The parties agreed to obtain certain further information to supplement the April 30, 1979, stipulation and motion to 

approve settlement. Accordingly, an order was issued on May 10, 

1979, continuing the proceeding indefinitely. 

The supplemental information was submitted in the form of a 

stipulation and joint motion on August 14, 1979, in conjunction 

with a "motion to amend title of joint motion and stipulation." 

Rulings on the three pending motions are contained herein. 

II. Motion to Amend Caption 

In support of his motion to amend the caption, the Secretary of 

Labor states the following: "Secretary of Labor moves to amend the · 

caption of the pleadings in this case to reflect that Ray Marshall, 

Secretary of Labor, United States Department of Labor, is the petitioner, rather than Secretary of L~bor, Mine Safety and Health 

Administration." 

On April 18, 1978, it was determined by the Chief Administrative 

Law Judge of the Federal Mine Safety and Health Review Commission 

(Commission) that the captions in civil penalty proceedings before 

tbis Commission would be in the format as set forth in the present 

caption to this proceeding. 

Accordingly, the motion to amend the caption will be denied. 

III. Motion to Amend Title of Joint Motion and Stipulation 

The motion states, in part, as follows: 

Petitioner moves, by and through his attorney, pursuant to 29 C.F.R. 2700.13 to amend a pleading entitled 

"Stipulation and Joint Motion.to Withdraw Petition For 

Assessment of Civil Penalty and for Dismissal" attached 

hereto as Exhibit A to "Stipulation of Settlement and 

Joint Motion to Approve Settlement Agreement." 

In support of his motion, petitioner states this is 

necessary to properly describe: (1) the actions of the 

parties, and (2) the instrument upon which relief may be 

properly granted by the Commission. 

Petitioner has been authorized by counsel for respondent to state this motion will not be opposed. 

1114 
Accordingly, the motion will be granted, and the above-noted 

motion, filed on April 30, 1979, will be amended to read "Stipulation 

of Settlement and Joint Motion to Approve Settlement Agreement." 

IV. Approval of Se.ttlement 

As relates to the proposed settlement, information as to the 

six statutory criteria contained in section 110 of the Act has been 

submitted. This information has provided a full disclosure of the 

nature of the settlement and the basis for the original determination. 

Thus, the parties have complied with the inten~ of the law that 

settlement be a matter of public record. 

'fhe settlement figure for the alleged violations is $1,500. The 

assessment for thi alleged violations was $3,600. 

The alleged violations and the settlement are identified as 

follows: 

in 

30 CFR 

Order No. Date Standard Assessment Settlement 

7-0107 (1 LJG) 04/18/77 75.400 $1,800 $ 300 

7-0108 ( 2 LJG) 04/18/77 75.200 1,800 1,200 

As justifications for the proposed settlement, the parties 

part, as follows: 

1. Section 104(c)(l) Order No. 1 LJG (sic), 4/18/77, 

30 CFR 75.400 originally assessed for $1,800.00 to be 

settled for $300.00. 

Gravity, Negligence and Good Faith. 

In this case float coal dust was allowed to accummulate on rock dusted surfaces in the 7 North Section for 

approximately 368 feet. Also, wet loose coal and coal 

dust were allowed to accumulate from the loading point 

inby the entries and crosscuts of the 7 North Section for 

a distance of approximately 2,650 feet and these accumulations ranged in depth from approximately 4 to 18 inches. 

While loose coal could burn if ignited or float coal 

could propagate an explosion if one were to begin, 

moisture in the area decreased the likelihood of such 

an occurrence and so its gravity. 

Roadways were wet and there were several areas where 

water had been pumped out the day prior to the citation, 

thereby significantly reducing probability of a mishap. 

1115 

state, 
Additionally, methane gas has not been detected in the 

King Mine by the Secretary's duly authorized representative. There has not been an explosion or fire caused by 

methane gas in this mine. On April 18, 1977, the day the 

citation was issued, the section was not working. Marion 

Bingham, the construction foreman, had been sent to the 

7 North Section with the large rock duster to rock dust 

the section. 

Although the float coal dust and the.accumulations 

behind the line curtain in the first left entry were dry 

(see Exhibit "A"), that entry constituted only 90 feet 

of the total accumulations. The rest of t'he accumulations 

of loose coal and fines contained moisture. This fact 

diminished the probability of a fire. Further, the probability of an explosion which could be propagated by the 

accumulations of float coal dust was diminished by the 

fact that no accumulation of methane was measured. 

On April 18, 1977, the inspector did not c,ite any 

conditions and/or violations which could serve as a 

potential ignition source; similarly, no electrical 

defects were cited. Although the possible consequences 

of the violation could be serious, the probability of 

those consequences occurring (i.e., a fire and/or an 

explosion) was measurably reduced by the above conditions. 

The accumulations had been observed, and the construction foreman was preparing the rock duster for 

operation in the section when the violation was cited. 

It is stated that the citation was the result of the 

operator's ordinary negligence. 

The operator rapidly undertook the process of rock 

dusting the section and abated the violation by rock 

dusting the float coal dust and by loading out the loose 

coal and coal fines and then rock dusting the cleaned 

areas. It is stated that the operator exhibited good 

faith in attempting to rapidly correct the violation. 

The original assessed penalty was amended to $300.00 

by the Office of Assessments as per Exhibit "D" attached 

hereto. 

Previous History. 

During the 24 months prior to the subject violation, 

388 violations were assessed at the King Mine (see 

Exhibit "B"). From the inception of the Federal Coal 

Mine Health and Safety Act of 1969 to the date of the 

1116 
subject violation, the operator's. total history of previous paid violations was 872 (see Exhibit "C"). This 

is an average of approximately 116 violations per year 

up to the date of the subject violation. Of these violations 72 or approximately 8.3 % were violations of 

30 CFR 75.400. This does not indicate an habitual disregard for the mandates of the standard on the operator's 

part. 

2. Section 104(c)(l) Order No. 2 LJd (sic), 4/18/77, 

30 CFR 75.200 originally assessed for $1,800.00 to be 

settled for $1,200.00. 

Gravity, Negligence and Good Faith. 

On April 18, 1977, an MSHA inspector found that the 

roof at four locations in 7 North Section was loose and 

it had not been taken down or supported. The areas 

involved were three crosscuts between actively used 

entries and a proposed intake entry. Miners could have 

accessed the area in question and been exposed to serious 

injury or death. The area was not being actively worked. 

However, a warning sign of the danger was posted. A fall 

had occurred in the proposed intake entry (Exhibit "A"). 

The poor roof condition had been entered in the 

preshift books on April 7, eleven days before the subject 

violation was cited evidencing operator negligence. The 

only corrective action which had been taken was to post 

signs warning of the "Bad Topu (see the Order and Exhibit 

"B") • 

The violation was abated 

roof bolts in the four areas. 

operator exhibited good faith 

correct the violation. 

Previous History. 

through the installation of 

It is stated that the 

in attempting to rapidly 

During the 24 months prior to the subject violation, 

388 violations were assessed at the King Mine (see 

Exhibit "B"). From the inception of the Federal Coal 

Mine Health and Safety Act of 1969 to the date of the 

subject violation, the operator's total history of paid 

violations was 872 (see Exhibit "C"). This is an average 

of approximately 116 violations per year. Of these violations, 24 or approximately 2.7 % were violations of 

30 CFR 75.200. This is not such an amount to indicate 

an habitual disregard for the mandates of the standard 

on the operator's part. 

1117 
Size. 

Unites States Fuel Company operates two mines: King 

Mine (I.D. No. 42-00098) and King No. 5 Mine (I.D. No. 

42-01389). During 1976 and 1977, the King Mine produced 

approximately 614,941 and 882,455 tons of bituminous coal, 

respectively. During those same years, the King No. 5 Mine 

produced no coal and 5,000 tons (see (Exhibit "E"). 

The King Mine has four active sections and employs 

approximately 227 miners. Three production shifts are 

worke.d during a 24-hour period (see Exhibit "F"). 

Settlement Amounts. 

With reference to Order No. 1 LJG, 4/18/77, 30 CFR 

75.400, there was a low probability of an actual fire 

and/or explosion occurring as a result of the violation 

due to the lack of a probable ignition source, the wet 

nature of a majority of the coal and coal fines accumulations and the fact that no methane was determined by 

measurement. 

The settlement of $300.00 represents the second 

highest amount the operator will have paid for a violation of 30 CFR 75.400 cited prior to April 18, 1977, 

the highe~t being for a violation of 30 CFR 75.400 cited 

in conjunction with an imminent danger order (see 

Exhibit "C"). 

With reference to Order No. 2 LJG; 4/18/77, 30 CFR 

75.200, the proposed payment is almost five times as 

much as any payment made for a violation of 30 CFR 75.200. 

There was a lack of due diligence on the operator's part 

in correcting the poor roof conditions, and the chance of 

severe injury or death existed even though the area was 

posted with signs warning of the bad top. A deficiency 

inherent in the Order has also commenced a penalty reduction, namely the failure to describe with particularity 

the nature of the violative condition. 

The above amounts will not affect the operator's 

ability to continue in business. 

The Stipulation of Settlement and Joint Motion to approve Settlement Agreement was signed by the President of Local 6363, UMWA 

District 22 as representative of employees as well as the attorneys 

for both parties. 

1118 
Exhibit "D" submitted on August 14, 1979, consists of a letter 

dated June 22, 1979, from Madison McCulloch, MSHA Director of Assessments, to James L. Abrams; Esq., counsel for MSHA. The letter states, 

in part, as follows: 

This is to advise that on or about January 12, 1978, 

the captioned case was reviewed by the assessment office. 

Because it would have been difficult to establish a valid 

104(c)(l) (now 104(d)(l)) notice to uphold the unwarrantable chain, a recommendation was made by this office to 

accept $300 and $1,200 respectively for violations in 

issue. 

In view of the reasons given above by counsel for the parties 

for the proposed settlement, and in view of the disclosure as to the 

elements constituting the foundation for the statutory criteria, it 

appears that a disposition approving the settlement will adequately 

protect the public interest. 

Of particular significance to the approval of the settlement, is 

the above-noted letter from the MSHA Director of Assessments. 

ORDER 

Accordingly, IT IS ORDERED that the Secretary of Labor's motion 

to amend the caption be, and hereby is, DENIED. 

IT IS FURTHER ORDERED that the Petitioner's motion to amend the 

title of the joint motion and stipulation be, and hereby is, GRANTED. 

IT IS THEREFORE ORDERED that such joint motion be, and hereby is, 

AMENDED to read "Stipulation of Settlement and Joint Motion to 

Approve Settlement Agreement." 

IT IS FURTHER ORDERED that the proposed settlement, as outlined 

above, be, and hereby is, APPROVED. IT IS THEREFORE ORDERED that 

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

agreed-upon penalty of $1,500 assessed in this proceeding. 

ohn F. ~~ Cook 

1119 

\ 
Distribution: 

James Abrams, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Richard H. Nebeker, Esq., Callister, Greene & Nebeker, 

800 Kennecott Building, Salt Lake City, UT 84133 

(Certified Mail) 

Administrator for Coal Mirie Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

1120 
SAfETY ANO t>-H::AlT~ REV~EW COMMiS5mN 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 78-655-P 

A.C. No. 15-02709-02056 V 

Camp No. 1 Mine 

DECISION 

Appearances: Gregory E. Conrad, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Thomas J. Frawley, Esq., Kohn, Shands, Elbert, 

Gianoulakis & Giljum, St. Louis, Missouri, for 

Respondent. 

Before: Judge Cook 

I. Procedural Background 

On August 24, 1978, the Mine Safety and Health Administration 

(MSHA) filed a petition for assessment of civil penalty pursuant to 

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

30 U.S.C § 820(a) (1977), in the above-captioned proceeding. The 

petition alleged violations of 30 CFR 75.200 and 75.400. On 

October 2, 1978, Peabody filed an answer in conjunction with a 

motion to file a later answer, which motion was granted by an order 

dated October 13, 1978. 

By order of October 16, 1978, the above-captioned case was consolidated with Docket Nos. BARB 78-.6, 78-688-P, 78-690-P and 78-613-P 

and a notice of hearing was issued. However, Respondent filed 

a motion on October 25, 1978, wherein it requested that the abovecaptioned case be severed, requesting a separate hearing. This motion 

was granted by an order dated November 6, 1978. 

The hearing commenced on December 12, 1978. Representatives of 

both parties were present and participated. 

1121 
At the conclusion of the hearing, counsel for MSHA and counsel 

for the Respondent agreed that the hearing transcript could be mailed 

by the reporter by January 11, 1979. Counsel further agreed that the 

initial briefs would be filed simultaneously by February 19, 1979. 

On February 12, 1979, Respondent requested additional time until 

March 9, 1979, to file its initial brief. By an order dated 

February 13, 1979, the time for the filing of original posthearing 

briefs and any other proposals by way of findings of fact and 

conclusions of law was extended to March 9, 1979. The time for 

response was extended to March 23, 1979. 

The Petitioner filed its posthearing brief on March 9, 1979. The 

Respondent filed its posthearing brief on March 12, 1979. The Petitioner and the Respondent filed reply briefs on March 23, 1979, and 

March 29, 1979, respectively. 

II. Violations Charged 

Order No. 7-0565 ( 1 MEM), November 21, 1977' 30 CFR 75.400. 

Order No. 7-0563 (1 LWS), November 21, 1977, 30 CFR 75.400. 

Order No. 7-0583 (1 LWS), December 1, 1977, 30 CFR 75.200. 

III. Evidence Contained in the Record 

A. Stipulations 

At the commencement of the hearing, counsel for both parties 

entered into stipulations which are set forth in the findings of fact, 

infra. 

B. Witnesses 

MSHA called as its witnesses Mitchell E. Mills, an MSHA coal mine 

supervising inspector, and Louis w. Stanley, an MSHA inspector. 

Respondent called as its witnesses Brent W. Roberts and Martin T. 

Lovell, safety managers at Respondent's Camp No. 1 Mine, and Jack Dan 

Matheson III, a belt foreman at Respondent's Camp No. 1 Mine. 

c. Exhibits 

1. MSHA introduced the following exhibits into evidence: 

(a) M-1 is computer printout titled "Controller Information 

Report" compiled by the Office of Assessments containing information 

as tp ~he size of the operator. 

1122 
(b) M-2 is a computer printout compiled by the Office of 

Assessments containing the operator's history of violations for which 

assessments had been paid up to December 11 1977. 

(c) M-3 is a map of Respondent's Camp No. 1 Mine. 

(d) M-4 is a copy of Order No. 7-0565 (1 MEM), November 21, 

1977 1 30 CFR 75.400. 

(e) M-5 is a modification of M-4. 

(f) M-6 is an abatement of M-4 and M-5. 

(g) M-8 is the 104(c)(l) order underlying M-4, M-10 and 

M-13. 

(h) M-9 is the 104"(c)(l) notice underlying M-8. 

(i) M-10 is a copy of Order No. 7-0563 (1 LWS), November 21 1 

1977 1 30 CFR 75.400. 

(j) M-11 is a termination of M-10. 

(k) M-13 is a copy of Order No. 7-0583 (1 LWS), December 11 

1977 1 30 CFR 75.200. 

(1) M-14 is a termination of M-13. 

(m) M-16 is a drawing produced by Inspector Louis W. 

Stanley depicting his recollection of the conditions cited in M-13. 

(n) M-17 is a copy of the cleanup program for the Respondent's Camp No. 1 Mine. 

(o) M-19 is an entry from the preshift examiner's report 

for the No. 3 Unit, dated November 25 1 1977. 

(p) M-20 is a preshift examiner's report for the No. 3 

Unit, dated November 27 1 1977 1 10 to 11 p.m. 

(q) M-21 is a preshift examiner's report.for the No. 3 

Unit, dated November 30 1 1977. 

(r) M-22 is a preshift examiner's report for the No. 3 

Unit, dated December 11 1977. 

(s) M-23 is an entry from the belt examiner's book dated 

November 17 1 1977. 

(t) M-24 is an entry from the belt examiner's book dated 

November 18 1 1977. 

1123 
(u) M-25 is an entry from· the belt examiner's book dated 

November 18, 1977. 

(v) M-40 is a copy of the roof control plan for the Camp 

No. 1 Mine, dated August 5, 1977. 

2. Peabody introduced the following exhibits into evidence: 

(a) 0-2 is tr~ belt examiner's book· for the Camp No. 1 Mine, 

beginning with entries for October 6, 1977. 

(b) 0-3 is the preshift examiner's book for the Respondent's Camp No. 1 Mine. 

(c) 0-4 is a copy of the roof control plan for the Camp 

No. 1 Mine, dated April 6, 1976. 

(d) 0-5 is a drawing produced at t4e hearing by Martin T. 

Lovell depicting his recollection of the conditions cited in M-13. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should be 

assessed for a violation, the law requires that six factors be considered: (1) history of previous violations, (2) appropriateness of 

the penalty to the size of the operator's business; (3) whether the 

operator was negligent; (4) effect of the penalty on the operator's 

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

(6) the operator's good faith in attempting rapid abatement of the 

violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

1. The Administrative Law Judge has jurisdiction over the subject matter in this proceeding (Tr. ·7). 

2. Peabody Coal Company and the Camp No. 1 Mine are subject to 

the provisions of the Federal Coal Mine Health and Safety Act of 1969 

(Tr. 7-8). 

3. The subject orders of withdrawal were duly served on an 

agent of the operator (Tr. 8)~ 

4. The assessment of any penalties in this proceeding will not 

affect the ability of Respondent to continue in· business (Tr. 8). 

1124 
5. With respect to each of the alleged violations in this proceeding, Respondent, at a minimum, demonstrated good faith in 

attempting to achieve normal compliance after notification of the 

violations (Tr. 8). 

6. Inspectors Louis W. Stanley and Mitchell E. Mills were duly 

authorized representatives of the Secretary at all times relevant to 

this proceeding (Tr. 8). 

7. Each of the proposed exhibits to be submitted by Petitioner 

and Respondent are authentic documents which were prepared in the 

ordinary course of business by the person or persons designated 

therein by their signature (Tr. 8). 

8. For purposes of assessment of any penalties, Peabody is a 

large operator (Tr. 8). 

9. The Federal Coal Mine Health and Safety Act of 1969 has been 

amended by the Federal Mine Safety and Health Act of 1977 (Tr. 9). 

10. The Respondent is subject to the Federal Mine Safety and 

Health Act of 1977 (Tr. 9). 

11. November 21, 1977, was a Monday (Tr. 77-78). 

12. Inspector Stanley's order of November 21, 1977 (Exh. M-10), 

gives sufficient notice of the alleged accumulation cited therein 

(Tr. 175). 

13. Peabody Holding Company, Inc., became the controller of 

Peabody Coal Company, effective June 30, 1977 (Tr. 510-511). 

B. Occurrence, Gravity, Negligence, and Good Faith 

1. Order No. 7-0565 (1 MEM), November 21, 1977, 30 CFR 75.400 

(a) Occurrence of Violation 

On Monday, November 21, 1977, MSHA supervisory inspector 

Mitchell E. Mills visited the Respondent's Camp No. 1 Mine. He 

arrived at 6:15 a.m. (Tr. 20-23). Inspector Mills noted that he 

was accompanying MSHA inspector Louis W. Stanley on a supervisory 

inspection and also because of information he had received regarding a problem with "dirty belts" at the Camp No. 1 Mine (Tr. 20-22, 

115). While on the surface, Inspector Mills consulted with management personnel and persons from the United Mine Workers of 

Americia, while Inspector Stanfey examined the preshift reports and 

the belt examiner's reports (Tr. 23, 50-51). Inspector Mills' 

knowledge of the information contained in those reports was acquired 

from Inspector Stanley (Tr. 50-51, 147-150). · 

1125 
Upon arriving underground, each inspector proceeded to a different area of the mine to begin his inspection. Inspector Mills 

inspected the area of the Third Main South belt, also called the 

Second South piggy-back belt (Tr. 239-240, 317). Ken liazelwood and 

Brent Roberts accompanied him on the inspection tour (Tr. 29-30). 

He commenced his· inspection at the tailpiece and ended his inspection at the header, walking the entire 3,500-foot length of the 

belt (Tr. 25, 73). The No. 7 Unit was moving, but the belt was 

not in operation and no coal production was occurring inby either 

the tailpiece or the header (Tr. 74-76, 98, 133~134, 240-243). 

He observed readily noticeable accumulations of combustible material at two locations along the belt (Tr. 38, 44-45, 107). He measured 

the length and depth of the accumulations with a steel rule, with the 

assistance of either Mr. Hazelwood or Mr. Roberts (Tr. 45-46). 

The first accumulation was observed at the old No. 7 Unit belt 

drive (Tr. 38, Exh. M-4, Point Eon Exh. M-3). It consisted of loose 

coal and coal dust 16 to 24 inches in depth and 60 feet in length. He 

recalled from memory that it was 10 to 12 feet wide (Tr. 44, 74, 124). 

The depth of the accumulation indicated to the inspector that it had 

existed for approximately two shifts (Tr. 96). 

The second accumulation was located in the middle of an intersection, one crosscut outby No. 3 Unit's intake overcast (Tr. 25-26, 89, 

Exh. M-4, Point Con Exh. M-3). The accumulation was 20 inches in 

depth and 20 feet in length. He recalled from memory that it was 

approximately 2 feet wide (Tr. 45, 74, 125, Exh. M-4). It consisted 

of approximately 80 percent coal, both fine and lump, and 20 percent 

rock (Tr. 45, 86-87, 114-115, 11&). The inspector estimated that 

the accumulation had existed for approximately 2 weeks (Tr. 60, 96). 

The inspector's opinion as to both the cause of the accumulation and 

the duration of its existence was based upon a common set of observations. He testified that the belt had been running out of alignment 

as the result of a rock fall (Tr. 40-48). Thus, the top belt had been 

running to the right and the bottom belt had been running to the left. 

The top belt had been rubbing against the upright belt stand, while 

the bottom belt had been rubbing the rock and the coal (Tr. 87-88). 

The to-p belt was worn from rubbing against the stand, and, in fact, 

had rubbed halfway through a 2-inch· pipe that was part of the belt 

stand. The bottom belt had rubbed through a piece of coal or rock. 

The belt was dragging the bottom and the bottom rollers were buried. 

It was the inspector's opinion that it would have required approximately 2 weeks for these conditions to develop (Tr. 57-60, 87-88, 

99). Misalignment of the belt and slippage caused the spillage 

·(Tr. 40-48, 62-63). This interpretation of inferences drawn from 

the facts was based on the inspector's experience in deal{ng 

with belts (Tr. 123). 

1126 
Inspector Mills testified that he specifically asked Messrs. 

Hazelwood and Roberts if they thought the accumulations of coal 

were excessive) and that one or both of them responded in the 

affirmative (Tr. 43-44). 

Inspector Mills identified Exhibit M-17 as containing the · '''!anup 

program in effect. at the Respondent's Camp No. 1 Mine on November 21) 

1977. The cleanup program) dated February 25) 1972) states: 

The places are cleaned by 14BU10-llBE loading 

machine • 

. The ribs are hand shovelled. 

The float dust and coal spillage is shovelled by hand 

on all belt haulage. 

This work is being done by both coal run shifts. 

Inspector Mills discussed the Respondent's cleanup program (Exh. 

M-17) at two points in his testimony. During direct examination) he 

testified that his observations caused him to conclude that the 

cleanup plan (Exh. M-17) was not being followed) especially with 

regard to the accumulation located one crosscut outby the No. 3 Unit 

overcast. He testified that the plan requires float dust and coal 

spillage to be shoveled by hand on all belt haulage during the coal 

run shifts (Tr. 61-62). The inspector set forth a more detailed 

interpretation of the cleanup plan during the course of examination 

by the Judge. He testified that the plan mandates daily inspection 

and reporting) in addition to systematic daily cleaning so that the 

belt remains clean at all times (Tr. 126-127). 

The inspector had no actual knowledge of whether cleaning had 

occurred in the area of the No. 3 Unit.intake overcast on November 17) 

1977) or November 18) 1977 (Tr. 83-84). He never asked anyone whether 

any cleaning had been done i11 the area (Tr. 120). He did not recall 

discussing with either Mr. Roberts or Mr. Hazelwood their plans for 

cleaning the belt (Tr. 122). In addition) he did not ask anyone at 

the :mine whether they intended to start the belt prior to cleanup 

(Tr. 122). 

Inspector Mills issued the subject 104(c)(2) order of withdrawal 

at 10:30 a.m., November 21) 1977 (Exh. M-4)) citing the Respondent for 

a violation of the mandatory safety standard set forth in 30 CFR 

75.400. This section of the Code of Federal Regulations states the 

following: "Coal dust, including float coal dust "deposited on rockdusted surfaces, loose coal and other combustible materials, shall 

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

or upon electric equipment therein." 

30 CFR 75 .2(g)( 4) defines "active workings" as "any place in a 

coal mine where miners are normall)'.' required to work or travel." 

1127 
In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 qsHD 

par. 22,088 (1977), motion for reconsideration denied, 8 IBMA 196, 

1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations 

Appeals (Board) held that the presence of a deposit or accumulation 

of coal dust on other combustible materials in active workings 

of a coal mine is not, by itself, a violation. The Board held 

that MSHA's prima facie case consists of the following three 

elements: 

1. that an accumulation of combustible material existed 

in the active workings, or on electrical equipment in 

active workings, of a coal mine; 

2. that the coal mine operator was aware; or, by the 

exercise of due diligence and concern for the safety 

of the miners, should have been aware of the existence 

of such accumulation; and 

3. that the operator failed to clean up such accumulation, 

or failed to undertake to clean it up, within a reasonable time after discovery, o~ within a reasonable time 

after discovery should have been made. 

8 IBMA at 114-115. 

There can be no doubt that accumulations of combustible materials existed in the active workings of the Respondent's Camp No. 1 

Mine at the two above-described locations along the Third Main South 

belt. Accordingly, it is found that MSHA has established the first 

element of its prima facie case. 1_/ 

1/ BotW with respect to order No. 1 MEM and order No. 1 LWS, Respondent asserts that Old Ben requires MSHA inspectors to "inquire of 

Respondent's employees concerning the accumulations and their cleanup 

efforts" (Respondent's Posthearing Brief, pp. 19-21, 27-28). Respondent argues that the finding of a violation of 30 CFR 75.400 is dependent upon the inspector determining, prior to issuing a withdrawal 

order, when an accumulation should have been discovered and the nature 

of the operator's cleanup efforts (Responde~t's Posthearing Brief, 

p. 21). However, the Old Ben case does not require the inspector 

to direct specific inquiries to the operator's employees in all cases. 

The Board's Old Ben opinion merely requires the inspector to make a 

sound judgment as to how long the accumulation existed and whether the 

operator took an unreasonable amount of time in getting around to 

to cleaning up the accumulation. This can be accomplished through 

"the use of logical conclusions drawn from circumstantial evidence." 

8 IBMA at 113. As the record in the present case reveals sufficient 

evidence from which the inspectors could reach conclusions as to both 

the duration of the accumulations' existence and the reasonable time 

for cleanup, it was unnecessary to direct specific inquiries to the 

Respondent's employees. 

1128 
The second element of MSHA's prima facie case, the requirement 

that the operator have actual or constructive knowledge of the existence of the combustible accumulations, has generated some controversy among the parties, as evidenced through their ·posthearing 

submissions. According to MSHA, the Old Ben decision addresses 

itself to two distinct types of accumulations: "usual" and "unusual." 

MSHA argues that· depending upon the type of accumulation present in 

a given case, the operator's responsibilities and the legal prerequisites for MSHA's establishment of a prima·facie case differ 

radically. MSHA takes the position that it must set forth affirmative evidence as to all three elements of its prima facie case only 

where the accumulations are "unusual 11 in nature·. However, where 

"usual" accumulations of combustible materials have resulted from 

the ordinary course of the operator's mining activities, MSHA argues 

that "the Board appears to infer" that no knowledge requirement is 

present since it is "assumed" that the operator is aware of these 

inevitable accumulations. In such cases, MSHA argues that it satisfies its burden under Old Ben when it proves that the operator was 

not maintaining its regular cleanup program or that the cleanup program was deficient in that combustible materials were being permitted to accumulate without adequate attention to their cleanup 

(Petitioner's Posthearing Brief, pp. 3-4). 

The Respondent takes vigorous issue with MSHA's assertions 

(Respondent's Reply Brief, pp. 1-2). 

I disagree with MSHA's interpretation of Old Ben. The fact that 

an accumulation is "usual" or "unusual" does not alter MSHA's burden 

of going forward with the evidence. This is so because although the 

Board discussed both "usual" and "unusual" accumulations in its decision, it di.d not distinguish between them when it set forth the elements of MSHA's prima facie,case. The fact that the three elements 

are described as "the precise elements of proof required under * * * 

30 CFR 75 .400 to make out a prima facie case * * *" further indicates 

that no such distinction was intended. ~/ 

In effect', MSHA argues that a presumption exists that the operator knew or should have known of the accumulation's existence once it 

has been established that the accumulation accrued during the ordinary 

co~rse of the operator's mining activities, and that the operator's 

2/ The question of whether an accumulation is "usual" or "unusual" 

has greatest significance with respect to the issue of whether the 

operator failed to clean up such accumulation, or failed to undertake to clean it up, within a reasonable time after discovery, or 

within a reasonable time after· discovery should have been made, as 

set forth in both the Board's decision of August 17, 1977, and its 

subsequent memorandum opinion and order denying the Government's 

motion for reconsideration. 8 IBMA 109-111; 8 IBMA 198. 

1129 
regular cleanup program was not being followed or was deficient in 

some respect. However, the Board in Old Ben did not specifically set 

forth such a presumption. 

Although the Board did indicate that "[p]roof of the absence of 

[a regular cleanup] program, together with the presence of any accumulation might well alone support a citation for violation of Section 304(a)," Old Ben Coal Company, 8 IBMA 196, 198, 1977-1978 OSHD 

par. 22,328 (1977), Opinion and Order Denying Motion for Reconsideration of Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 

OSHD par. 22,088 (1977) (emphasis in original), this statement does 

not strengthen the Petitioner's position in the case at bar. The 

statement merely indicates that the operator might be held strictly 

liable if he fails to maintain a regular cleanup program. In the 

case at bar, the Respondent had a regular cleanup program (Exh. M-17). 

Although Inspector Mills stated that the plan was not being followed 

(Tr. 61), the Respondent took a position refuting this characterization by arguing that the Respondent was confronted with unusual circumstances in its efforts to clean the Third Main South belt 

(Respondent's Reply Brief, pp. 2-3). It cannot be found that the 

Board intended to impose a strict liability standard where the operator maintains a regular cleanup program, especially where the parties 

have raised a genuine issue of material fact with respect to whether 

the plan was being followed. 

For the reasons set forth below, I find that the Respondent knew 

or should have known of the existence of the combustible accumulations at the two locations along the Third Main South belt. 

A substantial dispute has arisen between the parties with 

respect to .the knowledge issue, particularly as regards the accumulation located in the intersection one crosscut outby the No. 3 Unit 

intake overcast. The Petitioner relies most heavily on the inspector's estimate that the condition existed for approximately 2 weeks 

in arguing that the Respondent both knew of the existence of the accumulation and failed to undertake cleanup procedures within a reasonable time after he knew or should have known of their existence. 

The Respondent disagrees, relying upon its belt examiner's reports 

(Exh. 0-2) to argue that the accumulations observed in the·area of 

the No. 3 Unit overcast were systematically removed promptly upon 

discovery. 

I find the evidence adduced.by the Respondent sufficient to 

rebut the inspector's estimate that the accumulation had existed 

for approximately 2 weeks. 

The inspector testified that running the belt while it was out of 

alignment was a partial cause of the accumulation (Tr. 48, 62-63). 

The belt had been knocked out of alignment by a roof fall occurring 

one crosscut outby the No. 3 Unit's intake overcast, i.e., the roof 

fall had occurred in the same location where the inspector observed 

1130 
the accumulation (Tr. 40-41, 45). The fall had pushed the belt 

approximately 18 inches out of alignment (Tr. 65) causing it to rub 

both the belt stand and the coal (Tr. 57-58, 60). According to the 

inspector, either the area had not been cleaned after the fall or 

another fall had occurred (Tr. 45). He estimated that the accumulation cited in the order of withdrawal had existed for approximately 

2 weeks, noting that 2 weeks would have been required for the belt 

stand to develop the amount of wear observed, and also to "make all 

of the belt cut on the opposite side and to wear the rubber off" 

(Tr. 60) (see also, Tr. 57-58). 

Mr. Brent Roberts, the safety manager of the mine, was aware 

that damage had been suffered by the Third Mairr South belt as the 

result of a rock fall somewhere in the area of the No. 3 intake 

overcast (Tr. 301). Although he had no idea as to when the roof 

fall had occurred, he indicated that it had to have been quite a 

while before November 21, 1977 (Tr. 301). He indicated that the area 

had been cleaned after the fall, but that apparently more rock had 

fallen in, either as the result of a second roof fall or as the 

result of rock sliding into the side of the belt (Tr •. 301). However. 

he did not know the date of the second occurrence (Tr. 301-302). 

Additionally, the inspector testified that the operator was aware 

of the existence of these accumulations because of entries in the preshift examiner's books (Tr. 50-51). At the Camp No. 1 Mine, the operator has both a preshift examiner who makes the active coal production 

units and a belt examiner who makes the belt on each coal production 

shift (Tr. 51). The belt examiner makes entries in a belt examiner's 

book located outside the mine (Tr. 51). According to the inspector, 

the accumulations were noticeable, and anyone making an adequate pr~­

shift examination in the area would have noticed them (Tr. 107-108). 

Although there are substantial indications that the information 

relayed to Inspector Mills by Inspector Stanley as to entries contained in the belt examiner's book pertained to the Second Main South 

belt, and not to the Third Main South belt (Respondent's Posthearing 

Brief, pp. 20-21), the error has no bearing on the operator's actual 

or constructive knowledge of the accumulations' presence. The belt 

examiner's book (Exh. 0-2) indicates that the Respondent was aware of 

spil~ages in the area of the No. 3 overcast. The belt examiner's 

reports for each of the following days and shifts indicate a problem 

with coal spillage in the area of the No. 3 overcast: second shift, 

November 17, 1977 (Exh. 0-2, Tr. 80, 252-253, 329); second shift, 

November 18, 1977 (Exh. 0-2, Tr. 84, 252, 327-328); second shift, 

November 19, 1977 (Exh. 0-2, Tr. 251-252). Although, as a result of 

the information contained in Exhibit 0-2, the Respondent assigned men 

to clean the area on the November 18, 1977, and November 19, 1977, day 

shifts (Tr. 328-329), there is no indication that cleanup personnel 

were assigned to the area on the November 19, 1977, second shift. 

1131 
The foregoing evidence is sufficient to rebut the inspector's 

opinion that the accumulation in the area of the No. 3 overcast had 

existed for 2 weeks. There is no indication that he asked any 

of the operator's employees when the roof fall had occurred, even 

though his testimony reveals two possible reasons for the accumulation's presence, i.e., either the area had not been cleaned or 

another fall had occurred (Tr. 45). In fact, he never asked anyone 

whether any cleaning had been done by the Respondent prior to 

issuing the order (Tr. 120). The fact that Mr. Roberts stated that 

the area had been cleaned after the first roof fall and that another 

roof fall or rock slide had occurred in the area, coupled with the 

fact that the Respondent had cleaned in the area of the No. 3 overcast during the week prior to the issuance of the order, indicates 

that MSHA has failed to establish by a preponderance of the evidence 

that the accumulation had existed for 2 weeks. It is, however, sufficient to establish by a preponderance of the evidence that the belt 

had been running out of alignment for approximately 2 weeks. 

However, this does not end the inquiry, because an entry made 

in the belt examiner's book for the November 19, 1977, second shift 

(Exh. 0-2,Tr. 251-252), is sufficient to charge the Respondent with 

knowledge of the presence of a combustible accumulation near the 

No. 3 overcast. In this instance, the accumulation was 20 inches 

deep for a distance of 20 feet, but the most serious part of the 

accumulation related to the belt dragging in coal and rock and the 

rollers so deeply buried that they could not be seen (Tr. 71, 87-88, 

98-99). The extent and nature of the accumulations show that the 

serious portion had to exist for more than one shift and also that 

the belt examiner did not report in the book the extreme seriousness 

of the accumulation. Knowledge of the belt examiner should be chargeable to the Respondent under the principles set forth in Pocahontas 

Fuel Company, 8 IBMA 136, 84 I.D. 488, 1977-1978 OSHD par. 22,218 

(1977), aff'd sub nom. Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 

(4th Cir. 1979). Furthermore, the Respondent, in its posthearing 

brief, acknowledges its awar~ness of this accumulation cited by the 

inspector (Respondent's Posthearing Brief, pp. 17-18). 

The Respondent argues that it should not have been aware of the 

accumulation located at the old No. 7 Unit header. An individual was 

regularly assigned to clean this area (Tr. 319). According to Respondent, it should not have been aware of the accumulat'ion because when 

the belt supervisor examined Exhibit 0-2 at the beginning of the day 

shift on November 21, 1977, he believed that the individual assigned 

to the No. 7 Unit was stili stationed at the old No. 7 header location. Although the belt supervisor knew that the No. 7 Unit was moving, he understood that this individual would remain responsible for 

the old No. 7 header location even after the unit moved because of 

its proximity to the tailpiece of the Third Main South belt, at which 

point No. 7 Unit's new belt would empty and for which he was already 

responsible (Tr. 318, 323) (Respondent's Posthearing Brief, p. 17). 

1132 
I disagree. The fact that the need for cleaning at the Old No. 7 

Unit header had been noted on the day and second shift reports for 

November 19, 1977 (Exh. 0-2, Tr. 316), is sufficient to charge the 

Respondent with knowledge of the accumulation's presence. The 

inspector's estimate that the accumulation had existed for approximately two shifts is thus confirmed by the entries in Exhibit 0-2 

(Tr. 96). 

The final element of MSHA's prima facie case is whether the operator failed to clean up the accumulations, or failed to undertake to 

clean them up, within a reasonable time after discovery, or within a 

reasonable time after discovery should have be~n made. 

As to the issue of "reasonable time," the Board in Old Ben 

stated: 

As mentioned in our discussion of the responsibilities 

imposed upon the coal mine operators, what constitutes a 

"reasonable time" must be determined on a case-by-case 

evaluation of the urgency in terms of likelihood of the 

accumulation to contribute to a mine fire or to propagate 

an explosion. This evaluation may well depend upon such 

factors as the mass, extent, combustibility, and volatility 

of the accumulation as well as its proximity to an ignition source. 

8 IBMA at 115. 

The Board further stated: 

With respect to the small, but inevitable aggregations 

of combustible materials that accompany the ordinary, routine or normal mining operation, it is our view that the 

maintenance of a regular cleanup program, which would incorporate from one cleanup after two or three production 

shifts to several cleanups per production shift, depending 

upon the volume of production involved, might well satisfy 

the requirements of the standard. On the other hand, where 

an operator encounters roof falls, or other out-of-the-ordinary spills, we believe the operator is obliged to clean up 

the combustibles promptly upon discovery. Prompt cleanup 

response to the unusual occurrences of excessive accumulations of combustibles in a coal mine may well be one of the 

most crucial of all the obligations imposed by the Act upon 

a coal mine operator to protect the safety of the miners. 

8 IBMA at 111. 

1133 
A question is presented as to whether the two accumulations cited 

by Inspector Mills are the "small, but inevitable aggregations of combustible materials that accompany tbe ordinary, routine or normal mining operation," or whether they are "unusual occurrences of excessive 

accumulations." In the former case, the Respondent -discharges its 

duty through the maintenance of and adherence to a regula~ cleanup 

program incorporating from one cleanup after two or three production 

shifts to several cleanups per production shift, depending upon the 

volume of product.ion involved. In the latter case, the Respondent is 

required to undertake effective cleanup procedures promptly upon discovery of the accumulations. 

For the reasons set forth below, I conclude that part of the 

accumulations cited by Inspector Mills in his order of withdrawal 

were excessive accumulations requiring a prompt cleanup response 

by the operator within the meaning of Old Ben. As such, the Respondent was required to implement cleanup procedures outside the 

requirements of its regular cleanup program. As relates to the 

other part of the accumlations, it is evident -that the regular 

cleanup program was not followed. 

The Respondent seeks to avoid a finding that a violation occurred by arguing that it was confronted with "unusual circumstances" 

in its efforts to clean the Third Main South belt (Respondent's 

Reply Brief, pp. 2-3). I disagree. The problems experienced by the 

Respondent could have been remedied by simply realigning the belt. 

The inspector testified that the accumulations occurred as a 

result of both running the belt while it was out of alignment and 

because of slippage (Tr. 48, 62-63). 

The alignment and slippage problems were directly attributable 

to the roof fall that occurred along the Third Main South belt line 

approximately 2 weeks prior to the issuance of the order. The available evidence, such as the excessive wear on the belt stand, indicates 

that the belt had not been realigned after the fall. In addition, the 

alignment problem was aggravated by events occurring on both the No. 3 

and No. 6 Units on or around November 14, 1977, approximately 7 days 

prior to the issuance of the order. According to Jack Dan 

Matheson III, the belt foreman at the Camp No. 1 Mine, a fall occurred on the No. 6 Unit and the No. 3 Unit was loading rock (Tr. 338). 

The Third Main South belt was involved in transporting the material 

outside of the mine (Tr. 338, 344). As the transporting of large 

rocks on the belt is, in itself, sufficient to "knock" the rollers 

and cause an alignment problem (Tr. 339-340), it can be inferred 

that the activities on or around November 14, 1977, aggravated the 

existing alignment problem on _the Third Main South belt. Although 

1134 
it may be unusual for two units to·be running rock onto the belt 

simultaneously (Tr. 376), this fact does not provide sufficient justification for failure to implement prompt cleanup., especially when 

such activities a~gravate a preexisting alignment problem. 

The fact that the roof falls which caused or aggravated the 

alignment problem had been cleaned up is of no assistance to the 

Respondent. Although those occurrences were removed in time or distance from accumulations observed on November 21, 1977, the accumulations still remained outside the scope of Respo.ndent' s regular 

cleanup program. Failure to correct the alignment and slippage 

problems resulted in the presence of such extensive accumulations 

of combustible materials in the mine's active workings that they 

cannot be deemed "the small, but inevitable aggregations of combustible materials that accompany the ordinary, routine or normal mining 

operation." 8 IBMA at lll. As long as the Respondent permitted the 

alignment and slippage problems to persist, it was bound to remove 

the voluminous accumulations promptly upon discovery, subject, of 

course, to the proviso that cleanup occur within 1 a reasonable time. 

Respondent submits that a violation of 30 CFR 75.400 cannot be 

found as regards the accumulation located in the intersection located 

one crosscut outby the No. 3 Unit's intake overcast because it was 

in the process of alleviating the allegedly violative condition at 

the time the withdrawal order was issued (Respondent's Posthearing 

Brief, p. 18; Respondent's Reply Brief, p. 5). The belt was not 

operating and there was no coal production. Jack Matheson testified 

that he had assigned two men to clean the area on November 21, 1977, 

because it had been cited in Exhibit 0-2 on the second shift of 

November 19, 1977 (Tr. 333-334), and that he intended to keep the 

Third Main South belt shut off until the area had been cleaned 

(Tr. 331). In fact, Mr. Matheson went to the header of the Third 

Main South belt to insure that the belt was not in operation 

(Tr. 330-331, Respondent's Posthearing Brief, p. 18; Respondent's 

Reply Brief, p. 5). 

However, the fact that the Respondent was in the process of 

removing the accumulations at the time the withdrawal order was 

issued is not dispositive of the question of whether it had permitted the accumulations to exist by failing to commence cleanup 

procedures within a reasonable time after discovery. The Respondent's theory, when carried to its logical conclusion, would preclude the finding of a violation where it could be established that 

a dangerous accumulation of combustibles had existed for a month, 

as long as the operator was in the process of removing them at the 

moment the order of withdrawal issued. Such a position is patently 

erroneous because it conveniently overlooks the clear mandate of 

Old Ben that "cleanup should be accomplished within a reasonable 

time after discovery." 8 IBMA at 110. 

1135 
. In support of its position, Respondent cites the Board's decision 

in Zeigler Coal Company, 3 IBMA 366, 81 I.D. 598, 1974-1975 OSHD par. 

18,675 (1974). In Zeigler, a notice of violation was issued for oil 

and grease accumulations on a coal drill. The drill had been taken 

out of service and was being cleaned at the time the violation was 

cited. In holding that no violation was present since the equipment 

was out of service and being cleaned at the time of the inspection 

and prior to the issuance of the notice, the Board observed that such 

facts warranted the inference that the operator intended to clean the 

equipment before it reentered service. 

The .circumstances of that case do not apply t:,, the facts in the 

instant case. The principles of the later Old Ben decision, reviewed 

above, must be applied to the instant case. There is no indication 

that the coal drill involved in Zeigler had been in use for an unreasonable period of time after the accumulation was or should have been 

discovered by the operator. In the instant case, the evidence is to 

the contrary as relates to the operation of the belt in question. 

The Old Ben case is instructive as to the type of corrective 

action the Respondent should have taken. After setting forth the 

elements of MSHA's prima facie case, the Board proceeded to apply 

the test to the facts presented. According to the Board: 

The operator's witnesses provided the only evidence 

explaining how and when the combustible materials had 

accumulated and what and when corrective action was 

taken. Mr. Steve Rowland, a graduate mining engineer, 

and a production foreman of Mine No. 24 for Old Ben, testified that the accumulations occurred during the shift 

preceding the morning shift of July 13, when the inspection took place, and that they were caused by a belt 

separation (Tr. 154); that there had been alignment and 

and tension problems with the belt.(Tr. 157) and that the 

mine manager sent men to restore tension to the belt and 

realign it to prevent continued spillage, which was done 

(Tr. 158); that also, on the morning of the inspection, 

after checking the preshift examination reports, inspecting the beltline, and making the face areas, he immediately 

assigned the bobcat and shuttle car operators to shovel 

the side dumps along the belt (Tr. 156); and that the 

mine manager had told him that two belt shovelers had 

been sent to the 8th south belt in response to the preshift examination report which showed the belt dirty on 

the just-concluded shift (Tr. 156). Mr. Yattoni verified this by his testimony that he observed the two belt 

sh·ovelers beginning their work at 185 station along die 

beltline as he walked in with the inspector (Tr. 114). 

[Emphasis added.] 

8 IBMA at 117. 

1136 
The pertinent language in the above-quoted passage reveals that 

the operator was not only in the process of removing the accumulations within a reasonable time after it knew or should have known 

of their existe~ce, but also alleviating the cause o~ the spillage, 

i.e., the belt separation, tension and alignment problems. There is 

no-indication in the present case that Mr. Matheson had instructed 

his men to correct the cause of the spillage through alleviating 

the slippage and alignment problems. Accordingly, there is no basis 

for an inference that Respondent would have implemented proper corrective action prior to starting the Third Main South belt. 

The fact that the belt was not in operation on the morning of 

November 21, 1977, does not control the outcome of the case. Old Ben 

states that "reasonable time" must be determined by evaluating 

"urgency in terms of likelihood of the accumulation to contribute to 

a mine fire or to propagate an explosion." 8 IBMA at 115. Such factors as "mass, extent, combustibility, and volatility of the accumulation as well as its proximity to an ignition source" are relevant 

to this evaluation. 8 IBMA at 115. Accordingly, it is proper to 

look to the conditions that existed at the time the operator acquired 

knowledge of the accumulation's presence in determining whether 

it undertook cleanup procedures within a reasonable time. 

The mass, extent and physical characteristics of the accumulation 

near the No. 3 Unit intake overcast are set forth above. It is 

unnecessary to repeat them. They are hereby found to be of sufficient 

mass, extent and combustibility to contribute to a mine fire or propagate an explosion. The remaining question is whether they were in 

sufficient proximity to an ignition source. 

The accumulation either was observed or should have been observed 

by a belt examiner during the second shift on Saturday, November 19, 

1977 (Exh. 0-2, Tr. 251-252). The shift started at 4 p.m. and ended 

at midnight (Tr. 245). The testimony of Mr. Brent Roberts is sufficient to establish that it is more probable than not that the belt 

examiner observed the condition between 4 and 8 p.m. (Tr. 252). In 

fact, the law requires the belt examination to be made as soon as the 

coal production shift starts (Tr. 150). 30 CFR 75.303. According to 

Mr. Roberts, it would be safe to assume that the belt was running on 

November 19, 1977, because entries in the belt examiner's book are 

made only during those time periods when the belt is running (Tr. 266). 

This is confirmed by Mr. Matheson's assertion that the belt examiner 

makes his examination of the belts during the coal production shift 

or during a shift on which the belts are running (Tr. 314). 

Inspector Mills identified the potential hazard involved as a 

mine Hre (Tr. 70), and stated that there was a good possibility 

that· a fire could occur (Tr. 71). According to the inspector, 

heat-producing friction is caused both by the belt dragging in 

1137 
coal and rock and by the belt rubbing the stand (Tr. 71). In fact, 

he made the point quite graphically by stating: "When a belt rubs 

a stand this long, its got to get hot. You'll find when they rub 

this long, sometimes they're so hot you can't touch them, even 

rollers that catch fire" (Tr. 71). The belt rollers were buried 

(Tr. 98-99). His opinion was based on 25 years' experience gained 

as a mine foreman (Tr. 19, 98). 

The testimony of Respondent's witnesses confirms the inspector's 

assertions. According to Mr. Lovell, a belt running in coal is an 

ignition source (Tr. 425). Mr. Roberts' testimony on crossexamination reveals that a fire could have been caused by operating the belt 

before the· accumulations were cleaned up (Tr. 279). Mr. Matheson's 

testimony on cross-examination reveals that if the accumulation had 

not b~en cleaned up, a ~elt fire could have occurred (Tr. 397). 

The belt examiner is required to record his findings shortly 

after completion of his examination (Tr. 150-151). The Respondent's 

belt examiners recorded their entries toward the end of the shift 

(Tr. 316). The actual or constructive knowledge of an individual 

assigned by the operator to perform required examinations is imputed 

to th:~ operator. Pocahontas Fuel Company, supra. 

Accordingly, it is found that at the time the belt examiner 

observed the accumulation, it was in sufficient proximity to an ignition source to warrant prompt cleanup, and that this knowledge was 

imputed to the operator. 

It is further found that the operator failed to implement cleanup 

procedures within a reasonable time in that it failed to implement 

cleanup until the next production shift, i:.·~·· on the morning of 

November 21, 1977. 

As relates to the accumulation at the old No. 7 Unit header 

(Point E on Exh. M-3), it is ·found that they were of sufficient mass, 

extent and combustibility to contribute to a mine fire. The accumulation was noted on the November 19, 1977, day and second shifts 

(Exh. 0-2, Tr. 316). The testimony of Mr. Matheson establishes that 

an individual was assigned regular cleanup duties at the old No. 7 

header, and that Mr. Matheson expected him to clean the area even 

though the No. 7 Unit was moving. However, Mr. Matheson had no 

actual knowledge as to whether this individual actually had cleaned 

the area during the time in question (Tr. 319-324, 386). According to 

Inspector Mills, assuming that the belt had been activated prior to 

cleanup, the buried coal and friction would have provided an ignition 

1138 
source (Tr. 111-112). The accumulation should have been cleaned up 

during either the day or second shift on Saturday, November 19, 1977, 

to comply with the regular cleanup program. The Respondent's belt 

foreman stated that absenteeism on Saturday evenings_(second shift) 

is about 30 percent. However this does not relieve the Respondent 

from its responsibility. In accordance with the rationale set forth 

above, it is found that the Respondent failed to undertake cleanup 

within a reasonable time after discovery of the accumulations. 

Accordingly, it is found that MSHA has established a violation of 

30 CFR 75.400 by a preponderance of the evidence. 

(b) Gravity of the Violation 

The potential hazard involved was a mine fire (Tr. 70). There 

was a good possibility of a fire occurring (Tr. 71). Although the 

belt was neither running nor hot at the time the order was issued 

(Tr. 74, 87), it had been in operation on November 19, 1977, i.e., 

prior to commencement of cleanup. The belt was made of fire---

resistant material, water lines ran parallel to it, and a fire 

sensor was in the area (Tr. 102, 249-250). There was no methane in 

the area (Tr. 103). The length of the belt was pretty well rock 

dusted (Tr. 103, 248). There was some rock dust atop the accumulation on the return side near the No. 3 overcast, but there was 

no rock dust atop the accumulation under the belt (Tr. 118). There 

was an available escapeway (Tr. 104). 

The inspector associated a severe degree of gravity with the 

violation (Tr. 107). He identified approximately 25 people on the 

No. 7 unit as being exposed to the hazard, in addition to some belt 

cleaners and ventilation men (Tr. 72). A belt fire could have 

trapped them (Tr. 72). 

Accordingly, it is found that the violation was serious. 

(c) Negligence of the Operator 

As set forth above, the operator was aware of the alignment and 

slippage problems that caused the spillages. Respondent permitted 

the alignment problem to persist for 2 weeks, although it required 

only 2 hours to correct (Tr. 65). Exhibit 0-2 establishes that 

Respondent acquired knowledge of the accumulations on November 19, 

1977, and the inspector testified that the operator was aware of the 

accumulations' existence (Tr. 50). He indicated that a person making a proper preshift or onshift examination would have observed the 

1139 
accumulations due to the following factors: The coal spillage in 

itself; the belt out of alignment; the dragging of the belt on the 

bottom without being on the bottom roller; and the. rubbing of the 

stand (Tr. 58). 

Accordingly,. it is found that the Respondent demonstrated greater 

than ordinary, but somewhat less than gross negligence. 

2. Order No. 7-0563 (1 LWS), November 21, 1977, 30 CFR 75.400 

(a) Occurrence of Violation 

MSHA inspector Louis W. Stanley conducted a spot inspection at 

the Respondent's Camp No. 1 Mine on November 21, 1977 (Tr. 160). 

While on the surface, he examined the fire boss' records and the 

belt examiner's records (Exhs. 0-2, 0-3, Tr. 161). Entries in the 

belt examiner's book (Exh. 0-2) made between November 17, 1977, and 

November 19, 1977, recorded accumulations along the Second Main South 

belt (Tr. 185-187). He was familiar with the system of reporting · 

employed at the mine (Tr. 185). After relaying some of the information gleaned from the records to Inspector Mills (Tr. 188), he proceeded underground and inspected the Second Main South belt. The 

belt is approximately 4,500 feet long (Tr. 198). He was accompanied 

on the inspection by Mr. Martin T. Lovell, the safety manager at the 

Respondent's Camp No. 1 Mine (Tr. 161-162). Mr. Lovell accompanied 

him as far as the No. 31 crosscut (Tr. 412). Mr. Jack Dan 

Matheson III, the belt foreman, accompanied the inspector from 

the No. 31 crosscut inby for a distance of 15-20 crosscuts 

(Tr. 342-343). 

An accumulation of loose coal was observed extending from the 

No. 7 crosscut inby to the No. 11 crosscut, a distance of approximately 280 feet (Tr. 177, Exh. M-10). It measured 4 to 8 inches in 

depth, and 3 feet in width (Tr. 177, Exh. M-10). Rock dust was 

observed atop the coal (Exh. M-10). 

An accumulation of loose coal was observed extending from the 

No. 14 crosscut inby to the No. 19 crosscut for a distance of 

300 feet (Tr. 178, Exh. M-10). It measured 16 inches in depth and 

2 feet in width (Tr. 178, Exh. M-10). The belt was rubbing coal and 

stuck rollers were found a·t the No. 18 crosscut (Tr. 178). The accumulation was only on the backside of the belt (Tr. 198). 

An accumulation of loose coal was observed extending from the 

No. 30 crosscut inby for approximately 220 feet (Tr. 179, Exh. M-10). 

It measured 20 inches in depth and 4 feet in width (Tr. 179, 

Exh. M-10). The belt was running in coal for 220 feet (Tr. 179). 

There were three stuck rollers, and two rollers were turning in 

coal from the No. 30 to the No. 34 crosscut (Tr. 179, Exh. M-10). 

1140 
An accumulation of loose coal was observed extending from the 

No. 35 crosscut to the No. 44 crosscut, a distance of 540 feet. It 

measured 4 to 8 inches in depth and 3 feet in width (Tr. 179-1~0, 

Exh. M-10). The accumulation was found only on one side of the belt 

(Tr. 198). 

An accumulation of loose coal was observed extending from the 

No. 44 crosscut inby for approximately 80 feet. It measured 18 to 

24 inches in depth and 4 feet in width. The belt and four bottom 

rollers were running in coal. There was coal on both sides of the 

belt (Tr. 180, Exh. M-10). 

An accumulation of loose coal was observed extending from the 

No. 46 crosscut to the No. 63 crosscut, a distance of approximately 

1,020 feet. It measured 4 to 16 inches in depth and 2 to 4 feet in 

width. The belt was running in coal at the Nos. 56, 58 and 63 crosscuts (Tr. 180, Exh. M-10). 

An accumulation of loose coal was observed extending from the 

No. 63 crosscut to the No. 68 crosscut, a distance approximately 

300 feet. It measured 4 to 8 inches in depth and 3 feet in width 

(Tr. 180, Exh. M-10). 

Float coal dust was deposited atop rock dusted surfaces from the 

No. 11 crosscut inby to the No. 63 crosscut, a distance of approximately 3,500 feet (Exh. M-10). Float dust was present the entire 

length of the belt from the drive to the tailpiece (Tr. 182, 222-223). 

A ruler was used to measure the depth and width of the various 

accumulations (Tr. 181). The lengths were approximated by using the 

60-foot centers as a guide (Tr. 181). The loose coal was defined by 

the inspector as ranging from 1 to 4 inches in diameter (Tr. 182). 

Float coal dust was described by the inspector as possessing the 

property whereby it becomes suspended in the air when disturbed (Tr. 

182). Although the inspector did not measure the float dust (Tr. 

182), he did blow on it (Tr. 183). He stated that float coal dust 

is very difficult to measure unless an extreme depth is present (Tr. 

183). 

The belt was running during the course of the inspection (Tr. 

183, 196, .436), which began at 7:30-7:35 a.m. (Tr. 412), until it was 

shut down at 8:20 a.m. (Tr. 196, 417). No coal production occurred 

during the course of the inspection. ll 

3/ At several points in his testimony, Inspector Stanley expressed 

his belief that coal production was taking place during the course 

of his inspection (Tr. 201, 212). He observed coal on the belt 

periodically (Tr. 196), and opined that it had resulted from mining 

activity, as opposed- to having been deposited on the belt by belt 

1141 
These accumulations resulted from belt spillage which occurred 

during the normal process of mining (Tr. 184). According to 

Mr. Matheson, on or around November 14, 1977, a fall occurred on the 

No. 6 belt line, and the No. 3 Unit was loading rock (Tr. 338). ~oth 

units were located inby the Second Main South belt, and the belt had 

to be employed to transport the rock out of those areas (Tr. 338). 

The transporting of large rocks on the belt causes a belt alignment 

problem (Tr. 339-340). Alig1".Illent problems cause spillage problems 

(Tr. 202). 

The Respondent had a written cleanup plan in effect on 

November 21, 1977 (Exh. M-17), which states in pertinent part: 

"The float dust and coal spillage is shoveled by hand on all belt 

haulage. This work is being done on both c~al run shifts" (Exh. 

M-17, Tr. 189-190). However, the interpretation of this plan set 

forth by Inspector Stanley varies materially from the interpretation 

urged by the Respondent's witnesses. 

Footno.te 3/ (continued) shovelers, based upon. its length (Tr. 212). 

He observed that shoveling coal onto the belt produces "a spot here, 

another spot here***," whereas loading it from the face area produces a longer stream (Tr. 212). He believed that it had come from 

the working sections inby (Tr. 219). However, he admitted under 

cross-examination an absence of knowledge as to whether any miners 

had reached the faces by 8:20 a.m. (Tr. 201). 

In light of the testimony of both Inspector Mills and the 

Respondent's witnesses, I conclude that Inspector Stanley was mistaken in his belief, and that the coal he observed on the belt had 

not been mined from a face. The testimony adduced with respect to 

Order No. 1 MEM, Part V(B)(l)(a), supra, indicates that no production was under way in the working sections adjacent to the Third 

Main South belt, and that the Third Main South belt was not in operation on the November 21, 1977, day shift. The Third Main South 

belt was inby and discharged onto the Second Main South beit 

(Tr. 344-345). It was impossible to transport material to the surface via the Third Main South belt without employing the Second 

Main South belt (Tr. 345). These facts weigh against Inspector 

Stanley's belief because he thought the coal was coming from 

working faces inby his location on the Second Main South belt 

(Tr. 219). In fact, he had no actual knowledge as to whether the 

inby belt had been running that day (Tr. 219-220). 

Additionally, Mr. Lovell saw no coal on the belt, and he had 

walked with the inspector for a distance of 33 crosscuts (Tr. 413). 

When he left the inspector at 8:15 or 8:20 a.m., it was for the purpose of shutting down the belt (Tr. 417). 

Additionally, although it would have been possible for the workmen to have commenced mining by 8:15 or 8:20, the testimony of 

Mr. Lovell reveals that it was highly improbable (Tr. 417-418). 

1142 
According to Inspector Stanley, the cleanup plan was not being 

followed in that the spillage was not being shoveled onto the belts 

on both coal production shifts (Tr. 190). The inspector's interpretation of the plan was that the accumulations should have been cleaned 

up on each shift (Tr. 190). It should be recalled at this juncture 

that Inspector Mills, whose interpretation of the plan has been discussed previously in Part V(B)( 1) (a), supra, interpreted the cleanup 

plan the same way .. 

The Respondent's witnesses disagreed with this interpretation. 

Mr. Brent Roberts., while agreeing that cleanup is required during 

the production shifts (Tr. 246, 274), stated that the plan refers 

to a continuous cleaning process which does not· necessarily mandate 

one cleanup per shift (Tr. 274). According to Mr. Roberts, the fact 

that a spillage had existed for a couple of shifts would not necessarily make it an improper accumulation as long as work is being performed on it (Tr. 298). His interpretation of the plan was that it 

merely required work to be performed on the accumulation (Tr. 298). 

Mr. Martin T. Lovell gave differing interpretations at various 

points in his testimony, one of which is in harmony with Inspector 

Stanley's interpretation and one of which is in harmony with 

Mr. Roberts' interpretation. According to Mr. Lovell, the cleanup 

plan requires work to be performed on both coal run shifts, but does 

not state that spillage has to be cleaned up within two coal run 

shifts (Tr. 455). However, during the course of examination by the 

Judge, he interpreted the cleanup program as requiring the cleanup 

of all accumulations by the end of each production shift in the 

ab"sence of excessive amounts of spillage (Tr. 449-450). He defined 

an "excessive amount of spillage" as being "where the rollers or belt 

would be turning in coal" (Tr. 454). He thereupon stated, during 

cross-examination, that if a spillage or accumulation is caused by 

the normal process of mining, regardless of the extent of the accumulations, they are supposed to be cleaned up ·according to the cleanup 

plan (Tr. 455). 

Based on the foregoing testimony as to the meaning of the cleanup 

plan in effect on November 21, 1977 (Exh. M-17), I conclude that the 

plan requires accumulations to be cleaned up by the end of each production shift, and that the plan en·compasses those spillages caused by 

belt alignment problems resulting from the transportation of rock on 

the belt. This interpretation is buttressed by the fact that, to a 

certain extent, roof falls are normal at the Camp No. 1 Mine (Tr. 373, 

376), thus requiring frequent use of the belts to transport the material produced by the falls. 

The subject order of withdrawal (Exh. M-10) alleges a violation 

of 30 CFR 75.400. The text of this section of the Code of Federal 

Regulations and the elements of MSHA's prima facie case as set forth 

in Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD par. 

1143 
22,087 (1977), motion for ~econsideration denied, 8 IBMA 196, 1977-

1978 OSHD par. 22,328 (1977), have been set forth in Part V(B)(l)(a), 

supra. Briefly, MSHA's prima facie case consists of three elements: 

~The existence of an accumulation of combustible materials in 

the active workings of a coal mine, or on electrical equipment 

therein; (2) that the operator knew or should have known of their 

existence; and, (3) that the operator failed to clean up, or failed 

to undertake to clean up, the accumulations within a reasonable time 

after he knew or should have known of their existence. 

There can be no doubt that accumulations of combustible materials 

existed in the active workings of the mine as qescribed above. 

The extent of the accumulations was sufficient to give the operator knowledge of their presence (Tr. 188). According to Inspector 

Stanley, the condition had existed for at least 1 week prior to 

November 21, 1977 (Tr. 189). His opinion was based upon two sets of 

facts (Tr. 189). First, he had examined the examiner's reports on 

the surface (Tr. 186). The condition had beeri reported by the examiner in a series of entries made between November 17, 1977 and 

November 19, 1977 (Exh. 0-2, Tr. 186-187). Second, the presence and 

color of the float coal dust deposited atop the spilled ~oal indicated that it had been present for at least 1 week (Tr. 189). According to the inspector, a period of time is required for float coal dust 

to move dovm the belt line and settle on the coal (Tr. 213). A recent 

spillage would be shiny black, whereas one present for a longer period 

of time would have a brownish cast (Tr. 213-214). The float coal dust 

observed by the inspector had a brownish cast (Tr. 214). Additionally, 

the depths of the accumulations, and, in some instances, the presence 

of rock dust deposits atop the coal, also influenced his time estimate 

(Tr. 213). The accumulations should have been discovered during a 

proper preshift or onshift examination (Tr. 188-189). 

The testimony of Respondent's witnesses is sufficient to corroborate the inspector's time estimate. First, a close examination of the 

entries in Exhibit 0-2, mentioned by Irispector Stanley in his testimony (Tr. 186-187), shows that they are not identical. Some are very 

specific, while some are very general in their descriptions. 

Mr. Matheson indicated that, in response to the entires in Exhibit 

0-2, he had assigned from six to 10 belt cleaners daily to the subject 

belt (Tr. 336-33 7) between Novmeber 18 and November 21, 1977. As a 

permissible inference, one could infer that these men removed all of 

the accumulations along the belt on each day they were assigned to the 

area, a fact that would explain the differing descriptions contained 

in the belt examiner's book (Exh. 0-2). Under this interpretation, no 

two descriptions would be alike because they would not be referring 

to the same accumulation(s) on successive days. This appears to be the 

interpretation advanced by Respondent, as evidenced by Mr. Matheson's 

testimony regarding "fines." "Fines" were defined by Mr. Matheson 

as small particles that fall through the belt splices (Tr. 327). 

1144 
He testified that he did not see any accumulation of fines along 

the 15 to 20 crosscut distance that he walked with Inspector Stanley 

(Tr. 346-347). According to Mr. Matheson, the absence of fines 

denoted that the belt had been shoveled previously because: "[t]h~ 

more fines you have, the longer its been since the belt has been 

shoveled" (Tr. 347). Unfortunately, the absence of fines has little 

probative value when viewed in light of the extensive accumulations observed by the inspector. Even assuming that the accumulations 

were intended to be removed at the end of two shifts, Mr. Matheson 

could not state that all accumulations were always removed within two 

shifts (Tr. 385). 

The testimony of both Mr. Matheson and Mr. Lovell reveals that 

the belt examiner's reports do not always contain a complete record of 

the belt examiner's observations. Mr. Lovell had reached the conclusion that the belt needed to be shut down prior to the issuance of 

the order because, while walking the belt with the inspector, 

Mr. Lovell's observations caused him to conclude that the accumulations were "too much" (Tr. 443). Mr. Matheson had apparently reached 

the same conclusion. After walking 15 to 20 crosscuts, he went inby 

to the No. 3 overcast region of the Third Main South belt to reassign 

his men to the Second Main South belt. He did so because his pecsonal 

observations revealed that the spillage problem was more extensive 

than what he had read in th~: belt examiner's book, and he therefore 

deemed it necessary to reassign his men to the area (Tr. 342-346). 

In light of the foregoing, Mr. Matheson's statements that belt examiners consistently record those things that need shoveling, and that 

such examiners always indicate when cleaning is necessary (Tr. 364-

365), stand discredited to the extent they infer that the entries 

in the belt examiner's book accurately recorded the extensiveness of 

the accumulations along the Second Main South belt. 

The presence of two additional factors serves to corroborate the 

inspector's time estimate. First, the above-mentioned activities that 

occurred on or around November 14, 1977 ., resulted in the loading of 

the rock that adversely affected the belt alignment, resulting in the 

spillage. The fact that the alignment problem can be traced to at 

least 1 week prior to November 21, 1977, corroborates the inspector's 

1-week time estimate. Second, Mr. Matheson recalled assigning six to 

10 belt cleaners per day to the Second Main South belt on the 14th, 

15th, 16th, and 17th days of November 1977 (Tr. 337). Since cleanup 

personnel were assigned to an area based upon both the entries in the 

belt examiner's book and conversations with the belt walkers (Tr. 

310), it can be inferred that the condition had been reported to 

Mr. Matheson on those days. 

Accordingly, it is found that a large portion of the conditions 

cited in the subject order of withdrawal had existed for approximately 

1 week prior to November 21, 1977, and that, based on the foregoing, 

the Respondent knew or should have known of their existence. 

1145 
In light of the foregoing conclusion that most of the accumulations had existed for approximately 1 week, and in view of the 

requirement of the cleanup plan that accumulations. be removed by the 

end of each production shift, it is found that the Respondent failed 

to clean up or undertake to clean up the accumulations within a reasonable time after it knew or should have known of their existence 

in that it failed to follow its written cleanup program. For the 

reasons previously set forth in this decision, the fact that the 

transportation of large rocks on the belt had caused an alignment 

problem that resulted in the subject spillages, does not excuse the 

Respondent's faiiure to adhere to the cleanup plan. The fact that 

the spillage occurred during the normal process· of mining (Tr. 184) 

further places them within the scope of the plan. 

This finding is bolstered by the testimony of Mr. Matheson. 

Instead of affirmatively stating that he always complied with the 

cleanup plan, he testified that he endeavored to comply with the 

cleanup plan to the "best of my ability" (Tr. 308). The inferences 

drawn from this guarded statement, coupled with the fact that the 

mine faced problems with dirty belts (Tr. 194, 282), further supports the conclusion that the cleanup plan was not followed during 

the periods of time pertinent to this proceeding. 

The presence of cleanup men working on the' belt at the time the 

inspection was underway does not aid the Respondent on the facts as 

presented herein. The inspector observed only two persons cleaning 

the belt, and they were observed at the No. 34 crosscut (Tr. 199, 

214). Mr. Matheson had reviewed the belt examiner's book (Exh. 0-2) 

on November 21, 1977 (Tr. 314). Although he later concluded that 

the entries contained therein understated the spillage problem (Tr. 

342-345), the information contained in the book caused him to assign, 

to the best of his recollection, eight to 10 belt cleaners to the 

Second Main South belt (Tr. 336). The fact that the information contained in the book caused Mr. Matheson to conclude that eight to 

10 men were needed to alleviate the spillage, coupled with the presence of only two belt cleaners on the belt, prevents a finding that 

the Respondent was in the process of implementing effective cleanup 

procedures at the time of the order's issuance. 

(b) Gravity of the Violation 

The description of the extent, composition and location of the 

accumulations is set forth in Part V(B)(2)(a). 

The Second Main South belt was running from the time the inspector started at 7:30-7:35 a.m. until it was shut down at 8:15-8:20 a.m. 

(see Tr. 183, 196, 206-207, 411-412, 417). Inspector Stanley testified as to the presence of stuck rollers, as Set forth in Part 

V(B)(2)(a), supra. He felt the rollers, and some of them were warm to 

the touch (Tr. 195). 

1146 
Mr. Matheson indicated that the belt had been in operation during 

the week prior to the order's issuance (Tr. 393). He also stated that, 

given the proper conditions, a belt fire can be started by one stuck 

roller or by the belt dragging in coal (Tr. 394, 396). Mr. Lovell 

stated that a belt running in coal presents an ignition source 

(Tr. 425). 

The inspector stated that the area was rock dusted (Tr. 189), but 

.indicated that the belt was not well rock dusted (Tr. 203). There was 

float coal dust atop the rock dust (Tr. 189). He identified the potential hazard as a mine fire (Tr. 195), and classified an occurrence as 

"probable" because friction could cause a fire (Tr. 195). The possible injury was death by smoke inhalation (Tr .. 196). Approximately 

50 miners were exposed to the hazard (Tr. 196). He stated that with 

respect to methane, in "this area it would be academic as far as being 

any sufficient amount" (Tr. 195). There were firesensing lines and a 

water line in the area (Tr. 203). The water line adjacent to the belt 

ran the entire length of the belt (Tr. 415). There were both primary 

and secondary escapeways (Tr. 204). 

Accordingly, on the facts as set forth above, it. is found that 

the violation was extremely serious. 

(c) Negligence of the Operator 

As set forth in Part V(B)(2)(a), supra, the Respondent knew or 

should have known of the presence of the combustible accumulations in 

the mine's active workings. This is based upon the entries in the 

belt examiner's book, the duration of the accumulations' existence, 

the extent of the accumulations as sufficient to give notice to the 

operator, and the fact that they should have been observed during a 

proper preshift or onshift examination. Also,. the Respondent failed 

to undertake effective cleanup procedures within a reasonable time 

after it knew or should have known of the accumulations' presence. 

Accordingly, it is found that the Respondent demonstrated more 

than ordinary but somewhat less than gross negligence. 

3. Good Faith in Securing Rapid Abatement: Order Nos. 7-0565 

1 (MEM), November 21, 1977, and 7-0563 (1 LWS) 

The Second Main South and Third Main South belts had a combined 

length of approximately 7,000-8,000 feet (Tr. 209, 350). After 

regrouping his men, Mr. Matheson had approximately 35 people cleaning 

the Second Main South belt (Tr. 352, 420). By the end of the first 

shift, a major portion of the Second Main South belt, in Mr. Matheson's 

estimation approximately 95 percent, had been cleaned (Tr. 352). The 

Second Main South belt was rock dusted after it was cleaned (Tr. 352-

353). The mine has only one rock dusting tanker, and it is possible 

to rock dust eight to 10 crosscuts with one tanker and do a good job 

(Tr. 353). There are approximately 70 crosscuts on the Second Main 

South belt (Tr. 353). 

1147 
The Second Main South belt had been cleaned ·and portions of it 

had been rock dusted by 7 a.m. on November 22, 1977 (Tr. 194-195, 

207, 209). The rock dusting was still under way when the inspector 

arrived (Tr. 209-210). 

As regards the Third Main South belt, the accumulation near 

the No. 3 unit ov.ercast had not been cleaned up by 6:30 a.m. on 

November 22, 1977 (Tr. 63). However, it was abated by 8:30 a.m. 

(Tr. 64-65). 

Accordingly,. it is found that the operator demonstrated good 

faith in securing rapid abatement of the viola~ions. 

4. Order No. 7-0583 (1 LWS), December 1, 1977, 30 CFR 75.200 

(a) Occurrence of Violation 

MSHA inspector Louis W. Stanley arrived at the Respondent's Camp 

No. 1 Mine at 6:20 a.m. on December 1, 1977 (Tr. 460). He went underground between 7:00 and 7:15 a.m. (Tr. 460). He was accompanied 

during the inspection by Mr. Martin T. Lovell, the safety manager 

at the Respondent's Camp No. 1 Mine (Tr. 519). 

According to the inspector, the roof was inadequately supported 

at a point in the No. 1 entry in the Fourth East Panel off 2 Main 

South located 60 feet outby spad 4+20 (Exh. M-13, Tr. 464). The 

Fourth East Panel is .also called the No. 3 Unit (Tr. 461). The No. 1 

entry was being used as a supply road at the time, and people were 

observed riding under the inadequately supported roof (Tr. 464, 468, 

485-486), even though a danger sign was located at the mouth of the 

cavity (Tr. 471). The road was 18 feet wide (Tr. 490-491). There 

were rocks hanging from the ceiling of the cavity, most of which 

were to the side (Tr. 478). 

He thereupon issued the subject order of withdrawal (Exh. M-13), 

citing the Respondent for a. violation o·f the mandatory safety standard embodied in 30 CFR 75.200, which states, in pertinent part: 

"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 cavity existed in the roof of the No. 1 entry, a cavity caused 

by a previous roof fall (Tr. 464-465). Mr. Lovell confirmed the existence of the cavity (Tr. 520). It was approximately 35-40 feet in 

length (Tr. 465) and approximately 10 feet high (Tr. 487). Width estimates were made with reference to those roof bolts which had been 

installed in the cavity. 

1148 
According to the inspector, only a portion of the cavity was completely lacking support. Two rows of bolts had been installed for a 

distance of 16 lineal feet and three rows of bolts had been installed 

for a distance of 20 lineal feet (Tr. 465, Exh. M-16). In the inspector's opinion, there should have been at least four rows of bolts for 

the entire length of the cavity (Tr. 466). 

The blue lines on Exhibit M-16 represent the estimated widths of 

areas totally lacking supports, figures estimated with reference to 

the previously installed supports. Exhibit M-16 is not drawn-to-scale 

(Tr. 465-466). The previously installed supports were located toward 

the center of the cavity (dark circles on Exhibit M-16). On the 

lefthand side of the cavity, supports were lacking in an area 

approximately 4 feet in width and 16 feet in length (Exh. M-16, 

Tr. 484-485). On the righthand side of the cavity, supports were 

lacking in an area measuring 36-40 feet in length, and varying 

in width between 8 and 10 to 12 feet (Exh. M-16, Tr. 485). 

The inspector measured the length of the cavity (Tr. 482). He 

estimated all widths visually ,

1 both as to the spacing between the roof 

bolts and as to the unsupported area, because the 10-foot height of 

the cavity, coupled with the presence of rock from the previous roof 

fall on either side of the entry, prevented his taking measurements 

(Tr. 465, 483-484, 487-488). At one point in his testimony, 

Mr. Lovell, who was present when the order was issued, stated.both 

that the inspector's estimate of the distance of the cavity was 

reasonably accurate and that all of the inspector's dimensions seemed 

reasonably accurate (Tr. 520). Mr. Lovell further stated that 

Exhibit M-16 accurately reflects the roof bolts present at the time 

(Tr. 520). Furthermore, he did not dispute the fact that there was 

an area of unsupported roof (Tr. 534). 

In light of the corroborating testimony of Mr. Lovell, coupled 

with the absence of any objections to the measurement procedure in 

either the testimony or in the Respondent's posthearing brief, it 

is found that the inspector's width and distance esitmates are sufficiently accurate for purposes of resolving the issues presented 

herein. 

The inspector testified that he did not cite a violation of the 

roof control plan because the plan does not specifically cover rebolting in the situation presented herein (Tr. 494-495). He stated that 

the roof control plan in effect on the date of the order addressed 

the rebolting of roof cavities only as follows: "Header boards shall 

be installed between the roof bearing plate and the roof where cavities are rebolted. Conventional roof bolts may be used in these areas" 

(Tr. 498; Exh. M-40, p. 9, No. 32). However, he observed that the 

roof control plan normally requires bolts to be on 5-foot centers, and 

that normally four rows of bolts would be across an entry (Tr. 491-

492). 

1149 
Mr. Lovell indicated that the roof control plan covered the area. 

He thought it required conventional bolts to be set on 5-foot centers, 

but admitted that the plan was vague (Tr. 539 )'. 

It is unnecessary to address the ambiguities in the roof control 

plan, if it is indeed ambiguous, because the plan is not the basis for 

the violation presented herein. In Zeigler Coal Company, 2 IBMA 216, 

80 I.D. 626, 1973-1974 OSHD par. 16,608 (1973), the Board of Mine 

Operations Appeals held "that an operator is un,der a duty to maintain 

a safe roof irrespective of any roof control plan and that the 

failure to do so constitutes a violation of the mandatory safety 

standard of [30 CFR 75.200)." 2 IBMA at 222. 

Accordingly, where the evidence presented is sufficient to establish that the mine's roof was not adequately supported to protect 

persons from falls, it is not necessary to prove a violation of the 

roof control plan in order to sustain a violation of 30 CFR 75.200. 

Mr. Lovell did not dispute the fact that ·an area of unsupported 

roof existed (Tr. 534, 542). However, for reasons set forth in the 

section of this decision discussing the gravity of the violation, he 

disagreed that the individuals riding in the mantrip would be required 

to travel directly under unsupported roof (Tr. 542). Yet, he did not 

dispute the fact that either the supported or the unsupported section 

of roof could fall (Tr. 540). 

The question presented is whether the above-mentioned facts establish a violation of 30 CFR 75.200 by a preponderance of the evidence. 

Both witnesses agreed that unsupported roof existed in the area cited 

in the subject order of withdrawal. Inspector Stanley testified as 

an expert that the number of supports present was inadequate, stating 

that four rows of supports should have been installed. Rocks were 

observed hanging from the roof of the cavity, most of which were to 

the side. During the abatement process, some of the unbolted roof 

fell (Tr. 474). Miners were observed pas~ing beneath the cavity, 

even though a danger sign was conspicuously located at its mouth. 

Even Mr. Lovell admitted that an area of unsupported roof was present, 

and he did not dispute the fact that the unsupported section of roof 

could fall. 

Accordingly, it is found that a violation of 30 CFR 75.200 has 

been established by a preponderance of the evidence. 

(b) Gravity of the Violation 

The inspector identified the potential danger as fatal roof falls 

(Tr. 472). Possible injuries ranged from smashed fingers to death 

(Tr. 4?3). Ten miners were directly exposed to the hazard (Tr. 473). 

The inspector stated that an occurrence was probable, and, indeed, 

during the abatement process, some of the unsupported roof fell 

(Tr. 474). 

1150 
There were fractures in the roof (Tr. 478, 541). According to 

the inspector, they were present in both the bolted and unbolted portions of the cavity (Tr. 479). The inspector stated that fractures 

are very dangerous in unbolted sections of roof (Tr. 479). 

Mr. Lovell indicated that cracks can add to the extent of a roof 

fall as relates to unsupported roof, depending upon the depth of the 

fracture (Tr. 541). The inspector stated that the danger sign indicated that the Respondent thought the condition was bad because it 

was unsupported (Tr. 490). 

The 10-foot height of the cavity prevented the inspector from 

testing the roof for druIIUniness (Tr. 486). 

The roof was not working (Tr. 478, 528). The term "working" 

refers to cracking and popping (Tr. 478). 

According to Mr. Lovell, a mantrip, which is approximately 6 to 

8 feet wide, could travel under the bolted portion of the cavity and 

still remain under supported roof (Tr. 529-530). During the course 

of the hearing, he produced a drawing to assist in illustrating his 

opinion (Exh. 0-5). His testimony referred to that portion of the 

cavity where two rows of bolts wer':! present (Tr. 529). 

According to Mr. Lovell, tl,e roof control plan requires conventional bolts to be installed on 5-foot centers (Tr. 529), thus leading to the conclusion that each conventional roof bolt provides roof 

support within a 2-1/2-foot radius (Tr. 529-530, 542). Conventional 

bolts had been installed in the cavity (Tr. 529), with 5 feet between 

each bolt (Tr. 529). He therefore concluded that the two bolts provided support for a distance of 10 feet, as measured between the ribs. 

This figure was reached by adding the 5 feet between the two bolts to 

the 2-1/2 feet on the opposite side of each bolt (Tr. 529, 530). In 

his opinion, this was sufficient to allow the 6- to 8-foot wide mantrip to pass under supported roof. (Tr. 530, 542). 

A review of Mr. Lovell's background (Tr. 409) reveals that he 

does not posses the credentials necessary to accord great probative 

value to his theory. Indeed, he could not state that the presence of 

the bolts in the cavity would either impede a roof fall or lessen its 

severity (Tr. 540-541). Accordingly, his testimony on this point 

does not materially affect the gravity of the violation. The fact 

that the inspector testified that a person walking down the center 

of the travelway would be under the bolted portion of the roof 

(Tr. 482) cannot be interpreted as lending support to Mr. Lovell's 

theory of the facts presented herein. Indeed, the inspector saw 

people pass beneath the unsupported roof (Tr. 468). 

On the facts as set forth above, it is found that the violation 

was extremely serious. 

1151 
(c) Negligence of the Operator 

The condition was readily visible (Tr. 471). The condition was 

listed on the preshift examiner's reports commencing November 25, 1977 

(Exh. M-19, Tr. 469) and running through November 30, 1977 (Exhs. M-20, 

M-21, Tr. 469-470). The entry in Exhibit M~22 for December 1, 1977 

(Tr. 470), was made after the issuance of the order (Tr. 546-550, 

553-554). There was a danger sign immediately outby the cavity across 

the supply road (Tr. 471). It had been placed.there between 12 midnight 

and 8 a.m. on November 30, 1977 (Tr. 532). The fact that more rock had 

to be removed from the area before the remaining bolts could be 

installed (Tr. 533) does not lessen the degree ?f negligence demonstrated by the Respondent. 

Accordingly, it is found that the Respondent demonstrated a high 

degree of gross negligence. 

(d) Good Faith in Securing Rapid Abatement 

The order of withdrawal was issued at 7:50 a.m. on December 1, 

1977 (Tr. 463, Exh. M-13), and was terminated at 11:00 am. on 

December 2, 1977 (Exh. M-14). The condition was abated by installing 

additional roof bolts (Tr. 474). 

Accordingly, it is found that the Respondent demonstrated good 

faith in securing rapid abatement of the violation. 

5. History of Previou~ Violations 

The Respondent's history of previous violations, relating to the 

Camp No. 1 Mine, as contained in Exhibit M-2, during the 24 months 

prior to November 21, 1977, is summarized as follows: 

30 CFR 

Standard 

All sections 

75.200 

75.400 

Year 1 

11/22/75 - 11/21/76 

334 

28 

43 

Year 2 

11/22/76 - 11/21/77 

520 

49 

50 

(Note: All figures are approximations). 

Totals 

854 

77 

93 

The Respondent paid assessments for approximately 854 violations 

of all sections of Title 30 of the Code of Federal Regulations during 

the 24 months prior to November 21, 1977. ·Approximately 334 are shown 

during year 1, and approximately 520 are shown during year 2. 

~he Respondent paid assessments for approximately 77 violations 

of 30 CFR 75. 200 during the 24 months prior to N.ovember 21, 1977, with 

approximately 28 during year 1 and approximately 49 during year 2. 

1152 
The Respondent paid assessments for approximately 93 violations 

of 30 CFR 75.400 during th~ 24 months prior to November 21, 1977, with 

approximately 43 during year 1 and approximately 50 during year 2. 

On June 30, 1977, Peabody Coal Company was transferred by 

Kennecott Copper Company to Peabody Holding Company (Tr. 510-511). 

Respondent contends that the change in ownership prevents including 

the violations prior to June 30, 1977, in the history of violations 

(Tr. 10-15, Respondent's Posthearing Brief, p. 25). Counsel for the 

Respondent was informed during the hearing that for the position to 

be considered, appropriate evidence would have to be placed in the 

record (Tr·. 15). No evidence has been presented as to the structure 

of Kennecott Copper Company, Peabody Holding Company, and Peabody 

Coal Company, and their relationships with the subject mine. There 

is no'evidence establishing that the change in ownership marks any 

change in company policy as to mine safety. The fact remains that 

Peabody Coal Company has been the operator of the Camp No. 1 Mine at 

all times relevant to this proceeding (Exh. M-2). 

Accordingly, violations which occurred prior to June 30, 1977, 

will be considered in evaluating the Respondent's history of 

violations. 

6. Appropriateness of Penalty to Size of Oper.ator's Business 

The Camp No.l Mine produc~d approximately 559,509 tons of coal 

in l978 (Exh. M-1). Peabody Coal Company produced approximately 

. 47 ,650,569 tons of coal in 1978 (Exh. M-1). Furthermore, the parties 

stipulated that the Respondent is a large operator for purposes of 

assessment of any civil penalties (Tr. 8). 

7. Effect on Operator's Ability to Continue in Business 

The parties stipulated that the assessment of any penalties in 

this proceeding will not affect the Respondent's ability to continue 

in business (Tr. 8). Furthermore, the Interior Board of Mine Operations Appeals has held that evidence relating to whether a civil 

penalty will affect the operator's ability to remain in business is 

within the operator's control, resulting in a rebuttable presumption 

that the operator's ability to continue in business will not be 

affected by the assessment of a civil penalty. Hall Coal Company, 

1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). Therefore, I find that penalties otherwise properly assessed in this proceeding will not impair the operator's ability to continue in 

business. 

VI. Conclusions of Law 

1. Peabody Coal Company and its Camp No. 1 Mine have been subject to the provisions of the Federal Coal Mine Health and Safety Act 

of 1969 and the 1977 Mine Act during the respective periods involved 

in this proceeding. 

1153 
2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to this proceeding. 

3. The violations charged in the subject orders of withdrawal 

are found to have occurred. 

4. All of the conclusions of law set forth in Part V of this 

decision are reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

Both parties submitted posthearing briefs: Both parties submitted reply briefs. Such briefs, insofar as they can be considered 

to have contained proposed findings and conclusions, have been considered fully, and except to the extent that such findings an.d conclusions have been expressly or impliedly affirmed in this decision, 

they are rejected on the ground that they are, in whole or in part, 

contrary to the facts and law or because they are immaterial to the 

decision in this case. 

VIII. Penalties Assessed 

Upon consideration of the entire record in this case and the 

foregoing findings of fact and conclusions of l'aw, I find that the 

assessment of penalties is warranted as follows: 

Order No. 

7-0565 (1 MEM) 

7-0563 (1 LWS) 

7-0583 (1 LWS) 

Date 

11/21/77 

11/21/77 

12/01/77 

ORDER 

30 CFR 

Standard 

75.400 

75.400 

75.200 

Penalty 

$3,000 

6,000 

8,000 

Respondent is ORDERED to pay the penalties assessed in the 

amount of $17,000 within 30 days of the date of this decision. 

1154 

ohn 

I~ F. Cook 

Administrative Law Judge 
OFFICE Of ADM!i;iiSTRATlVE LAW JUDGES 

4015 WIL.501·l ;:\OUL.t::V>.RD 

/3.RLINGTON, vmGINlf, 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COYJ.PANY, 

Respondent 

;·. . '·" •• ,.. ,. -. 

..., .,- • . :"""'! ~ \,i •# ... • ... 

Civil Penalty Proceeding 

Docket No. BARS 78-474-P 

A.O. No. 15-02079-02021V 

Ken No. 4 Underground Mine 

DECISION 

Appearances; Leo J. HcGinn, Trial Attorney, Office of the Solicitor, 

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

petitioner; 

Thomas Gallagher, Esquire, St. Louis, Missouri, for the 

respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

.This is a civil penalty proceeding pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, initiated by the petitioner against the respondent on June 19, 1978, through the filing of 

a petition for assessment of civil penalty, seeking a civil penalty 

assessment for five alleged violations of the provisions of certain 

ID<'.ndatory safety standards. Respondent filed an answer and notice 

of contest on July 3, 1978, denying the al.legations and requesting a 

hearing. A hearing was held in Louisville, Kentucky, on May 15, 1979, 

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 

penalties that should be assessed against the respondent for the 

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

1155 
of the Act. Additional issues raised by the parties are identified 

and disposed of in the course of thi_s decision. 

In determining the amount of a civil penalty assessment, section 

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

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

(3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated 800d faith of the operator in 

attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

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

effective lfarch 9, 1978, 30 U .s.c. § 801 et seq_. 

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

3. Commission Rules, 29 CFR 2700.1 ~ seq. 

The parties stipulated to jurisdiction, and that the respondent 

is a large mine operator. The mine in question produces .5,500 tons 

of coal per day and employs a total of 320 men. 

DISCUSSION 

Section 104(c)(2) Order No. 1 TML, December 20, 1976, citing 

30 CFR 7.5.402, states: 

Rock dust was not being applied up to and within 

forty feet of the working 1- laces (faces) in the Nos. 1 

thr.u 6 entries on the roof, ribs and floors and connecting crosscuts beginning at the unit ratio feeder and 

extending inby for approximately 150 feet on the No. 3 

unit 8 H.w. (I.D. 023) responsibility of the 1st and 

2nd shift foreman. Samples were taken. 

Petitioner~s Testimony and Evidence 

MSHA inspector Thomas M. Lyle, testified that he conducted a 

routine spot inspect.ion of respondent's mine for a period of 15 actual 

inspection days, from December 20, 1976, to March 4, 1977. The mine 

is located in the Kentucky No. 9 seam, has a coal height of approximately 56 inches, and conventional mining is conducted on six active 

units operating on two production shifts and a maintenance shift. 

Conventional mining equipment is used for the noncontinuous miner-type 

activiU.es such as cutting, drilling, shooting and loading. 

1156 
Inspector Lyle issued his order upon observing that: the floors 

of all six entries were black. The ribs and roof were spotty, and 

wet dust had been .sprayed on in streaks. The area involved consisted 

of the No. 1 through No. 6 entries and the crosscuts begi.nni.ng at the 

unit ratio feeder and extended for approximately 150 feet. The unit 

ratio feeder was approximately 170 feet awvy from the face~, was 

located at the belt dumping on the belt, and for some 150 feet inby 

from this point no rock dust had been applied. He walked up "lnd down 

and examined each of the entries, and walked by the 8 or 10 crosscuts 

and looked at them. Coal was being run at the time he walked the 

entries and crosscuts, and he saw no evidence of any dry rock dust 

being applied, but the roofs and ribs appeared spo'tty and had been 

sprayed with a slurry solution of rock dust and water, which does not 

take the place of regular rock dust, and it will dry out (Tr. 8-21). 

Inspector Lyle testified that the mine is usually dry rock dusted 

and he had never previously found it in such a condition. The lack of 

rock dust was readily observable and obvious, and anyone could see it 

visually. He took band samples .in the usual prescribed manner and the 

laboratory results are reflected .in Exhibit G-6. The three band sample results indicated 31, 30.7, and 32.4 percent incombustible rock 

dust content at the places sampled. The law requires 65 percent in 

intake air and 80 percent in the return. He took samples to substantiate the violation, although he ~s not required to do so since the 

area cited was obviously black through visual observation. He was 

accompanied during his inspection by assistant mine manager Ken Large 

who admitted that the condition of the section with regard to rock 

dusting was the worst 'he had ever seen (Tr. 21-26). The possible 

results o:f allowing the condition to go on, is that if a cutting 

machine had been at the face of coal and hit a pocket of methane gas 

and ignited, an explosion could occur since there was no dry rock 

dust on the roof, ribs and floor of the mine. 

With respect to the spots of wet dust that had been applied, the 

inspector stated that this would not have ·any effect on the seriousness of an explosion or an ignition, and indicated that it would not 

in any way suppress an explosion if there had been an ignition at the 

face. Once there is an ignition, the float coal dust will not stick 

because the area becomes very slick, thus the explosion is enhanced. 

In the event an ignition or· explosion were to occur in the area during 

the production shift, approximately 12 men could have been involved 

in such an explosion. The condition was such that the operator either 

knew or should have known that it existed since the men advanced 

approx].mately 50 to 60 feet per shift during the normal mining cycle 

and there were approximately two or three shifts involved. He 

examined the preshift books, but ·could see no indication that the 

conditions had been reported and noted. The foreman on the shift 

was responsible for examining the area on preshift and onshift examinations to see whether or not rock dust had been applied. The lack 

1157 
of rock dusting is visibly obvious since an area which has been 

rock dusted is less black than an area which has not be~n rock 

dusted. The mine floor was entirely black, and the roof and ribs 

were spa~' where they had been sprayed with the wet''ctust 

(Tr. 26-3lf). 

On cross-examination, Inspector Lyle confirmed that his notes · 

stated that: 

[R]ock dust was not being applied up to and within 40 feet 

of the working faces in Nos. 1 through 6 entries on the 

roof, ribs, floors and connecting crosscuts beginning at 

the unit ratio feeder and extending inby for approximately 

150 feet on the No. 3 unit, I.D. 0288 Nortln~est. Samples 

were taken to substantiate this. 

He explained the procedures he followed in taking his band samples, 

and reiterated the hazards presented when inadequate rock dust is 

applied. He also described the areas where he took his samples (Tr. 

38-53). 

Inspector Lyle testified that he found several other violations 

on the section on the No. 3 unit, which he told Mr. Large and the 

section foreman a.bout. He wrote a citation for n violation of 

75.301-1 for. insufficient air at the working face where it is either 

being cut, mined or loaded; 75.301 for insufficient air in the last 

open crosscut on the return side; 75.304 for inadequate onshift examination; and a section 75.401 float dust violation. He is not sure 

exactly how long he was on the unit, but he was there for a few hours 

(Tr. 53-54). 

In res2onse to questions from the be;nch, Ins,pector Lyle testified 

ti1at the previous four citations he issued on December 20, including 

a fifth one for. an inadequate line curtain, 7 5. 302-1, were all section 104(b) notices. One was issued at 6:15 p.m. and was abated at 

6:25 a.m.; the second issued at 6:20 p.m., and was abated at 6:30; the 

third issued at 6:31 p.m. and was abated at 6:45; and the fourth was 

issued at 6:40 p.m. and abated at 7 p.m. The order in issue here was 

issued at 7 p.m., therefore, all of the previously-mentioned conditions and citations had been abated prior to the issuance of the 

order (Tr. 54-57). He further testified that wet rock dust is normally used to comply with section 75.401 in areas of less than 40 feet 

of face in order to keep the dust down. Assuming that an operator 

used wet dust to totally rock dust an area such as the roof, ribs, and 

floor, and after doing that it appeared white, Mr. Lyle testified that 

he wou~d not accept that as being in compliance with 75.402, even 

though the incombustible content may be high and even though it 

completely whitens the area (Tr. 57-58). 

1158 
Respondent's Testimony and Evidence 

Myron D. Stewart, employed by respondent as a face foreman, testified that on the day in question w~ile he was at the face of the 

mine, Mr. Large accompanied Inspector Lyle to the face where he met 

them and the inspector took an air reading. He does not know what 

the air reading was since Inspector Lyle did not tell him, and he 

confirmed that the inspector issued a 104(c)(2) order that day for 

lack of rock dusting. According to Hr. Stewart, rock dusting had 

been done that day, but it did not meet the inspector's approvRl 

since the inspector had stated that wet dusting is not permissible 

(Tr. 68-71). 

Mr. Stewart identified a sketch he made of the rooms in question, 

and in describing the procedure for using a wet duster, he indicated 

that a wet duster is used because it covers evenly, men do not have 

to breathe the dust that is accumulated by throwing it in by hand, 

and that such dusting can be done during the ~reduction shift. In 

Mr. Stewart's experience of using a wet duster, it covers evenly 

rather than spotting since it is liquid in forin and it adheres to the 

roof and ribs. In his opinion, one of the advantages of a wet c:luster 

in terms of safety to miners is that they do not have to breathe in 

the air as when it is being applied by hand. With regard to the 

ability of dry dust as opposed to wet dust to cover an area, in his 

opinion, wet dust covers better. Mr. Stewart also stated that 

Exhibit R-2, which is an onshift production report for the period of 

December 17 to 20, indicates that rock dusting was permissibl.e on the 

unit, and if it were not, the report would have so indicated (Tr. 0

73-80). 

In order to abate the order, the area was rock dusted by hand, 

and then wet dusted. He was with Mr. Lyle the entire time that he 

was on the section, and he never heard Mr. Large make any remarks 

with regard to the condition of the rock dusting on the section, 

either in his presence or in Mr. Lyle's presence (Tr. 80-83). 

On cross-examination, Mr, Stewart testified that he first saw 

Mr. Lyle atthe face, and tl"lat coal was being produced at that time. 

Mr. Stewart did not learn that an order had been issued for a violation of 75.402 until he arrived outside of the mine that night. He 

stopped production in order to comply with the inspector's request to 

apply more rock dust, and although he did not know that au order had 

actually been issued, he ordered that the area be re-rock dusted since 

he had been instructed to comply with the requests of MSHA inspectors 

in order to make the section a better or more safe place to work. He· 

believes that the samples that were allegedly taken by the inspector 

are a fabrication because no samples were taken while he was on duty 

that night (Tr. 84-92). 

1159. 
Mr. Stew::irt fur.ther testified that the distinction between wet 

dusting and dry rock dusting is that the former adheres and covers 

a wide area and it can be applied during the production shift, while 

approximately 50 percent or more of dry reek dust· falls off as it is 

·applied by hand. The wet-dusting apparatus is located on the coal 

drill, and after the drilling is done, the slurry pump sprays the 

ribs and roof. According to Mr·. Stewart, rock dust is required to be 

maintained through the active areas within 40 feet of the face in 

order to comply with section 75.402 (Tr. 89-95). 

Mr. Stewart stated that the colot of the roof, ribs and floor 

within 20 feet of the working face was white •. With respect to the 

inspector's testimony that from 150 feet out to the face, it was 

dark in color, Mr. Stewart stated that it could not have been since 

the three entries had been driven approximately a week before and 

they had been rock dusted a long time ago; thus it was all white 

throughout the six entries and all the crosscuts 150 feet outby to 

the face. However, the feeder location would not be completely 

white because when the cars dump coal, they spill a small amount, 

thus making the area a little dirty; however, that is shoveled and 

cleaned up. Mr. Stewart vividly recalled the condition at the time, 

although he did not take any note[. Although he did not see a red 

tag being put up at 7 o'clock when the order issued, he knew where 

rock dusting had to be done in order to abate the order since the 

inspector stated that they would have to go back to the feeder and 

rock dust over ~iliat had been done before since it did not meet his 

approval (Tr. 98-101). 

Mr. Stewart indicated that the ribs, roof and floor had been 

rock dusted before the order issued because that is the normal procedure as the mining cycle advances. Wet rock dust was used on the 

ribs and roof, ·and dry rock dust was used on the floor, and that is 

the procedure that was followed in the mine at the time the order 

issued. Dry rock dust is not applied to the roof or ribs any place 

in the mine unless a shuttle car hits a rib and knocks it off, and 

if they had to use dry rock dust, production would have to stop (Tr. 

101-111). He had never previously been cited for using wet rock dust 

(Tr. ll2). 

In response to bench questions, Mr. Stewart testified that he 

was with the inspector the entire time only after he reached the face. 

Since the inspector had to .walk through the a·reas cited to reach the 

face, it is possible that he stopped and took samples. It was possible 

that Mr. Large and Inspector Lyle had some conversations while they 

were walking to the' face area, and Mr. Stewart would not have been 

aware of this (Tr. 113-115). 

Kenneth R. Large, mine account.~_;i.g engineer, testified that on 

December 20, 1976, he was acting mine manager on th~ second shift 

1160 
and that he and Mr. Lyle met in the office after which they went to 

the 8 Northest unit where they first encountered Section Foreman 

Stewart at the face. They then went .across the room and the inspector pointed out several things that needed to be done, all of which 

were taken care o_f immediately and. then they went down to the last set 

of r6oms that had been worked out. Inspector Lyle stated that he 

would not accept the wet dusting because it was inadequate, and he 

indicated that it was unacceptable from the "rosco11 to the face, and 

from the feeder, which was three breaks, but, he did not indicate 

the reasons why he would not accept wet dusting. He then indicated 

that he was going-to issue an order, which he did when he went outside the mine. Rock dusting had been done to about 20 feet to the 

face, and Mr. Large did teli Inspector Lyle that the area could have 

been dusted better, but he did not state to Inspector Lyle that it 

was in the worst condition that he had ever s.een the sec;:tion in, 

·although the inspector had indicated such in his notes (Exh. G-7). 

There i~ere several black places, some of which resulted from dust 

that had been applied over loose coal and then had fallen off, prob-: 

ably because some cars had hit the ribs and knocked it off. He and 

Mr. Lyle were on the section for approximately 1-1/2 to 2 hours; he 

was with Inspector Lyle the entire time, and Inspector Lyle never 

left his presence. He did not see Inspector Lyle take any band 

samples, and while he carried a plastic brief ~ase with him which 

was approximately 3 to 4 inches by 1 to 2 feet, in his estimation, 

Inspector Lyle did not have on his person the equipment necessary to 

take a band sample (Tr. 117-127). 

On cross-examination, Nr. Large testified that from the first 

open break outby the face to the "rosco," the six entries were adequately dusted; however, the first open break had just gone through 

and it had not been dusted. At the face, the area was black, but 

out by from the ratio feeder inby, it was all white. The two entries 

closest to the "rosco" would have been dry dusted because the break 

had been opened only since they moved in the set of rooms. Two of 

the breaks were already there and had been dry rock dusted. The 

floor had been rock dusted but one probably could not tell whether 

the roof and ribs were wet dusted because frequently when dry dust 

has been applied, it will sweat and one cannot tell if it is dry 

dusted or wet dusted. Wet dust is usually applied at the face, and 

one of its characteristics after it is applied is that it becomes 

hard and then caked, When the men pull out a set of rooms, the 

third shift will come in and move everything out and dry dust it. 

Wet dust suppresses the dust, and Mr. Large did not know why it would 

not serve the same purpose as rock dust in relation to suppression of 

fire or explosion. In his opinion, the purpose of 75.401 is to abate 

dust at the working face and the purpose of 75.402 is to prevent pro-

· ~agating an explosion. Although wet dusting is used at the face to 

suppress dust for the health and convenience of the workers, it is. 

necessary to add dr.y rock dust afterwards because after it gets older, 

it will deteriorate (Tr. 127-137). 

1161 
Mr. Large testified th1

at he did not see the inspector red tag the 

area, although that is the normal procedure when production is shut 

down. Although he was involved in the abatement of other violations 

at the time, he told someone else to take care of abating them (Tr. 

138). 

Inspector Lyle was recalled in rebuttal, and testified that wet 

dusting is routinely done in the mine at the face area to suppress 

dust and that after the wet dust is applied, it is routine practice 

at the mine to dry rock dust the areas. In his opinion, the distinction between the purpose of wet dusting and dry rock dusting is that 

when wet rock dust is applied to the roof and ribs·, it will dry and 

become a caked surface, and if an ignition should occur in the mine, 

it will not disperse into the atmosphere to suppress the ignition. 

The application of a wetting agent or wet dust does not satisfy the 

requirements under 75.402. The difference between the definitions 

of "rock dust" and "wet dust" is that rock dust would go through a 

20-mesh per linear-·inch sieve since it is dry, while wet dust will 

not, and wet dust will always become dry and adhere and form into a 

cake, while dry dust will not form into a cake. He referred to the 

appropriate Inspector's Manual references with respe.ct to the acceptable uses of wet rock dust (Tr. 141-146). 

Inspector Lyle further. testified that he took the samples indicated in the normal manner in which he was trained to do so and that 

no one observed him ts.king them. Although Hr. Large accompanied him 

in the mine on the section, they were not together all of the time 

since Mr. Large was involved with abating other violations that he 

had issued, and durin3 the time he was not with Hr. Large, he took 

the samples. He had the necessary equipment for taking the samples 

in his brief case which is approximately 24 inches long and 18 inches 

wide and a small plastic bag. The equipment that he uses to take the 

samples is about 8 inches by 8 inches and folds up. The handle to 

the brush is cut off and the screen part drops down inside the tray 

and the little scoop also fits inside the tray so that the eqiupment 

contains its elf. Re also had other equipment with him on that day 

such as anemometers or smoke tubes (Tr. 147-149). 

In ·response to bench questions, Inspector Lyle stated that it was 

customary in the mine to use the wet rock duster in the face area at 

less than 40 feet, but that in all areas up to 40 feet, dry rock dust 

is used with it with a Bantam duster. Respondent had been shortcutting 

and using the wet rock-dust solution to rock dust areas that are supposed to be dry rock dusted. The total weight of the samples taken was 

approximately 1 pound, and he followed the standard procedure and did 

red tag the section when he issued the order before going to the surface. Mr. Large and the section foreman were on the section, and he 

informed them that he was issuing a 104(c) (2) order for inadequate 

rock dusting, 30 CFR 75.402, and he was told that the cited condition 

would he remedied. He then hung his closure tag, returned to the surface, and went back the next day and abated the order (Tr. 154-157). 

1162 
Section 104(c)(2) Order No. 1 'IML) February 16, 1977, citing 

30 CFR 75.200, states: 

There has been a violation of the approved ro-of control 

plan dated October 197 6, No. 1+ unit 11 N. W. (I. D. 027) in 

that the connecting crosscut between the Nos. 4 and 5 

entries had been holed through (cleaned up and rock dusted) 

creating an intersection and had not been bolted (pinned) 

on the right side facing the No. 4 entry face and had been 

advanced, cut, drilled, shot and preshift examined, permitting workmen to advance inby the unpinned intersection 

to the working face. Responsibility of Jim G"reer and E. A. 

Conn, foremen. 

Petitioner's Testimony 

Inspector Lyle confirmed that he issued the order during a production shift after coming to a point between the Nos. 4 and 5 

entries, where the connecting crosscut had been opened up creating 

an interesection. The No. 4 entry had roof bolts installed just off 

the rib) but the rest of the crosscut in the area on the open end was 

not bolted, nor was it timbered or supported with any other means of 

permanent supports. The crosscut had a total of three bolts, and he 

examined the roof outby the bolted area and saw no evidence at all of 

pinning. The roof control plan had been violated, namely, page 6, 

item 13. The face was at the top of entry No. lf, and based on the 

markings of the preshift examiner and the location of the face, he 

realized that a cut of coal had been taken, advanced from the adjacent entry, and then holed through into the No. 4 entry. The precise 

violation of the roof-contra 1 plan was the fact that persons had gone 

inby into an unpinned section. Under the roof-control plan, the 

crosscuts are approximately 20 feet in width, and roof bolts are to 

be installed 3 feet from the rib line on 5-foot centers across; thus, 

approximately 15 or 16 feet of roofing was left without support. In 

his opinion, this would be a serious viola-tion because roof falls constitute "the number one killer in coal mines." Most of the falls in 

the No. 9 top in the Western Kentucky area occur in the crosscuts 

across the intersection, except when crosscuts are completely staggered. Unstable roof conditions are characteristic of mines in the 

Kentucky No. 9 area, which is the area in which the Ken No. 4 Underground Mine operates. The main roof at Ken No. 4 is composed of gray 

shale with rock bands, and the immediate roof is dark shale slate 

which tends to crack and break up, and it will slough and fall off. 

If a roof fall did occur, it would fall in the crosscut and out into 

the No. 4 entry, and wo~ld most likely directly fall on one person, 

although all workers on a section would be exposed to the hazard (Tr. 

158-171). 

With respect to the question of negligence, Inspector Lyle stated 

that the operator either knew or should have been aware of the condition since roof bolting is done during the normal mining cycle, and 

1163 
the prcshift examiner and the person who made the onshift examination 

should have noted the condition. Knowing that it was unbolted, men 

should not have gone inby unless they were going in t.o install temporary supports or to make rt gas check. Given the physical distances 

involved, and the physical s~tup, he would estimate that the condition 

existed from the previous shift. He arrived at this conclusion from 

reviewing the condition and from the statements that Mr. Greer made 

to him that he had informed the foreman on the previous shift about 

it the day before (Tr. 171-174). 

On cross-examination, Inspector Lyle testified that as he was 

crossing the unit, accompanied by Mr. Conrad Bowen, he observed the 

unpinned intersection, which was approximately 16 feet by 9 feet. 

The entry itself was pinned, but the area that was unpinned was at 

the edge of the crosscut. He did not observe any workmen in the area 

cutting, drilling, shooting, or preshift examining. Assuming the 

mining cycle had holed through the previous day, Hr. Lyle did not 

know whether the area would have been supported and then advanced 

beyond the place where the coal allegedly had fallen since there 

could have been a breakdown (Tr. 174-181). 

In response to questions f!:_om the bench, Inspector Lyle stated 

that he did not see any coal being cut in the entry, but coal was 

being run on the section, and there was no cutting machine in the 

Nos. 4 or 5 entries. Bolting had been accomplished beyond the area 

which involved the citation, and he received no explanation as to why 

the particular location cited was not bolted, but he ventured a guess 

that "they just forgot to bolt i.t" (Tr. 181-183). 

Re~ondent's Testimony 

James Greer, assistant mine manager, testified that he was the 

section foreman on February 16, 1977, and he confirmed the existence 

of an unpinned roof area, but stated that it was on the left rib by 

the break between Nos. 3 and 4, and not between Nos. 4 and 5. There 

were approximately three bolts missing, but the rest of the intersection was pinned. He testified that Mine Manager Bowen had just discovered the unpinned roof area and he was just ahead of the inspector 

looking for possible violations. Mr.· Bowen instructed him to bring in 

the roof bolter when Inspector Lyle arrived on the scene. The preshift report and a fire boss report of the 17 Northwest section for 

February 15 and 16 showed no indications of any unpinned areas. 

Mr. Greer denied telling Mr. Lyle that he had informed the previous shift foreman about the unpinned intersection. In explaining 

the fall of coal in the entry and the three missing roof bolts, 

Mr. Greer stated that could have been an overhang that the cutting 

machine or the dr1llman had either cut or shot off. In his opinion, 

it is possible for an overhang to .have been present and left up and 

still adwmce the entry, and this could explain why Mr. Lyle thought 

1164 
that the entry had been advanced. The fall of coal was directly 

across from the crosscut at the face o.f No. 3 (Tr. 181·-194 ). 

On cross-examination, Mr. Greer stated thnt he di.d not see any 

"No bolt" sigi1s in the area. He considers a dl.i.unmy top to be stable, 

especially when one take8 tests holes with a roof bolter and no cracks 

are shown. However, there is a difference between a drummy top and 

sound top; the sound is heavier on a sound top than on.a drummy top 

and a drummy top is more likely to fall than a sound top (Tr. 194-

208). 

In response to ~Jest.ions from the bench, Mr. Greer testj_fied that 

production was not stopped at the mine at the time the inspector cited 

the condition, nor was any closure sign put up. With respect to the 

inspector's testimony that he believed that the alleged violation 

occurred between the Nos. 4 and 5 entries, Mr.· Greer stated that no 

one supplied such informat:i.on to the inspector, that he confused the 

entries, and this was very easy to do. Thus, he and the inspector 

are actually talking about: the same alleged condition ·and the same 

area of unsupported roof (Tr. 210-211). 

Conrad Bowen 2 assis~ant mine s~rintendent, testified that he 

accompanied Inspector Lyle while he was on the section; however, he 

did not stay in Inspector Lyle 1 s presence all the time. Hr. Bowen 

found three bolts missing on the left rib going in the No. 3 entry 

and he instructed Mr. Greer to install them. Although he first testified that he did not see any "No bolt" signs, he later stated that 

there was such a sign. When he discovered the bolts were missing, 

M.r. Greer was approximately in the next intersect ion behind· him, 

together with Mr. Lyle. With respect to the condition of the niine 

top, Mr. Bowen stated that he has "seen a lot worse" and that the subject mine has the best No. 9 coal that he has ever seen. It was he, 

rather than Inspector Lyle~ who discovered the unpinned area. 

Mr. Bowen stated that according to the roof-control plan, it is 

not permissible to advance 10 feet inby a crosscut until it is opened 

for ventilation, and in his opinion, the fall was left there until the 

crosscuts went through and the unpinned area resulted when a sump 

machine was cutting a breakthrough. Once the breakthrough is made, 

and the feeder is in the next entry, the inby corner is cut off when 

one comes back through with a shuttle car. Sometimes, an outby corner is cut off in the next entry in order to allow the shuttle car to 

turn the curve easier. Since the intersection was pinned all the way 

through except for three bolts, he believes that it must have been cut 

from both sides (Tr. 213-220). 

On cross-examination, Mr. Bowen testified he tries to proceed 

ahead of an inspector so that if he sees any violations, he can have 

them abated before the inspector sees the conditions. He did not conceal the con<l:Lti.on from Inspector Lyle, but rather, gave instructions 

1165 
for the bolter to be brought in since they had an area \·Tith unsupported roof, and this was done in the inspector's presence. He did 

riot believe that the condition was a violation since· the "No bolt" 

signs we.re posted. If it had been a violation, the fire boss would 

have, in all likelihood, written it up in the preshift book. Since. 

the signs were posted, ~lr. Bowen d.id not write up the condition. 

Although the inspector described the unpinned dimensions as 16 feet 

by 9 feet, Mr. Bowen believed the area was 5 feet 5 inches by 8 feet, 

and if there were three bolts missing, approximately 15 feet of roof 

area was unsupported (Tr. 220-226). · 

In response to questions from the br,nch, Hr. Bowen testified that 

he did not feel that the unsupported roof was a violation because it 

was marked so that miners could see that it was unsupported, and, in 

the regular mining cycle, v..7hen the pinner comes in, he can pin it. No 

one is to work in an area past a sign or marker designating an unsup-. 

ported roof, with the exception of pinnermen. The signs used to designate non.bolted areas are approximately 10 to 12 inches long an.d 

approxim.o.tely 4 inches wide, and they are not red-tagged, dangered-off 

signs, but rather simply state "No bolts." Mr. Greer stated that he is 

familiar with provision 13(a) of the roof-·control plan which requires 

that a conspicuous sign be suspended from the roof, but that the provision did not come into effect until after the order was written. 

(The term "conspicuous sign" means a stick with fluorescent tape on 

it.) According to Hr. Bowen, however, on the day the citation issued, 

there was p:i:esent a sign to warn people that this was an unbolted 

area, but he did not point the sig;i. out to Inspector Lyle nor does 

he know whether'° Mr. Lyle saw the sign (Tr. 226-230). 

Petitioner's Rebuttal Testimonv 

In~cto~_~yle stated that approximately eight or nine roof bolts 

were missing from an area approximately 16 by 9. square feet. He did 

not see any conspicuous signs displayed, although such were required. 

If three roof bolts along one rib w~re missing in an ent-ry or crosscut which otherwise was adequately pinned according to the roof- . 

control plan, he would most likely have issued a 104(b) notice for a 

viola.tion of the roof-control plan rather than the lOl+(c) notice that 

he issued. He informed the mine manager and face foreman of the order, 

and prior to the tirne he examined the roof, he had not been informed 

by anyone from management of the condition. If Mr. Bowen had seen the 

condition prior to his observation of it, he did not realize it, and 

he confirmed he did not shut production down in the entire area and 

that he remained on the site until it was abated (Tr. 231-236). 

On cross-examination, Inspector Lyle confirmed the dimensions of 

approximately 16 feet by 9 feet, and stated that the 16-foot dimension 

would be from one rib of the crosscut in the direction of the other 

and th2 9 feet would be in the same direction as the crosscut. The 

ribs J.n a. c:rost>cu:: are approxir-..ately 20 feet across. He observed the 

1166 
.;~ 

unpinned area from under the bolted ::J.rea in the entry, and there were 

approximately eight bolts missing (·r-c. 237-242). 

In respon_se to _questions from the __ bench,' Inspector Lyle stated. 

that a sign previously referred to by one of the witnesses should have 

been at the edge of the unpinned area, rather than--OUt in the area, 

but that he did not see such a sign. It is acceptable mine practice 

to put up a white sign with red lettering on it that says "No bolts" 

whenever there is unsupported roof. The presence of a sign would not 

mean that there was no violation or that there was no hazard because 

the Ken No. 4 Underground Mine had a roof-bolting plan which required 

that all areas in the mine be bolted. If subnonnal conditions exist 

in a mine, then it is necessary to take steps other than the normal 

precautio.nary measures, ~·_g_., install longer bolts, cribs;. crossbars, 

etc. The discrepancy in the entry numbers can be attributed to how 

the crosscuts are numbered from left to right or right to left, and 

when he asked about the.entry, he was told that it was the No. 4 

entry, and the area he circled in his notes was intended as an 

approximation. He does not know how many bolts it took 'to abate the 

citation, since he did not count, but including the time it took to 

move the equipment over, it took about an hour to correct the condition (Tr. 244). 

Section lOL~(c)(2) Order No. 1 THL, February 28) 1977, citing 

30 CFR 75.301, states: 

The quantity of air reaching the last open crosscut 

between the intake and return pillars in the developing 

entries of the No. 5 unit, 2 nd S.W. was only 7,900 cfm 

during the production of coal when measured with an 

approved anemometer and smoke tube. Responsibility of 

Don Ramsey, foreman. 

Inspector Lyle testified he was accompanied on his inspection by 

Mine Manager Bowen and Section Foreman Ramsey. He issued the order at 

9:50 a.m. after he had observed and written up other violations, then 

proceeded to the track entry, and then to the No. 1 intake entry where 

he meas°ured the air. According to his measurements, the air in the 

intake in the connecting crosscut between the Nos. 5 and 6 entries on 

the return pillar sides was 11,780 cubic feet per minute. When he 

took the readings described in the order, he was in the connecting 

crosscut between the Nos. 5 and 6 entries on the return pillar side. 

When he reached the crosscut, he took three air readings with his 

anemometer and found the air to be below 9,000 cubic feet of. air. The 

first reading, which was taken along the center of the crosscut, measured 6 ,840 cubic feet per minute, the second reading was 5, 700 cubic 

feet per minute, and the third reading was 7, 125 cubic feet per minute. The variations in the anemometer readings are explainable by the 

fact that coal production was going on at the time and curtains were 

being fanned and moved around so that air was moving up and down. At 

1167 
the time he took the readings, there was measurable dust in the air 

in the crosscut, but he did not know how much. He was particularly 

interested in the air at the mine because there was a continuing problem with maintaining sufficient minimum air requirements, and he had 

previously written several violations at the mine regarding the sufficiency of air. Further, an inspection team from Arlington had visited 

the Ken No. 1+ Underground Mine and had stated in their report that the 

mine was operating on marginal air. 

In addition to taking readings with the anemometer, Inspector 

Lyle testified that he took three smoke tube readings of the area. 

He obtained a reading .of 7, 600 cubic feet of air on the first smoke 

tube reading~ 7,410 cubic feet of air on the second, and 7 ,885 cubic 

feet of a-i.r on the third which he cited as 7, 900 cubic feet (and 

which was the highest air reading). No one assisted him in taking 

either the smoke tube readings or the anemometer readings. Section 

75.301 requires that the minimum quantity of air reaching the last 

open crosscut in any pair or set of developing entries in the last 

open crosscut and any pair or set of rooms shall be 9 ,000 cubic feet 

of air per minute (Tx·. 249-260). 

Inspector Lyle considered the violation to be serious because the 

low air readings had to affect the air at the working face. He cited 

a violation at the No. 5 face for low air readings some 20 minutes 

earlier. He thane could build up and not be swept away, and the mine 

was under a section 103(i) inspection requirement. He believed the 

operator was aware or should have been aware of the condition because 

of the continuing vent:i.lat:i.on problems and mine management had discussed the possibility of putting in additional raise holes to 

to improve ventilation. The unit was subsequently abandoned after 

abatement was achieved because of ventilation problems (Tr. 260-269). 

On cross-examination, Inspector Lyle confirmed that the air reading on the intake- side was 11,780 cfms (Exh. G-19). He also confirmed 

that he took three air readings in all, and when he tool<. the first 

reading, he informed respondent that according to his anemometer, the 

amount ~f air present was low. The first reading was taken in a traverse fashion, .!..·~·, he went from one rib to the other rib in a back 

and forth manner. With respect to the second reading, which was taken 

approximately a quarter of the way in between the crosscut, he took 

it in the traverse style. When he took the third reading, he backed 

up to past half of the entry, to the center part of the area. 

After he took the three readings and calculated that he did not have 

sufficient air~ he then took three smoke tube readings. He performed 

the calculations on paper (Exh. G-20), the same day that he took the 

readings, rather than at a later date. The correction factor that he 

used on his anemometer was 20 percent, and he calculated the area of 

the intersection with a tape l:i.ne (Tr. 274-288). 

1168 
In response to questions fro:n the bench, Imipector Lylo. testif"led 

that he 11~<l-i~1<licated on r&'hnit c;·.:-.I9- that-t-her.e were 11,1so c£ms of 

air coming in the intake. After the line curtai.n was insta.lled, the 

highest reading that he came up with was 7 ,885 cubic feet. He does 

hot know what was causing the low air n~ading at that point because 

at the time he was· tak.ing air readings :Ln the last open crosscut, the 

operator was working on the problem. When the air came up to above 

9,000 cfms, he abated the notice. He did not find any signi.ficant 

amounts of methane; and lwd he found such, he would have issued 

an imminent danger order (Tr. 289-293). 

Respondent's Testimony_ 

Dona.ld Ramsey testified that he was working as the for~man on the 

2 Southwest, N0.-5 unit, on the day shift on E'ebn:ary 28, 1977, and 

first met with Inspe<'.tor Lyle at the transformer Hhere the inspector 

was checking for violations. after which they then went to the face 

area where coal was being loaded, and the loader opc.rator appeared 

and told him that he had torn down part of the check curtain and that 

he needed a hammer to repair it. His helper was coming across from 

behind hlm with a hammer and he helped him repaiJ~ the curtaino During this time, Inspector Lyle was in a stationary position ta.king an 

air reading in the last open crosscut, approximately 80 feet away on 

the other side of the loader, but he was not taking a traverse reading. The curtain was down, but was repaired within 2 or 3 mi nut es, 

after which time Inspector Lyle advised him that he did not have 

enough air, and in Mr. Ramsey's opinion, the air reading that Inspector Lyle based that statei:ient on was taken when the curtain was down 

(Tr. 294-300). 

At the time Mr. Lyle ordered the unit closed, there were 8 to 

12 men working inby the last open crosscut, and the check curtain 

was down for approximately 5 minutes. Some of the common causes of 

check curtains being torn dovm c::re blastin~ or shooting coal down, 

which, in turn, tears them down, and people walking under the.m. The 

general rule is that if s01neone tears d.own a check curtain, he puts 

it back up, and the loader- operator that he encountered was looking 

for a hammer (Tr. 302-·308). 

On cross-examin~tion, ~1r. Ramsey stated that although he does not 

remember going to the intake with Insp2ctor Lyle, he remembers walking 

across crosscut Nos. 4, 5 and 6, but he does not n~member whether any 

violations were cited at the time. He confirmed that a 104(b) notice 

was issued the same day, citing a violation of 75.302-1 for failure to 

provide a line brattice on the face of the No. 5 entry where coal was 

being loaded, but he remembers it being the No. 6 unit rather than the 

No. 5, and recalls that the line curtain was down several times that 

morning. He accompanied Inspector Lyle across face Nos. 4, 5 and 6 

and although the inspector. states in his order that he took both anemometer and smoke tube readings at the face, he does not recall any 

1169 
smoke tube ·readings having been made by the inspector at unit No. 5, 

although he remembers that the inspector took two anemonk~ter readings 

at the face (Tr. 308-315). 

Mr. Ramsey indicated that after Inspector Lyle informed him that 

the air content was low, he went to the intake entry and took his own 

air reading, after which he returned to the No. 5 unit, where the 

inspector was. Mr. Ramsey did not take an anemometer reading in the 

No. 5 crosscut because he did. not think it was necessary since he 

knew he did not have sufficient air because the loader had torn the 

curtain down. Although it took 2 to 3 minutes to rehang the line 

curtain, and the inspector told him that he then had sufficient air, 

Hine Manager Brown decided to close the unit down because it was slowing production to keep 3 ,000 ·cubic feet of air at the face and putting 

9,000 cfrus out in the other area. He did not question Mr. Brown's 

decision to shut down the unit, and he does not recall how long the 

unit was abandoned (Tr. 316-329). 

Inspector Lyle was recalled in rebuttal and testified that after 

he issued the order, he continued to take air readings in the last 

open crosscut. He then walked around to the return side in order 

to check to see if they had their stoppings up as required by the 

ventilation plan which calls for permanent stoppings up to and 

including the third open crosscut outby the face. He walked back 

up to the No. 5 entry and checked to see if they had a block curtain 

up in the back part of the entry. He continued to take air readings and when the air increased to 9,600 cfms, he abated the order at 

10:30 a.m~, after which time the unit was abandoned. The line curtain had be8n replaced when he started taking his first air readings. 

In his opinion, the cause of the low air was not the check curtain, 

but resulted by the operator trying to course the air through the 

mine around falls because the mine was in dire need of an air shaft 

o".' the boring of a hole of some kind to provide better ventilation 

(Tr. 336-338). 

In response to questions from the bench, Inspector Lyle stated 

that the other two citations that he issued (Exhs. G-21 and G-23) were 

both abated prior to the subject order. Although Mr. Ramsey testified that they were loading coal in both entry Nos. 5 and 6, Inspector Lyle testified that this was not true since it was not permissible 

to have two loaders on a section loading in the same entries or adjacent entries. It was actually the No. 3 entry that was being loaded 

and the No. 5 entry is the one he cite~. Inspector Lyle also stated 

that he asked Mr. Ramsey what the number was of that particular entry 

and Mr. Ramsey told him that it was No. 5. He further stated that he 

took his air· readings between Nos. 5 and 6 on the return side and that 

there a·re no other entries past the No. 6 entry (Tr. 339-340). 

1170 
Section 104(c)(2) Order No. 1 TML, March 1, 1977, 30 CFR 75.301-1 

The quantity of air reaching the No. 5 entry (crosscut to the left) working face where coal was .being loaded 

by T. C. Williams with a Joy loading machine was insufficient enough to measure with an approved anemometer or 

smoke tube during the loading cycle on No, 6 unit (ID 029) 

3rd S.S. Responsibility of Pat Sturgill, foreman. 

Petitioner's Testimony 

Inspector Lyle testified that in addition to the subject order, 

he issued other notices of violation that day.·· He issued the subject 104(c)(2) order for failure to maintain sufficient ventilation 

while loading coal, and there was no curtain present while the loading was being done. He started to take air readings, but could not 

get his anemometer to work on either one of the rib lines or out in 

the entry, despite the fact that the ane.n:ometer was functioning. He 

then tried four or five times to take a reading with a smoke tube but 

could not get any measurement of smoke traveling and he then concluded 

that there was not sufficient ventilation or perceptible air movement 

to be measured with an anemometer or a smoke tube. While he was taking the tests, the men had stopped loading (Tr. 343-348). 

Inspector Lyle considered the violation to be serious, and he had 

previously written a notice for failure to use water to keep the dust 

down to minimum and allowable limits. Since there was no curtain to 

course the ventilation into the working face and there was no percep'""' 

tible air movement, if methane had been encountered, along with excessive dust, a serious methane ignition and dust explosion could have 

resulted. In his opinion, the operator should have been aware of the 

condition because a foreman is present on the section at all times and 

it is his duty to operate the unit and to insure that a minimum of 

3,000 cubic feet of air is maintained at the face whenever coal is 

being cut, mined or loaded. It was visibly obvious that there was not 

a sufficient amount of air (Tr. 350-352). When he first walked into 

the entry, the loader operator was there with the loading machine, and 

no wing curtain was installed. Had a face ignition occurred, he estimates that at least 12 men would have been exposed, .since there are 

approximately 12 men on a section (1'r. 353). 

Respondent's Testimony 

Mr. Pat Sturgill, day shift section foreman, 3 Northeast section, 

testified that the wing curtain was takei1 down in order to clean the 

ribs approximately 4 or 5 minutes before Inspector Lyle walked past 

the area. He does not know specifically whether Inspector Lyle saw 

Mr. King tear down the curtain, but he does not know how Inspector 

Lyle could not help but see it. To the best of his recollection, 

Inspector Lyle did not tell him that he was issuing a citation 

1171 
because a loader WAS loading without a wing curtain. being installed 

until the curtain was torn down for the loader to back up and clean 

the roadways and the ribs. The purpose of teari11g the wing curtaln 

down that day was to clean the ribs, which is a normal practice. If 

the wing curtain is left up while a man is shoveling behind it, he 

cannot be seen, and he has to throw the debr:Ls ·far out so that the 

loader can pick it up on its next cycle. The curtain was down for 

5 or 6 minutes, and !>1r. Lyle took an air reading while the curtain 

was down. When the loader finished cleaning up the rib area, the 

curtain was hung and another air reading was ta1'..en by the inspector 

(Tr. 358-366). 

Qn cro~s-:.'=.xa_E:tj_nati.on, Mr. Sturgill stated that Inspector Lyle 

never informed him that he was issuing the violation, and Mr. Sturgill 

believes that since the curtain is normally supposed to be up, except 

when the ribs are being cleaned, that the inspector happened to see 

the curtain down and then cited the condition, not realizing that they 

were in the process of cleaning the ribs. He does not believe that 

the requirement in 75.301-1 of maintaining 3,000 cfms is unreasonable, 

but in his opinion, it is not a hazard if an operator is loading coal 

at the face and is unable .to measure any perceptible air movement 

because the ribs would prob::ibly have been cleaned by shovel if he had 

found methane on hls section (Tr. 367-378). · 

Insp<;ctor. Lyle was called in rebuttal and stated that he never 

saw a wing curtain being taken down, and he disagreed that it is 

neccs·sa:cy to take down curtains in order to clean faces or ribs. It 

is permissible to move a curtain to the other side so long as the 

requisite amount of air is maintained according to the law, and he 

is unaware of any pennitted exceptions. In order to abate the cited 

condition, a curtain was obtained and extended into the area up to 

within 10 feet of the face, after which he took air readings (Tr. 

379-384) • 

.!!!__re~onse to que~tion~ frol_'.!__!pe_b_ench, Inspector Lyle testified 

that the notice he issued. at 11:25 for lack of a line brattice, and 

the notice he wrote at 11:30, pertained to the No. 5 entry crosscut to 

the left where coal was being loaded. · Ther<:!. is a relationship between 

the two notices, since without the line brattice or wing curtain, the 

required 3,000 cubic feet of air could not be coursed in where coal 

was being loaded. In effect; the failure to have the line brattice 

generated two citations, i.e., the notice and the order, both of 

which stemmed from the sa;e-condition. He confirmed Mr. Sturgill 's 

testimony that wing curtains are frequently taken down to facilitate 

the cleaning of the ribs, rather than taking the risk of having the 

curtain torn down. However, he does not know of any :i.nspector in the 

District 10 Office that would allow this practice· (Tr. 385-389). 

1172 
Section 104(_c.)(2) Not.ice No. 2 TML, March 1, 1977, 30 CFR 75.301-1 

The qlk'lntity of air reaching the end of the line 

brattice where coal was being cut with a Joy cutting 

machine by Mike Foster was measured to be only 

1,748 cfms with an approved anemometer and smoke tube 

in the No. 2 entry working face crosscut to the left 

on the No. 6 Unit (ID 029) 3rd S.E. Responsibility of 

Pat Sturgill, foreman. 

Petitioner's Testimony 

Inspector Lyle testified that some time after he had issued the 

104(c)(2). order for the inadequacy of air with the loading machine, 

he proceeded back across the run and observed the Joy cutting machine 

being operated in the face, cutting coal while the line curtain was 

20 feet outby the face area where the me.chine operator was cutting. 

He then issued a 104(b) notice to the operator for having an 

inadequately-installed line brattice which did not reach up to and 

within 10 feet· of the working face where coal was being cut, mined or 

loaded. After taking air readings, he then issued the 104(c) (2) order 

for a violation of section 75.301-1, since the air measurement vas 

only 1, 748 cfms. He took three anemometer readings and two smoke tube 

readings which he recorded. The aneiaom0ter readings were 1, 26 0 cf ms, 

1,300 cfms and 1,380 cfms. The smoke tube readings were 1,764 cubic 

feet per minute and 1, 731 cubic feet per minute. He put the figures 

together and averaged them out to be 1,71+8 cubic feet per minute, 

while the statutory requirement is 3 ,000 cubic feet per minute (Tr. 

410-Lfl2). 

With respect to the seriousness of the violation, Inspector Lyle 

testified that he would classify it on the same level as the other 

violations previously dealt with. If there was a pocket of methane 

gas, without the proper amount of air, there could be an ignition or 

a mine explosion. He reiterated his previous statement that the· · 

mine was somewhat lacking in air and was in dire need of much better 

ventilation. The inspector took methane readings, but he did not 

find any methane. As far as negligence is concerned, he believed 

that the operator should have known of the condition since he had 

issued an order for another sirailar violation 30 to 40 minutes 

earlier. Mr. Sturgill, the section foreman, was accompanying him 

when he issued the subject order and took the measurements (Tr. 413-

415). 

On cross-examination, Inspector Lyle stated that there was confusion in the mine when he issued the order, since the opera tor and 

his employees were not very happy about the order and they were arguing, but he is not certain whether Chester Waters was with him. The 

cutting machine operator had probably taken his second cut out, but he 

does not know how far down tlv; entry had been advanced (Tr. 417-1~21). 

1173 
Respondent's Tes~imony 

Mr. Sturg~ll testified that he and Inspector Lyle were leaving 

the area of the previous violation and were heading tow;i.rds No. 1. 

There was a coal drill in No. 4, drilling coal and Inspector Lyle 

took a re<idi ng in that area and got a m2asurement at the coal drill 

of 8,000 cubic feet. The machine stopped at the face and Inspector 

Lyle measured a1.;,1 got 2. reading of l_, 700 cfms, and advised him that he 

would have to hang a wing curtain across the machine in front of a particular roof bolt and he told the inspector "that is in front of the 

cutterman right here and I've stopped the face" (Tr. 428). After the 

curtain had been hung over the cutter, the inspect-or took another air 

reading which proved to be sufficient and then told him to proceed. 

They held the curtain up and the cutter proceeded to cut coal. According to Mr. Sturgill, it was. foolish and dangerous to .hold the curtain 

up since the cutter bar could have pulled the men holding the curtain 

into the cut ting machine by catching the· curtain, and he feels that he 

should have pulled the cutter out and gone to another place (Tr. 422-

lfJl). 

Mr. Sturgill further testified that on the day the notice issued, 

the wing curtain was positioned in the correct position, i.e., in 

back of the cutting machine and that the air was sufficie;:t-because 

he was not working at the face of the entry, but at the face of the 

crosscut. The regulation requires that there be 3,000 cubic feet 

of air at the back of the equipment, 10 feet from the working face. 

After Inspector Lyle told Mr. Waters to hang a wing curtain across the 

cutter bar, Mr. Waters and the inspector had a few \vords about the 

inspector's order, and Hr. Waters told the inspector that he was just 

nitpicking. In his 30 to 31 years' experience in mining, he has never 

before hung a wing curtain over a cutting machine that was running. 

After Inspector Lyle left, he did not return the wing curtain over the 

cutting machine, but rather tore it down and continued on with the 

cutting (Tr. 431-434). 

On cross-examination, Mr. Sturgill testified that despite the 

depiction of the cutter in Exhibit R-10 as occupying approximately 

80 feet of the entry, the cutter was not in the middle of the entry. 

No crosscut at all had been driven at the time since the cutter was 

in the process of taking its first cut. He agrees that 3,000 cfms 

are required at the working face, however, he maintains that he had 

8, 000 cf ms in the crosscut where he was working and stated that the 

reason the inspector got a measureI'JBnt of 1,700 cfms is because he 

did not measure where the cutting was actually being done, i.·~·, at 

the working face, but rather, he measured above where the cutting 

was being done inby (Tr. 434-440). 

Mr. Chester Waters, inine manager at the Ken No. 4 Underground 

Mine", testified that on March 1, 1977, he was the assistant mine 

foreman on the day shift, that he was present on the section during Inspector Lyle's entire inspection, and that he went ahead of 

1174 
Mr. Sturgill and Mr. Lyle. The wing curtain was up within 10 feet of 

the working face. He took an air measurement: in excess of 5,000 cfrns, 

and since he b.-:~lieved he was in compliance with the law, he gave the 

cutter operator the go-ahead to commence operation with the first cut. 

Inspector. Lyle and Mr. Sturgill then approached the cutting machine, 

and Inspecto'r Lyle informed. him that he did not have the wing curtain 

to within 10 feet of the face, and he then went around the cutting 

machine and imrked the roof bolt where he wanted the wing curtain 

advanced. At the time, the inspector was referring to the face of the 

entry, but the actual working face was the crosscut. Mr. Waters testified that he told Inspector Lyle that he was nitpicking and that they 

were not in violation of the law. In order to aba.te the comli.tion, 

the wing curtain was advanced to the location indicated by Mr. Lyle so 

that the proper amount of air was achieved. However, in ~fr. Waters 1 

opinion, . the abatement was done in a dange1·ous way since holding the 

curtain up restricted the visibility of the cutter operator. In his 

mon~ than 20 years in the mining industry, he has never before or 

since that time, seen a curtain held up while the cutter opera tor cuts 

coal. In his opinion, this practice is not safe since no men should 

be around the cutter except the operator, because of the possibility 

of being crushed and injured by the cutter. He believes that there 

was ci s•.: C:ficient amount of air and the correct position of the wing 

curtain that cby w3s where it was located when Inspector Lyle first 

observed it, i.e., within 10 feet of the working face or the crosscut 

which they were-working (Tr. Lf41-L:.48). 

On cross-examination, 

Mr. Waters testified that he took one air reading with an anemometer that he had borrowed from Hr. Sturgill, and using a tape 

line he calculated the measurement in his head. After Inspector 

Lyle verbally issued his order, he remained on the scene until 

it had been abated, after which time, he left with Inspector Lyle 

(Tr. 451-:452). 

Inspector Lyle was recalled in rebuttal and stat;ed thi:..t although 

he has no reason to doubt that Mr. Waters did take an air reading, 

his notes indicate that Mr. Waters did not have an anemorneter. The 

working face is wherever coal is being cut, mined or loaded. He took 

his air reading at the end of the line ('.urtain, just inby the end of 

the line curtain. He arrived at the calculation of 1,7.00 cfms based 

on the location of the iine curtain as being 3 feet from the rib and 

the _<lpproximate distance of the roof as being 5 feet high. He does 

not think tha:t it is possible that he took his air reading on the other 

side of the cutter up in the corner of the entry since had he gone 

around and taken a reading where there was no curtain to direct the 

air, he would not have been able to record any reading because the air 

would have to have come out the end of the curtain which was 3 feet 

wide, 3 feet out from the rib, and 5 feet high, and then dispersing 

with a 20-foot-wide area. In addition, the air would have to get by 

1175 
the cutting machine itself as well as go over the top of the cutting 

machine. According to the inspector, the only pface that it would 

have been possible for him .to have come up with a correct air reading 

would have been at the line curtain where he distinctly recalls having taken the reading (Tr. lf52-460). 

With respect to whether or not he directed management to have a 

line curtain over the cutting machine, Inspector Lyle testified that, 

as a policy, he does not direct management to do anything. He simply, 

writes a notice of violation that requires that management abate a 

violation of the law. In order to abate the violat.ion, the line 

curtain was extended up to with:ln 10 feet of the crosscut to the 

left, and to his knowledge, it was never ex.tended over the cutting 

machine (Tr. 460-Lf61). 

The original not ice citing the line curtain as being more than 

10 feet from the face concerns the same line curtain as in the subject order which was issued for lack of air at the same working face. 

When the first lOl+(b) notice was abated and the line curtain was 

extended up to within 10 feet of the face, the air ca.me up. Had the 

curtain been extended over the cutt:ln2; machine up to the problem area, 

it would have been inby the working face (Tr. li-61·-463). 

Findings and Conclusions 

Order N0. 1 TML, December 20, 1976, 30 CFR 75.402 

Fact of Violation 

Respondent argues that the inspector issued this citation because 

of his dissatisfaction and dislike for the method of wet rock dusting 

utilized by the respondent in its mine. Respondent asserts that it 

had rock dusted the roof and ribs to withi.n a few feet of the working face and had dry rock dusted the floors to approximately 'vithin 

20 feet of the working face (Tr. 19-20, 71-72, 121, 150-151). 

With regard to the samples taken by the inspector, respondent 

asserts that since the inspector took only three band samples over an 

area described as being inadequately rock dusted and which encompassed 

six entries in width and a length or di.stance of 150 feet, their 

reliability as true indications of the rock"'."dusting condition on the 

section is open to serious question. Further, respondent argues .that 

the inspector's judgment was colored. by the _fact that he did not 

believe that wet rock dusting met the requirements of section 75.402, 

and that he therefore did not take true representative rock-dust band 

samples in the section. Finally, respondent asserts that although the 

inspector testified that he was not. accompanied by a company representative the entire time he was on the section, one of respondent's 

witnesses (Large) testified he accompanied the inspector the entire 

timc> that he ,;as on i.:he section and did not observe him take a rockdust band sample, and a second witness (Stewart) testified that the 

1176 
inspector was in his presence continuously from the time he came to 

the face until he left the section and that he never observed him 

take a rock-dust band sample. 

In support of the citation, petitioner relies on the testimony of 

the inspector, including his description of the procedures used to 

take the band samples, the laboratory results of the sampling, and the 

detailed n.otes and sketch of the scene made by the inspector at the 

time· the citation was issued. As for the use of wet rock dust, petitioner argues that the definition of "rock dust" set forth in 30 CFR 

75.2(d) differs both in composition and in usage from the wet dust 

which the respondent believed was adequate to compiy with section 

75.402. 

With. regard to the ·inspector's sampling, petitioner asserts that 

no witness offered by the respondent could testify to more than the 

fact that they did not personally~ the inspector take the samples, 

and that the inspector repeatedly testified, as was adntltted by the 

respondent's witnesses, that they did not accompany him at all times 

while he was inspecting the section. 

Respondent is charged with a violation of section 75.402, which 

states that: 

All underground areas of a coal mine, except those areas 

in which the dust is too wet or too high in incombustible 

cont·ent to propagate an explosion, shall b.e rock dusted to 

within 40 feet of all working faces, unless such areas are 

inaccessible or unsafe to enter or unless the Secretary or 

his authorized representative permits an except:i,on upon his 

finding that such exception will not pose a hazard to the 

miners.; All crosscuts that are less than 40 feet from a 

working face shall also be rock dusted. 

The statutory de.finition of the term "rock dust" is found at 

30 CFR 75.2(d), and it is defined as follows: 

"Rock dust" means pulverized limestone, dolomite, 

gypsum, anhydrite, shale, adobe, or other inert material 

preferably light colored, 100 per centum of which. will 

pass through a sieve having 20 meshes per linear inch 

and 70 per centum or more of which w:i,11 pass through a 

sieve having 200 meshes per linear inch; the particles 

of which when wetted and dried will not cohere to form 

a cake which will not be dispersed into separate 

particles by a light blast of air; and which does not 

contain more than 5 per centum of combustible matter or 

more than a total of 4 per centum of free and combined 

silica (Si02 ), or, where the Secretary finds that such 

silica concentrations are not available, which does not 

1177 
contain more than 5 per centum of free and combined 

silica; 'ic * *· 

The June 1974 edition of the Inspector's Manual, published by 

MSHA's predecessor MESA, and which contains guidelines for inspectors and the coal mining industry, contains the following information pertaining to the use of wet rock dust in a mine: 

AEJ?lication of rock wet dus1=_. So long as the percentages of incombustible content specified in 75.403 are maintained, rock dust may be applied wet in the f911owing manner: 

Wet rock dust shall be limited to rib and roof surfaces in 

face areas; It shall not be used for redusting mine surfaces; in such applications, only limestone or marble dust 

which meets the specificntions contained in Section 75.l(d) 

shall be used; the application shall be at the rate of not 

less than 3 ounces (weight) of dust per square foot of surface, and shall be by a mixture of not more "than 6 to 8 gallons of water with 100 pounds of dust, whether by premixed 

slurry or by mixing at the nozzle of a hose to assure that 

the mixing is not too fluid and that sufficient dust 

adheres to the surfaces• After the wet rock dust dries, 

additional dry rock dust shall be applied to all surfaces 

to meet applicable standards. Wet rock-dusting of ribs 

and roof does not eliminate the necessity for dry rockdusting the floor. 

In one of the earlier cases litigated under the 1969 Act, Valley 

Camp Coal CompaE.Y., 1 IBMA 243, 246 (1972), the former Interior Board 

of Mine Operations Appeals observed as follows ·~1hen commenting on the · 

intent of the statutory rock dust requirements found in sections 

304(c) and (d) of the Act: 

The above sections should be construed as a whole. 

Their purpose is to provide an incombustible atmosphere in 

most underground areas of the mine so that, if ignition 

occurs, the dust will not propagate an explosion. When 

read with this community of purpose and subject matter, 

sections 304(c) and 304(d) require operators to rock dust 

every crosscut as well as other areas of the mine beyond 

40 feet of working faces> unless s.uch areas are naturally 

too high in incombustible dust content to propagate explosions, too wet to propagate an explosion, inaccessible, 

unsafe to enter, or have been excepted from the requirements by the Secretary or his authorized representative 

in accordance with section 304(c). Section 304(d) does 

not define the level of incombustibility that is "too 

high to propagate an explosion," but, when read as a 

whole, this level is defined by section 304(d). 

1178 
It seems obvious from the evidence presented that the wet rock 

dust applied by the respondent did not meet the definition set forth 

in section 75.2(d), which states that such rock-dust particles be of 

such a constistency "which when wetted and dried will not cohere to 

form a cake which will not be dispersed into separate particles by a 

light blast of air. 11 As a matter of fact, respondent's own witness, 

Face Foreman Stewart, when·testifying that it is impossible to take 

a rib or roof sample with a brush in an area which had been wet 

dusted, indicated that one would have to chip off some of the rock 

dust with a hammer. 

On the evidence adduced here, I find that the inspector's interpretation with respect to the use of wet rock dust as a means of compliance with section 75.402 is correct. The wet rock dust apparently 

being used by the respondent obviously did not meet the statutory 

definition, .and respondent has presented no credible evidence to the 

contrary, nor has respondent offered any statutory or regulatory 

authority which authorizes the use of wet rock dust to gain compliance with section 75.402. Although I recognize the fact that section 

75.402, on its face, does not prohibit the use of wet rock dust, when 

read together with the statutory definition of the term "rock dust," 

I cannot conclude that the petitioner's int·erpretation and application of section 75.402 on the facts and circumstances presented here 

was unreasonable or incorrect, and respondent's posthearing arguments 

do not persuade me to the contrary. 

The next question presented is whether the petitioner has established by a preponderance of the evidence that the area cited by the 

inspector had not been rock dusted to within 40 feet of the working 

faces as required by section 75.402. Simply stated, respondent takes 

the position that it met the requirements of section 75.402 by applying wet rock dust to the area cited. Petitioner's position seems to 

be that the use of wet rock dust not meeting the statutory definition 

is akin to not using rock dust at all. I conclude and find that the 

petitioner has·the better part of the argument and that the testimony 

and documentation of the condition as articulated by the inspector 

supports the order which he issued. 

With respect to the inspector's sampling procedures, and particularly respondent's attack on his credibility, I reject respondent's 

assertion that the inspector somehow misinterpreted.the fact that he 

took samples. A careful review of respondent's testimony reflects 

that Fc:ce Foreman Stewart and Mine Manager Large did not see the 

inspector take samples, and while respondent's posthearingarguments 

suggest that the inspector was never out of the sight of Mr. Stewart 

and Mr. Large, that is not the case. The inspector had ample opportunities to take his samples, and 1 find his testimony and notes made 

at the time of the inspection to be credible. Further, respondent w.as 

free to take its own samples, but apparently did riot do so. 

1179 
In denying that the 150 feet described by the inspector was white 

in color, Face Foreman Stewart stated that this was not so becaus<=~ the 

three entries had been driven a week before the inspector and had been 

rock dusted "a long ti.me ago." Thus, Mr. Stewart's testimony lends 

credence and support to the in~pector's testimony. If the entries had 

been previously driven and rock dusted even earlier, the subsequent 

mining activity which took place after those events obviously affected 

the condition of the section on the day of the inspection. Further 

support for this conclusion may be found in Mr. Stewart's candid 

admission that dry reek dust was not used because production would 

have to stop. Placing coal production ahead cf adequate rock dusting 

simply should not be permitted. 

I conclude and find that petitioner has established a violation 

of se~tion 75.402 as charged in the order and it is AFFIRJ.'1ED. 

Negligence 

Although respondent may have believed that wet rock dusting met 

the requirements of section 75.402, I am not convinced that mine management was completely oblivious to what was required to meet the 

rock-dusting requirements of that section. Hr. Large's testimony 

reflects his concession that certain areas were not rock dusted, that 

the area could have been dusted better, and he apparently was aware 

of the differences between the rock:-dusting requirements of section 

75.402, and the provisions of section 75.L~Ol which permit the use of 

wetting agents at the face. Further, the extent of the area involved, 

some 150 feet, convinces me tha.t the respondent failed to take reasonable care to insure that the area cited was properly rock dusted. I 

find that the condition cited resulted from the respondent's ordinary 

negligence. 

Gravity 

Failure to rock dust in an area where coal is being mined presents a hazard of fire or explosion. Considering the extent of the 

area which was not rock dusted, and the results of the inspector's 

sampling for incombustible content, I conclude and find that the 

violation was serious. 

Go6d Faith Compliance 

Exhibit G-3 reflects that the order was terminated at 9: 30 a .m., 

the day after it issued, after the area was adequately rock dusted. 

Further, respondent's testimony reflects that rock dusting was 

accomplished at the beginning of the next production shift after the 

order issued at 7 p.rn. on December 20. In these circumstances, I 

find that.the respondent demonstrated good faith compliance in 

correcting and abating the conditions cited. 

1180 
Order No. 1 TML, February 16, 1977, 30 CFR 75.200 

Fact of Violation 

Respondent docs not dispute the fact that th~re was an area of 

unsupported roof as described by the inspector in the order citing 

a violation of section 75.200. As a matter of fact, during the course 

of the hearing, respondent's counsel did not dispute the existence of 

some unsupported roof area, and conceded that the fact that the inspector may have been mistaken as to the numbering of the entries was not 

unusual since someone may have honestly and mistakenly given him the 

wrong entry numbers (Tr. 199). 

The thrust of the respondent's defense to the violation is the 

assertion that the unsupported roof condition was first discovered 

by the mine manager, that the size of the unsupported area was 

approximately 15 square feet, that only three bolts were missing, 

and that the area had been posted with a "No bolts" sign. Since the 

area was posted and no one was working there, respondent argues that 

no violation occurred since the area would have been supported in the 

regular work cycle. 

Petitioner argues that respondent admitted the roof was unsupported and the fact that a ·danger sign was put up is no defense. 

I find that the evidence adduced with respect to the violation 

supports the action taken by the inspector and establishes a violation of section 75.200 as stated in the order. The applicable roofcontrol plan (Exh. G-9 at p. 6, item 13), provides in pertinent part 

that "[.B] efore side cuts are started, the roof in the area from which 

it is turned shall be supported with perm.anent supports according to 

the approved plan; * * *·" It is clear here that one side of the 

intersection at the connecting crosscut in question had not been 

bolted as charged. in the order. And, the fact that mine management 

may have discovered the condition before the inspector did and began 

abatement is not material to the fact that the condition cited did 

in fact exist and that it constituted a violation of the roof-control 

plan, a.nd consequently, a violation of section 7 5. 200. The order is 

AFFIRMED. 

Gravity 

Although the inspector saw no coal being cut in the entry or a 

cutting machine in the entries, coal was being ru..'1. on the section and 

the roof had been bolted in the area beyond the cited unsupported roof 

area. The inspector believed the condition existed for at least 

one shift and men were working in the section. Although there was a 

dispute as to the extent of the unsupported roof area and the number 

of roof bolts which were missing, the fact is that the area cited was 

unsupported and posed a roof-fall hazard. I conclude and find that 

the violation was serious. 

1181 
Neglil2_~ 

Although Assistant Mine Superintendent Bowen testified he found 

the missing bolts just before t·he inspector arrived at the intersection, I believe that a proper preshift inspection by the section 

foreman or his crew should have discovered the condition sooner, 

particularly on the facts prescuted here where the inspector indicated that the area beyond had been bolted and that the condition 

existed for at least one shift. Further, since the respondent maintains that the area was pos.ted with a "No bolts" sign, which was not 

observed by the inspector, leads me to conclude that someone might 

have been aware of the missing bolts before Mr. Bowen arrived at the 

scene. In the c ircumstal'.).ces presented, I cone iude ·and find that the 

respondent failed to exercise reasonable care to prevent the condition cited and that this constitutes ordinary negligence. 

Good Faith Compliance 

The abatement notice reflects that the condition cited was immediately corrected.and that the order was abated in approximately an 

hour after it was issued (Exh. G-11). I find that the respondent 

exerci~ed good faith in abating the condition which was cited in the 

order in question. 

Order No. 1 TI1L, February 28, 1977, 30 CFR 75.301 

Fact of Violation 

Respondent does not dispute the inspector's low air reading of 

7, 900 cfms i.n the last open crosscut at the location described in his 

order. In defense of the condition cited, respondent asserts that a 

technical violation occurred only after the loader operator inadvertently knocked down a check curtain, and that the loader operator and 

a helper were in the process of obtaining a hammer to replace the 

curtain when the inspector entered the last open crosscut and took 

his iir readirig. Since the only thing done to abate the violation 

was the rehanging of the ch~c-k curtain. which had been knocked do\<m 

and the checking of another curtain that was loose, respondent asserts 

that- it would have had the required amount of air were it not for the 

knocked down curtain. 

With regard to the inspector's air readings and measurements, 

responde.nt, both during the hearing and in its posthearing brief, suggested that the inspector's air reading computations and calculations 

as set forth in Exhibits G-20.and G-33 were fabricated. 

Petitioner argues that the inspector's testimony, notes, air readings,· and cal~ulations concerning the lack of a sufficient quantity of 

air at the location cited all support the order. Further, petitioner 

points to the fact that respondent's own witness admitted that the air 

1182 
was insufficient, that securing adequate ventilation was a continuing 

problem on the section, and that the section was shut down the day 

after the order issued by the mine manager due to the inability to 

maintain sufficient air at the working faces (Tr. 265, 266, 321--328). 

As for the respondent's attack on the inspector's credibility 

surrounding the preparation of Exhibits G-20 and G-33, petitioner 

states that the exhibits were not produced for the respondent in 

advance of the hearing and in tesponse to discovery request~ 

·because of a "clerical error" in the reproduction of the inspector's notes (Brief, pp. 4-5). 

I find that the petitioner has established a violation of section 75.301 by a preponderance of the evidence. It is clear to me 

that 9,000 cubic feet of air per minute was not being maintained in 

the last open crosscut in the area described by the inspector and 

that the condition constituted a violation of the cited mandatory 

standard. Further, it is clear to me that respondent presented no 

credible evidence to dispute the inspector's findings which were 

supported by notes and air measurements taken by him.at the time of 

his inspection. 

ilespoudent's suggestion that the violation was "technical" is 

rejected. None of the air readings taken by the inspector reached 

the required levels and based on all of the evidence adduced with 

respect to this violation, it seems clear to me that the respondent 

was experiencing serious problems in maintaining the proper quantity 

of air in the section and I am not convinced that the ventilation 

problems could have been readily cured by simply finding a hammer 

and hanging up a check curtain, as suggested by the respondent. 

With respect to respondent's suggestion that the inspector may 

have fabricated the air measurement computations which are reflected 

in his notes (Exhs. G-20, G-33), I find this to be a most serious 

accusation which should not be taken lightly. However, respondent 

has produced no credible evidence to support its assertion and it is 

rejected. I accept the explanation given by the petitioner in its 

brief with respect to the notes in questioh and find the explanation 

pla~sible. In the future, I would think that the respondent would 

have a more solid basis for such an accusation and should avoid 

speculative, groundless, and unfounded assertions of this kind. The 

order is AFFIRMED. 

Gravity 

The inspector detected no methane and the air readings which he 

obtained for the area cited indicated air quantity ranging from· 

5,700 to 7,125 cfms when measured with an anemometer, and 7,410 to 

7,885 cfms when measured with a smoke tube. Further, the air in the 

intake measured 11,780 cfms and the inspector cited no permissibility 

1183 
violations. Further, respondent's evidence establishes that the 

curtain which was down was apparently rehung in about 5 minutes and 

that the required quantity of air was achieved. 

Although I recognize the fact that the respond~nt was eKperiencing problems with mine ventilation which apparently required addi":" 

tional raises and which prompted the section to be subsequently 

abandoned and shut down, the gravity of the particular condition 

cited in the order must be determined on all of the prevailing conditions which existed as to that order. The facts presented here 

show that there was sufficient air in the intake, no methane, and no 

permissibility violations. Although the inspector believed that the 

low air readings may have affected the air at the face, he apparently 

took no air readings there and there is no evidence to support his 

conclusion that the air at the face was affected at th~ time the order 

issued. 

The potential adverse effects of the violation must be determined 

within the context of the conditions or practices existing in the mine 

at the time the violation is detected, ~awson Coal Company, 1 IBMA 

115, 120 ( 1972). In view of the totality of the conditions which prevailed, including the fact that the required quantity of air was 

apparently restored within a short time, I cannot conclude the violation was serious, and I conclude and find that it was not. 

Negligence 

The fact that the section had experienced problems with ventilation was known both to the respondent and the inspector. As a matter 

of fact, the inspector indicated that an HSHA ventilation team had 

previously visited the mine for the purpose of checking the ventilation and the respondent was apparently attempting' to solve the prob'-

lem. Viewed in this context, I cannot conclude that the ventilation 

problems being encountered in the mine can serve to establish neglig~nce on the respondent's part with respect to the condition cited 

which served as the basis for the order. The order must stand on 

its ovm footing, and any negligence must be established by petitioner 

on the basis of the then prevailing conditions. 

Respondent maintains that the low air readings resulted from a 

check curtain being down. However, the inspector testified that he 

took air readings after the curtain had been replaced and he did 

not believe the check curtain was the cause of the low air readings. 

Since the section was subsequently shut down because of the ventilation problems and consistently low air readings, I cannot conclude 

that his evaluation of the situation was wrong. 

In view of the foregoing, I conclude that the respondent knew 

or should have known about the conditions cited and failed to exercise reasonable care to prevent the conditions~ I find that the 

violation resulted from'respoudent's ordinary negligence. 

1184 
Good FD.i th. Cci;;ipliance 

The evidence establishes that the order was terminated some 

40 minutes .-;ft er.it was issued after the quantity of air was increased 

to 9,600 cfms. Further, respondent.'s testimony r~flects th~t the curtain which wa.s torn down w.'.l.s rehun,'.:; in short order. In the circumstances, I conclude that the respondent exercised rapid abatement in 

achieving good faith compliance after the order issued. 

Order No. 1 'J.'rlL, March 1, 1977, 30 CFR 75.301-1 

Fact of Violation 

Respondent asserts that it is clear from the testimony of its 

face foreman, Pat Sturgill, that there was a technical violation of 

the cited safety standard in that respondent was only using a normal 

and acceptable mining practice to clean the ribs and that the inspector. himself acknowledged that this practice is done to facilitate the 

cleaning of the ribs (Tr. 359-360, 365, 377-378·, 388-389). 

Petitioner argues that coal was being loaded in a working face 

although the air movement was so insu.f.ficient as to be incapable of 

measurement. The loading machine was actually loading coal along 

the ribs to the working face where the coal had not yet been loaded 

out (Tr. 353, 374). 

I find that the petitioner has established a violation of section 75.301-1 by a preponderance of the evidence. _Respondent has 

offered no defense other than. the assertion that taking down the 

curtain is a normal mining practice when cleaning ribs. I reject 

that defense. I conclude from the inspector's testimony that coal 

was being loaded out of the section at the time of the order and 

respondent has not established that it is permitted to take down 

ventilation curtains while loading out coal. Further, while 

respondent presented testimony from its shift foreman that the curtain' was taken down to facilitate the cleaning of the ribs, I find 

the inspector's testimony that coal was being loaded out to be the 

more credible. Even if the ribs were being cleaned, respondent has 

cited no star1dard or raine cleanup plan provision which would permit 

ventilation curtains to be taken down to facilitate the cleanup of 

ribs. Respondent's assertion that the inspector acknowledged this 

practice is taken out of context _and does not excuse the violation. 

T'ne inspector confirmed the section foreman's testimony in this 

regard, but he indicated that no inspector in his district would 

permit the practice and he obviously does not since he issued the 

citation. The order is AFFIRMED. 

1185 
I find that the respondent deliberately took doym the ventilation curtain in question iri order to faciliiate the loading out of 

coal and in so doing caused the quantity of air at the working face 

to be reduced to a point where it could not be measured. In the 

circumstances, I conclude that the respondent exercised a reckless 

disregard of the requirements of section 75.301-1, and in so doing, 

caused the condition cited through gross negligence. 

Gravity 

The quantity of air at the working face was so low as to make 

it impossible for the inspector to take an air.reading with his 

anemometer. Coal was being loaded, the area was dusty, and if 

methane were liberated,. the lack of air would present an explosion 

hazar~ exposing the 12 men on the section to danger. I find that 

the violation was very serious. 

Good Faith Compliance 

The abatement notice concerning Order No. 1 TML, for a violation of section 75.301-1, reflects that the order was terminated at 

11:55 a.m. on March 1 1 1977, 25 minutes after it was issued by 

increasing the quantity of air to 3,000 cfms at the location in the 

No. 5 entry where coal was being cut (Exh. G-26). I conclude that 

respondent exercised good faith in correcting the violation. 

~-No. 2 TML, March 1, 1977, 30 CFR 75.301-1 

Fact of Violation 

Respondent argues that the testimony of the face foreman and 

assistant mine foreman clearly shows that there was more than enough 

air at the working face in question at the time the violation was 

written, that the inspector ~rred in his assessment of the correct 

position of the wing curtain, and that respondent's personnel were 

required to perform a very unsafe and highly dangerous act to abate 

the condition. Respondent asserts that it is highly unlikely that 

an experienced mine foreman, knowing that an inspector was on the 

section, would take an air reading at the incorrect wing curtain 

position and then advise the cutter to begin cuttin~. Respondent 

also points out that although the inspector alluded to a 104(b) 

notice which he said he issued at the same working face moments 

before he issued the order, when MSHA attempted to introduce the 

notice at the hearing, it was discovered that it did not deal with 

the alleged situation described by the inspector and the exhibit 

was withdrawn. Respondent asserts that this is an indication of 

the inspector's confusion as to what actually occurred. 

l.186 
Petitioner argues that the inspector described in detail the 

results of three anemometer readings and two smoke tube readings 

which he took to support his order, and that they averaged 

1, 748 cfms as stated on the face of the order. Although both the 

inspector and Foreman Sturgill testified that the cutter was cutting the crosscut to the left as alleged, petitioner asserts that 

Exhibit R-11 and other testimony by respondent's witness attempted 

to indicate that the working was actually the face of the entry and 

not the face of the crosscut to the left. Petitioner submits that 

Exhibit R-11 was obviously not prepared by eyewitnesses underground 

at the time the violation was cited and is clearly a self-serving 

product of prehearing preparation. 

Petitioner points to the fact that the violation was issued some 

26 months prior to the date the hearing was held and that because of 

the passage of time, the critical and specific details surrounding 

the violation are difficult to recall from memory. Since the inspector was able to consistently refresh his memory from notes made at 

the time of the violation, and since he was the only one to take air 

measurements and tests, petitioner suggests that his .testimony should 

be given more weight. 

After careful review and consideration of all of the testimony 

adduced in this proceeding, I concluJe and find that the petitioner 

has established a violation by a preponderance of the evidence. I 

find that the inspector's testimony, as supported by his notes which 

were taken at or near the issuance of the order, supports his find~ 

ings of a violation and support the order which he issued. 1 further 

find and ponclude that the testimony presented by the respondent in 

defense of the citation does not rebut the findings made by the 

inspector, both as to the existence of the conditions cited or the 

fact of violation. 

With regard to the location of the working face, the inspector's 

testimony is consistent with the description noted on the face of his 

order, as well as the notes taken by him on the day th~ violation 

issued. He defined the term "working face" as 11wherever coal is being 

cut, mined, or loaded'' and specifically testified ·that coal was being 

cut .in the crosscut to the left. The inspector's testimony that coal 

was being cut and that the cutting machine was "sumped up and cutting" 

(Tr. 412) has not been rebutted by the respondent. As a matter of 

fact, Mr. Sturgill admitted that the cutting machine was in the entry 

cutting coal and that the crosscut had been advanced or began one cut 

when he and the inspector reached the entry (Tr. 424). Thus, l cannot 

conclude from the testimony presented that the inspector was wrong in 

his assessment-of the situation, nor can I conclude that he erroneously located the working face. 

1187 
Respondent 1 s assertions that the inspector admitted confuRion as 

to what actually occurred is tc.ken out of context. A close review of 

the inspector 1 s testimony makes it clear that while he alluded to 

some confusion based on the fact that mine management was not happy 

with the issuance of the order and accused him of "nitpicking, 11 when 

asked whether that confusion may have spilled over to his notes, he 

specifically and directly stated "No •

11 I put in my notes what I 

observed and what I had seen ar1d what I came out with 11 (Tr. 4.17). 

Further, based on the somewhat limited cross-examination of the 

inspector, I cannot conclude that he was confused or unsure of the 

conditions which he observed on the day in question which led him to 

issue the violation. 

Regarding the respondent's assertion that the inspector required 

its personnel to perform an unsafe and dangerous act to abateth_e __ _ 

conditions, ~lthough the face foreman testified on direct examination 

that the inspector 11 told me that I would h&ve to hang a wing curtain 

across this machine" (Tr. 1+28). on cross-exaraination, he stated that 

the inspector did not instruct him to hold the line curtain and that 

the inspector did not care "how I cut the place" (Tr. 438). And, in 

testifying that the inspector "made r.1e hang this curtain across this 

cutter bar'' (Tr. 439), he confirmed that inspectors do pot order or 

instruct him how to abate a violation but simply indicate that the air 

is insufficient and leave it to him to bring it. up to requirements. 

In this case, .'he admitted that th(~ inspector did not order him to 

hang the curtain, but that he told him to hang it to a raof bolt (Tr. 

lfL~O). Under the circumstances, I cannot conclude that the respondent's assertion that the inspector required its personnel to per-

:torm a dangerous act has been established. Even if it were, I fail 

to understand how the method of abatemen~ detracts from the condition 

which the inspector believed was a violation of the cited standard. 

The citation is AFFIRHED. 

The evidence adduced that the respondent H~s in the process of 

cutting coal at the. face of the entry cited by the inspector. In 

such circumstances, it is reasonable to expect that the .section foreman would insure that the proper amount of air was maintained at the 

face where such cutting was taking place. I find and conclude 'that 

the condition cited by the inspector should have been discovered and 

corrected and that respondent's failure to do so prior to the time' 

that the violation was cited, constituted ordinary negligence. 

Gravity 

The inspector testified that he believed the gravity presented 

with respect to the violation 11was the same as the others," tneaning 

the previous violations which he testified about in this proceeding. 

Although he alluded to certain hazards· if a pocket of methane were 

1188 
encountered, he also stated that he took methane tests and found 

none (Tr. 413). As for the existe.nce of other prevailing conditions 

which may have amounted to violations, while. he confir.meci the issuance of other notices, he specifically stci.ted that those conditions 

had been abated prior to the issuance of the subject ~rder (Tr. 413). 

Notwithstanding the fact that the respondent was experiencing difficulties \vi th is mine ventilation at the time the orde't issued ,-I 

cannot conclude from the evidence presented by the petitione~ that 

it has establish~d that this violation was serious. Taking into 

account all of the conditions established by the credible evidence 

adduced,~I-conclude that it was nonserious. 

Good Faith Abatement 

The abatement notice concerning Order No. 2 TML, for the violation of section 75.301-1, reflects that the order was terminated at 

12:55 p.m., 15 minutes after the order was issued on March 1, 1977, 

by increasing the quantity of air to 3,400 cfms (Exh. G-30). Absent 

any evidence to the contrary, I conclude that the respondent exercised good faith in abating the conditions cited. 

Size of BuRiness and Effect of Penalties on Respon_dent 's Ability ._t_o 

Remain in Business 

The parties stipulated that responden-t is a large mine operator. 

Respondent presented no evidence or. a.rguments that ariy civil penalties assessed by me in this proceeding will adversely affect its 

ability to remain in business, and I conclude that they will not. 

History of Prior Violations 

As evidence of respondent's history of prior violations, respondent prodt1ced a computer printout (Exh. G-1) for the period January 1, 

1970, to December 19, 1976, for the Ken No. 4 Underground Mine, indicating that respondent has paid a total of $132,270 in civil penalty 

assessments for l, 12 7 violations. Seventy nine violations were for 

infractions of section 75.200, 89 were violatiohs of section 75.301, 

21 were violations of 75.301-1, and 11 ~ere violations of 75.402. 

Twelve of these violations were orders of withdrawal, and the remaining 188 were notices of violation. The individual civil penalties 

paid for all of the violations on the printout range from a low of . 

$9 to a high of $6,300. 

For the 6-year period covering respondent's prior history of 

violations, the violations issued at the mine in question averaged 

185 a year. For an operation of its size, I cannot conclude that 

respondent's overall track record during this period of time is 

indicative of any total disregard for the safety and health of its 

workforce~ I conclude that respondent has a moderate history of( 

prior violations, but I do take note of the fact that approximately 

1189 
20 percent of the prior violations were for violations of the very 

same safety standards which are the subject of this proceeding, and 

this is reflected in the civil penalties assessed by me in this 

proceeding. 

Penalty Assessments 

In view of the aforesaid findings and conclusions, and after due 

consideration of the six statutory criteria for assessment of civil 

penalties, and in particular, respondent's size, prior history of 

paid violations, and the negligence and gravity issues previously discussed, I conclude and find that the following civil penalty assessments are appropriate for each of the violations which have been 

affirmed: 

Order No. Date 30 CF.R Section Assessment 

1 TML 12/20/76 7 5.402 $ 1~500 

1 TML 02/16/77 75.200 2,000 

1 Tl\fL 02/28/77 75.301 1,000 

1 n.11 03/01/77 75.301-1 4,000 

2 TML 03/01/77 75.301-1 __ 1,600 

Total $10,100 

ORDER 

Respondent is ORDERED to pay civil penalties in the total amount 

of $10, 100 within thirty (30) days of the date of this decision. 

-/ 

(_ . / / ? / 

'·. /. / ~/ :.,;:- .>r/ ( /I r /' .. ~ ; : ;/":;~,:-- ~ /. , ,- ' /\.- ,,_ ....... ·- c: ~-.. :/; ... :~ .... <,.__.. George A. Koutras' 

. .--- Administrative Law Ju·dge 

Distribution: 

Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

Thomas Gallaghe~, Esquire, Peabody Coal Company, 301 North 

Memorial Drive, P.O. Box 235, St. Louis, MO 63166 (Cei:tified 

Mail) 

Standard Distribution 

1190 
FEDERAL M!NE 5.t'tflETY r~NO HEALTH tl!EV!EW COMMISSiON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 Wll.SON 60ULE\'ARD 

ARLINGTON, VIRGINIA 22203 

AUG 2 9 :379 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. BARB 79-108-:PM 

A.O. No. 38-00138-05001 

.v. 

Columbia Mine 

PENNSYLVANIA GLASS SAND CORP., 

.Respondent 

Appearances: 

Before: 

DECISION 

Leo McGinn, Trial Attorney, Office of the Solicitor, 

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

the petitioner; 

Jeffrey J. Yost, Esq., Berkeley Springs, West Virginia, 

for the respondent. 

Judge Koutras 

Statement of the Proceedin~ 

This is a civil penalty proceeding pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, initiated by the petitioner against the respondent on November 16., 1978, through the filing 

of a petition for assessment of civil penalty, seeking a civil penalty 

assessment for nine alleged violations· of the provisions of certain 

mandator.y safety standards. Respondent filed an answer and notice of 

contest denying the allegati~ns and requesting a hearing. A hearing 

was held in Columbia, South Carolina, on April 17, 1979, and the parties were afforded an opportunity to file posthearin~ proposed findings, conclusions, and briefs. Respondent filed a brief and proposed 

findings and conclusions and the arguments set forth therein have 

been considered by me in the course of this decision. Petitioner 

submitted no posthearing arguments. 

Issues 

The principal issues presented in this proceeding are {!) 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 proce~ding, and, if so, (2) the appropriate civil 

penalty that should be assessed ~g~inst the respondent for the alleged 

1191 
violations, based upon the criteria set forth in section llO(i) of the 

Act. Additional issues raised by the parties are identified and disposed of in the course of this decision. 

In determining the amount of a civil penalty assessment, section 

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

(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, (L~) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

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

effective March 9, 1978, 30 u.s.c. § 801 ~seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 CFR 2700 .1 ..£.1:. seq. 

DISCUSSION 

The section 104(a) citations at issue in this proceeding were 

issued on March 13 and 14, 1978) during an inspection of the mine, and 

they allege violations of the following safety standards: 

Citation No. 103201, 30 CFR 56.12-34: 

An unshielded light bulb was being used in the trailer at the 

bag house. Three men were loading bagged flour. in the trailer for 

shipment. The bulb was 5 feet from the floor at the trailer hanging 

from a nail. This was a 110-volt circuit. 

30 CFR 56 .12-3L; states: "Portable extension lights, and other 

lights that by their location present a shock or burn hazard, shall 

be guarded," 

Testimony and Evidence Adduced by the Petitioner 

MSHA inspector Herle Slaton, testified th&t in March of 1978, he 

made frequent inspect.ions at respondent's Columbia Mine and that on 

approximately 15 other occasions he visited the mine. The mining 

operation consists of sand, ~hich is mined in open-pit fashion with a 

front-end loader, and approximately 43 to 45 men are employed at the 

mine which operates three shifts 7 days a week. On M:arch 14, 1978, 

he wrote and served upon plant manager John Michner, Citation 

No. 103201 (Exh. G-1), for a violation of 30 CFR 56.12-34, for using 

1192 
an unshieJded light bulb. Material was being bagged, put on a belt 

conveyor from the bagger, and the bags were then carried into a 

tractor trailer that had been backed into the loading dock, and 

employees were stacking the bags on pallets. The light bulb in question was hanging on nails and strung along the wall inside the closed 

trailer approximately 5 feet f~om the floor and 8 to 10 feet back 

from. where the employees were wocking and was being used for illumination. Normally, a grounded wire cage enclosing the light bulb is 

provided. However, in this case he saw no evidence of any guard or 

shield in the area. This was primarily a nonserious type of violation, although it could possibly result in a f#tality. If someone 

were to contact a lighted bulb, a burn could result. If the bulb 

were broken by someone bumping into it or hitting it with an object, 

he could be cut. The 110 watts could em.it enough of a shock to kill 

someone. The light bulb had been unshielded for approximately an 

hour and a half to 2 hours, and the foreman would normally be responsible for seeing that the bulb is shielded (Tr. 14-23). 

On cross-examination, Inspector Slaton testified that the foreman was not present at the time the violation occurred, but that he 

was present at the bagging area, a1d for part of the time while he 

was there. It is not necessary for an employee to come into contact 

with both sides of the bulb filame11t simultaneously in order to 

become shocked, and he believed it is possible for someone to grab 

the energized side of the bulb that was exposed plus a ground wire. 

Three men were loading the truck using a retractable conveyor 

which extended itself up to where they were loading and retracted as 

they loaded the truck and moved back in the truck. During the time 

he was observing the men, the light was always 8 to 10 feet behind 

them. After he observed the violation, he asked the men to correct 

it and 30 minutes later after he came back to check on it, they had 

already taken the light out and replaced it with a grounded circuit, 

and it would not have been possible for them to correct it any sooner 

(Tr. 23-32). The trailer was an "18-wheeler, 11 approximately 40 feet 

long and 8 feet wide (Tr. 32-36). 

Respondent's Testimony 

John Michner, plant manager, testified that guarded extension 

lights are available at the plant and are normally obtained by 

employees by asking a foreman or supervisor for a storage requisition 

slip for the trouble light and then taking the slip to the storage 

room and exchanging it for such a light. Trouble lights are used 

throughout the plant as required on maintenance jobs, and each maintenance man has one in his locker, or will obtain one if he feels it 

is required on the job, From July 24, 1978, to Apr:ll 2, 1979, 

14 trouble lights were used at the plant, and some were damaged and 

had to be replaced, but the majority disappear on the job,!·~·' they 

are prob&bly stolen (Tr. 36-38). 

1193 
On cross-examination, Mr. Michner stated that the light in question was stored in a locker in the bagger building along with other 

valuable equipment, and the leadman and bagging crew normally install 

the trouble lights. With regard to checking the installation of·the 

light for safety, the shift foreman will normaily go underground wben 

a bagging crew is starting, but he is usually there a few minutes to 

make sure that the right material is being bagged in the proper blocks· 

and on the proper pallets. Although the shift foreman's duties 

include checking for safety violations, he will normally attend to 

other duties and will not return unless there is a problem. 

Mr. Michner stated that the plant did not. specifically have a 

safety director nor a safety manager at the time of the alleged violation, nor was there a formal safety training program. Safety meetings, however, are held four times a year for all employees (Tr. 

39-41). 

Citation No. 103202, 30 CFR 56.12-8: 

The electrical wiring for the start-stop switches and the wind-up 

reel were not bushed with insulated bushings. These wei;-e all on the 

power curve conveyor. No energized circuits were exposed..<~ This was a 

480-volt circuit. 

30 CFR 56.12-8 states: 

Power wires and cables shall be insulated adequately 

where they pass into or out of electrical compartments. 

Cables shall enter metal frames of motors, splice boxes, 

and electrical compartments only through proper fittings. 

When insulated wires, other than cables, pass through 

metal frames, the holes shall be substantially bushed 

with insulated bushings. 

Petitioner's Testimony 

Inspector Slaton confirmed that he issued Citation No. 103202 

because the wiring for the start-stop switch and the wind-up reel on 

·the power curve conveyor were not bushed with insulated bushings. 

The power curve conveyor is the conveyor that is used to load trucks 

and rail cars with bagged sand, and it is the same conveyor that was 

being used in the previous citation concerning the unshielded light 

bulb. The wire from the wind-up reel leading into the receptacle 

holding the start-stop switches had possibly been spliced and the 

outside insulation had been cut away leaving the circuits going into 

the receptacle without a bushing. These circuits were not energized. 

The purpose of the bushing is to keep the wires going into the receptacle hole from vibrating and moving, and it serves as insulation. 

Mr. Slaton was concerned that the 6 inches of wire going into the 

receptacle box had not being bushed. 

1194 
Inspector Slaton indicated that since the conveyor belt was 

running at the time ~nd was on a 480-volt circuit with the wires 

laying loose in the hole, there was a possibility that they would 

vibrate through the smaller amount of insulation,.which would cause 

them to short out into the metal conveyor, thereby causing the conveyor to become energized with the voltage. There was the possibility of electrical shock and fatality resulting from men coming in 

contact with the conveyor and being grounded at the same time, and in 

his opinion, the voltage was sufficient to produce a lethal affect. 

Men would normally be in contact with the conveyor while loading and 

unloading and he had no idea how long the condition existed. He 

assumed that maintenance personnel would be re.sponsible for inspecting the wiring and bushings (Tr. 41-47). 

On cross-examination, Mr. Slaton identified a picture of the 

receptacle box in question. The individual wires coming out of the 

cable entering the box were individually insulated and he assumed 

that the part of the cable which had been stripped back resulted from 

some repairs made inside the box. The individual unut-type 11 bolts 

which hold the cables entering and exiting the junction box were 

intact and in place, but three of the wires inside one of the cables 

entering the box were stripped back approximately 6 inches. He did 

not know what was inside the box behind and at the ends of the "nuttype" bolts. From his experience, however, they are the devices which 

contain the insulated bushings. The individual wires appeared to be 

well-insulated and no energized circuits were exposed (Tr. 47-51). 

On redirect examination, Mr. Slaton stated that the three wires 

which had been stripped back were not fitted inside and dovm through 

the bushing into the junction box. However, the wires did go thi:ough 

the bushing into the box, but the outside insulation was taken away 

although they were individually insulated (tr. 51-58). 

When asked whether the circuits inside the junction boxes are 

required to be approved by MSHA, Inspector Slaton responded that they 

are supposed to be; however, the only way that inspectors would have 

any way of knowing whether it was properly wired or installed, is to 

shut down the equipment, energize the circuit and open the boxes, 

which inspectors do not do except.on electrical inspections. To his 

knowledge, at the time of the inspection, there was nothing wrong 

with the particular junction box at issue (Tr. 59-62). 

Respondent's Testimony 

Mr. Michner stated that the piece of equipment involved in the 

citation is a telescoping conveyor, and since the start-stop buttons 

are on the end of the conveyor, the buttons move as the conveyor 

moves. The wire or cable running to the button is stored on a 

wind-up reel on the stationary part of the conveyor, and as the conveyor is extended the wire is pulled from the reel. The conveyor 

1195 
was supplied with an inadequate oi marginally adequate storage capability on the reel, and it causes problems. If the conveyor is 

extended beyond its design length, it pulls the cable from the 

buttons since the cable is not as long as the length to which the 

conveyor could be extended. Although the cable itself was properly 

insfa-llect, since the cable itself went through the bushing on the 

box, when the conveyor was overextended, it would 'pull the cable out 

of the bushing and the slack that was used in the box to make up the 

start-stop button was then pulled out through the bushing. Mine 

management did not initially know how to correct this situation since 

more cable could not be added due to the lack pf room on the storage 

reel. However, the .conveyor buttons have since been moved farther 

down the conveyor to correct the situation permanently. On the day 

the citation issued, the same procedures were followed, that is, the 

buttons were moved and the cable was pulled back through the bushing. 

·The bushings around the hole in the switch box were still intact. 

Although there is no regular electrician on the payroll at the plant, 

a· contract electrician has been working at the plant for the most 

part on a fulltirne basis for a number of years (Tr. 64-66). 

On redirect examination, Mr. Michner stated that the mine has an 

ungrounded delta system, and if one of the three phases touches the 

ground anywhere in the plant for one reason or.another, it will energize the ground and it will register on one of the ground detection 

meters in the control room. By turning off the equipment around the 

plant, an electrician can isolate the grounded equipment and locate 

~t. Normally, the equipment will continue to function and there is 

no shock hazard beca.use in order for there to be a shock hazard, a 

person has to get his body or some part of his body between areas of 

two different voltages. 

On recross-examina~ion, Mr. Michner stated that if the insulation 

on two of the individ~al conductors had broken during the telescoping 

and the two wires touched each other, there would be a sh0rt circuit, 

which would trip the ci tcuit breaker and deenergize the equipment. If 

one conductor broke doWt, the equipment would continue to run, but one 

phase would be touchin8 the ground and the conveyor and ground would 

be energized to 480 volts. In such a circumstance, he did not believe 

there would be any potential for a·nyone to get hurt, but he would not 

go as far as to say that the system is entirely fail safe (Tr. 70-72). 

Inspector Slaton was recalled aG the court's witnes~ and drew a 

sketch of the condition which be cited (Exh. ALJ-1). He stated that 

the individual wires remained intact and the outer.insulation of the 

main ca.ble came loose. The bushing was inadequate because it allowed 

the main cable cover to slip back, thereby exposing the individually 

insulated wires (Tr. 72-76). 

1196 
Citation No. 103204. 30 CFR 56.16-9: -----------' -· 

A tr~ck nnd rolling dolly was needed for chRnging the No. 2 

scrubber liners. There was no way for men to stay clear 6£ suspended 

loads. One man voul<l need to work under the load. This is a pe~·:i.odic 

job done by maintenance. 

30 CFR 56.16-9 states: "Hen shall stay clear of suspended 

loads. 11 

Petitioner's Testimony 

Inspector Slaton described the scrubber o~eration and identified 

a picture of the unit in question after the condition was abated 

(Exh. R-2). The scrubber liners are cleaned perio<licelly and in 

order to facilitate the cleaning process, the scrubber motors and 

other scrubber parts, such as guards, are lifted out by means of a 

chain attached to an overhead steel beam. Once lifted out, the parts 

would remain suspended above the scrubbers with no means of pushing 

them out of the way, and men would have to work under the suspended 

loarls while working on the scrubb2rs. A track-and-roll dolly uas 

installed to abate the citation and this allowed the machinery to be 

hoisted up and moved out of tbe way of the men working under the 

suspended loads. The equipment lifted out might \.;eigh 1,500 pounds, 

and if it fell on so~eone it would be fatal (Tt. 79-88). 

On cross-exs.mination, Inspector Slaton testified that he did not 

perso~1-aT ly .. see any-;;~rking under any suspended load while changing out the liner. The condition which he believed constituted a 

health and safety violation was pointed out to him by the miners' 

representat:ive who accompanied l1im during his inspection, and hi8 

testimony has been a reiteration of what the miners' representative 

told him (Tr. 88-89). 

On redirect examination, Inspector Slaton testified that he was 

accompanied on his inspection by Robert liowles, the miners' representative and HSHA inspector Earl Diggs. Upon arriving at the scene of 

the alleged violetion, Mr. Bowles remerked that a way was needed to 

keep men out from underneath the scrubbers. Although there was a 

rolling dolly installed at another plant location which provided a 

means for moving a suspended load away from the area where the men 

were working, no such equipment had been provided at the area where 

the alleged violRtion oc6urred. Mr. Bowles pointed out to him the 

need for providing a way for moving a load away so that the men wuuld 

not be working directly under it. Plant Manager Michner agreod that 

men had to stay under the load while they were changing the liners, 

and according to Inspector Slaton, Mr. Bowles contended that m•?.n were 

forced to remain under the suspended load while they were changing 

the liners. Mr. Slaton questioned him about this in the presence of 

Mr. Michner, and he discussed with Mr. Michner the procedures tha.t 

1197 
were involved in changing the liners. During the conversation, there 

was no denial of the fact that the liners had to be chan~ed in the 

scrubber nor the fact that the men were working under suspended loads 

while this was being done (Tr. 100-104). 

On recross-examinatior~, Inspector Slaton stated that the guards 

are located over the top of the four scrubber motors and that when the 

scrubber lining is changed, the rainets manually lift out the scrubber 

screen or guard a~d set it aside since there is no hoist for the 

guard. The motors are lifted out individually one at a time rather 

than lifting all four motors out at any one time. A hoist was- fastened to an overhead beam and a chain was lowe-red down and hooked to 

the motor so that it could be lifted up with the hoist. According 

to Inspector Slaton, Mr. Bowles stated that the motor was left suspended while the men worked on replacing the liner, but that it was 

tied. off with a safety chain while suspended. Under the "Gravity11 

section on his inspector's statement, Inspector Slaton testified that 

he had indicated "improbable" Hith respect to "the occurrence of the 

event against which the cited standard was directed" since the safety 

chain was always used to support the load in case the suspension 

failed (Tr. 104-107). Mine management has always been cooperative in 

making any changes he has recom1;iended, including the installation of 

the track and dolly installed to abate the citation (Tr. 109). The 

installation of the dolly at the first locatiory was done voluntarily 

by the operator rather than as the result of a citation or a notice, 

but Mr. Slaton had no idea as to why a similar apparatus was not 

installed at the location in question at the same time. '.fhe operator 

freely acknowledged that the men worked under the load when they 

~hanged the liners (Tr. 113-114). 

Citation No. 103205, 30 CFR 56.11-1: 

A working platform was not provided for maintenance.on the flourloading dust collector air slide. Two men would be involved in this 

work. This work is only done periodically. 

30 CFR 56.11-1 states: "Safe means of access shall be provided 

and maintained to all working places. 11 

Petitioner's Testimony 

Inspector Slaton confirmed that he issued Citation No. 103205 

because there was no work platform installed adjacent to the ·air 

slides which are approximately 12 to 18 .feet above the ground and 

under the flour-loading dust collector. Periodic maintenance is 

performed on the air slides and a platform is required due to the 

fact that the air slides are suspended above ground. Work was performed by means of safety belts and lines used by workmen who would 

climb out on a beam to work on the slides. He has never seen any 

employees performing maintenance on the particular air slides which 

1198 
he cited, although he has observed such work perfotmed on other air 

slides which had been provided with working platforms. He does not 

consider the use of safety belts and lines to be safe since sdfety 

belts may not always be used by the men. Although safety belts were 

generally available at the operation, they were not readily evaiiahle 

to the Den at the particular location cited at that particular time 

(Tr. 125-128). With respect to the risk of injury, Inspector Slaton 

stated that he is. of the opinion that serious injury could result if 

men did not wear their safety belts, but that if a man was wearing 

his safety belt~ and everything was held intact, any injuries incurred 

would be bruises or possibly broken ribs. He made no attempt to 

ascertain why a walkway was not provided, although they were provided 

on other air chutes (Tr. 129-130). 

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

see anyone working-on the air slides, and he acknowledged that his 

·testimony is based on what the miners 1 representative told him dm:ing 

his inspection when he pointed out the area to him and deGcribed the 

condition. He does not know how often the air slides need to be 

replaced, but believed it was 11 periodic, 11 but he did not know ho;.r 

often. In order to get into the area to repair the slides, the men 

used steps and walkways, which were safe at the time. They would then 

have to line themselves off to reach the slide (Tr. 130-131). 

Citation No. 105601, ~O CFR 56.14-1: 

The flat belt drive on the sand floatation tanks was not guarded. 

The pinch point was approximately 4 feet from the floor. 

30 CFR 56.14-1 states: "Gears; sprockets; chRins; drive; head, 

tail, and t::ikeup pulleys; flywheels; couplings; shafts; sawblades; 

fan inlets; and similar expose<l moving machine parts which may be 

contacted by persons, and which may cause injury to persons, shalJ be 

guarded." 

Petitioner's Testimony 

MSHA inspector Earl W. Diggs testified that he issued Citation 

No. 105601 (Exh. G-6), for a viOfation of 30 CFR 56.14-1, because upon 

observing the skimmer paddle wheels turning on the flotation tanks 

inside the mill building, he noticed that the flat drive at one end 

of the skimmer was not guarded. The flat belt drive is an electric 

motor driven paddle whee"i that skims floating waste materials off the 

sand-cleaning tanks. The paddles are driven by a flat belt which has 

a pinch point at the motor drive pulley and at the paddle wheel 

pulley. He required a guard to be put over the drive pulley, at the 

electric motor, and it covered the complete belt. The danger of someone getting caught in the upper pinch point was not serious, but the 

motor end pinch point was serious because that is a drive. After the 

situation was corrected, the guard served to protect persons from the 

1199 
pinch point at the drive. The danger of a guard not being in place 

is that a man, when performing adjustments such as opening valves to 

let the water in, could possibly slip and fall, or he could reach to 

grab something to keep him from falling and get caught in the pinch 

point. However, it is customary not to change the paddles without 

first locking out the circuit. Inspector Diggs indicated he would 

consider the violation to be nonserious because if a man's clothing 

got caught in the pinch point, his arm could possibly become twisted. 

He did not know why the drive was not guarded, and did not: know how 

long it had been unguarded since this is the first time he had noticed 

it. He did not know \vhether a maintenance man was regularly assiened 

to perform maintenance on the belt (Tr. 148-15~). 

On cross-examination, Inspector Diggs stated that after he issued 

the citation, it took a "few hours to install the cover, and that it 

was dorie promptly. The drive belt was a flat belt and not a V-shaped 

pulley sb there was not a groove that somebody could get caught in. 

The paddles turn fairly slow and it was possible for someone to grab 

one of the paddles, as well as the belt itself, and stop it from turning. The pinch point was located at the end of the tank itself, 

within approximately 3 feet of·a couple of water valves that appeared 

to be well-used. He recalls filling out an inspector's statement 

after the inspection and he remembers checking the box under "Gravity" 

and stating that 11 [t]he pinch point was in an out of the way position." He also indicated on the statement that it was "improbable" 

that someone could be severely injured on it (Tr. 154-156). 

Inspector Diggs acknowledged that he had inspected the plant 

before and he had never previously noticed a guard. The belt uas 

fairly loose on the drive and there was no heavy tension. A p~rson 

could reach up and hold the paddles and this would stop the belt frcm 

turning, but it would not stop the drive pulley from turning and 

grinding away in one's hand. The pulley sheave is located approximately 4 feet from the floor, while the drive pulley is higher up in 

the air, approximately 5 or 6 feet. Once the paddle is stopped by 

hand, the pulley is also stopped from turning. 

Since the tension was not enough to turn the paddle wheel, there 

is a possibility that if someone got his sleeve caught, he could pick 

it out by slowly turning the belt. However, there is also the possibility of someone getting caught in the keyways, locks, or fastening 

nuts of the flat belt, that is, inside the pulley. The keyways are 

located in retainers and hold or lock the pulley onto the shaft, hut 

he does not recall whether or not the keyways were exposed (Tr. 

156-161). 

In response to questioning by the bench, Inspector Diggs stated 

that the area involved was a passable, but remote area where someone 

would seldom pass through. The pinch point was located away from 

travelways. Any maintenance needed to be performed on the pulley 

1200 
de~ice would likely consist of regular belt mainte~ance or the repair 

-of a broken belt. Removal of the guard could be accomplished by 

removing two bolts on each side of the guard. The condition was 

abated on the same date as the citation issued--at 10:10 p.m. that 

night (Tr. 162-163). 

Respondent's Testimony 

Mr .• Michner testified that the guard that was obtained to abate 

the condition came from a local fabrication shop, since there are no 

facilities at the mine to do the type of fabrication required. He 

acknowledged that the belt could be stopped frpm turning by grabbing 

it in one's hand. Although he has never measured it, he estimated 

that the upper drive pulley is 7 to 8 feet from the floor and that the 

lower pulley is approximately chest,...high. There had never previously 

been a guard on this particular pulley before, and no inspector previously suggested that the pulley or belt be guarded. If such a suggestion had been made, then it would have been done. No one hc:d ever 

been injured while the belt was unguarded, and the reason that the 

belt had not been guarded is that it never occurred to anyone that 

there was a hazard there. The machine was manufactured by Denver 

Equipment Company, which has made 'l million such machines, and over 

the years, he has never seen one of these machines guarded. The 

machine in question has been running unguarded.at the plant since 

1961. , Before he came to work at the Columbia Mine, Mr. Michner 

worked at respondent's plant in New Jersey, where there are six identical machines that have been running since 1962 without guards; how-

~ver, such machines are probably now guarded. He is certain that 

inspectors who visited the mine had previously observed the condition 

since the machine was located outside his office window and anyone 

who walks on the main walkway through the wet process, walks past the 

machine (Tr. 165-169). 

Citation No. 105603, 30 CFR 56.12-8: 

The electric wiring entering the acid pump drive motor did not 

enter through proper fittings. The wet process building. The rr.eter 

is fed by a 110-volt system. 

Petitioner's Testimony 

MSHA Inspector Diggs testified that he issued Citation No. 105603 

after he observed insulated wires· going into the junction box on the 

acid pump motor through a hole in' the junction box. He identified 

Exhibit R-4 as a photograph of the equipment which was cited. The 

conduit leading into the junction box at the bottom of the photograph 

was broken loose and the wires ·were sticking out, The wires came out 

of the conduit and went into the motor and he could not recall whet:-ter 

the box shown in the photograph was there at the time of the citation. 

The wires were insulated and taped. However, someone could have 

1201 
stepped in or tripped on the wires, thereby pulling them out and 

shorting the motor. The citation does not involve improper fittings, 

but rather, unprotected insulated wiring~ The wires were hooked to 

the motor, and while they were taped, they were still left expos?d 

t11d inadequately protected from someone walking on them or tripping 

over them (Tr. 170-176). 

Inspector Diggs stated that the condition he observed could possibly affect the men opeiating in the plant area, i.e., the maintenance personnel who go in to check the acid pump for-the ac.id flow 

into the system. Since the area involved is a wet process area, it 

is possible that a person performing maintenance duties there could 

step on the wires often enough so as to wear the insulation down, 

thereby possibly being fatally electrocuted. The likely result of 

the condition which he observed is possible shock, burns, or acid 

inhalation from a fire that could result from shorting out the 

110-volt motor (Tr. 176-177). He believed that the operator was not 

aware of the condition until it was pointed out to him, and there 

was no required electrical inspection to be performed that would 

make the operator aware of the condition (Tr. 177-178). 

On cross-examination, Inspector Diggs testified that the motor 

was smai 1, approxiruately between three-quarters to one horsepower. 

His purpose in issuing the citation was to insure that a proper junction box was installed on the elect:.rical motor~ He confirmed his 

previous testimony that wires '~ere coming out of a conduit rather 

than out of a cable, and indicated that the distinction between cable 

and wires is that insulated wiring has less protective insulation 

~round it than insulated cable since insulated cable has two types of 

insulation--onc type of insulation around the wire and then another 

type coopletely around the cable. Mr. Diggs conceded that on the 

citation he stated.that the wires did not enter through proper fittings, and then acknowledged ad1nitting that what is involved is not a 

cablei but rather a wire. Section 56~12-8 does not require wires to 

have proper fittings and it only applies to cables. 

On redirect examination, Inspector Diggs verified his previous 

statement concerning the conduit, but indicated it was not connected 

·to the motor at the junction box. The conduit, according to the 

inspector, is similar to wires and the cable because there·i~ a 

double protection, i.e., the conduit protects the wiring and the 

outer insulation protects the cable (Tr. 181-182). 

On recross-examination, Inspector Diggs testified that if a cable 

were involved, it would be connecte·d to the motor and that either the 

cable or the conduit would terminate in or at the junction box at the 

connection to the motor. He was not aware of any standard that 

requires power wires to be inside a conduit or in a cable. Thus, the 

operator has a choice whether to use wires or cables (Tr. 182-183). 

1202 
Respondent's Testimony 

Mr. Michner testified that the power wiring to the acid pUt:ip 

drive motor came through a rigid conduit fastened on a column and the 

last 12 to 18 inches between the rigid conduit and the motor had no 

protection for the wires. The wires came out of the conduit, were 

fastened to the wires pigtailed out of the motor with wire nuts and 

tape, and were all exposed without a flexible conduit or junction 

box. The inspector wanted the wires to be guarded, that is, he 

wanted them protected in some fashion. However, he could not recall 

whether the inspector specified the manner in which he wanted such 

to be accomplished, but the installation of a junction box would be 

the logical approach for protecting the wires. The pump in question 

was located on a small steel platform, approximately 12 inches off 

the floor. Although it was near a normal work area, there was no 

traffic through the area, and it was very unlikely that someone would 

step on it. The only person who would probably be in the vicinity 

adjacent to the motor would be an electrician, and the size of the 

electric motor is one-twentieth horsepower (Tr. 184-186). 

In response to a question from the bench, Mr. Michner stated 

that the wires were insulated and that there was a bushing on tre 

motor itself. In abating the condition, a cover was put over everything in order to protect the wires, and the existing wire nuts and 

bushing are still in the box. In his opinion, the use of a box is 

the more professional way of protecting the wires, etc. Assuming the 

citation was to be vacated, Hr. Michner stated that he would not undo 

what was done and put things back in their original condition (Tr. 

186-188). 

Citation No. 105604, 30 CFR 56.12-30: 

The electrical junction box on the drive motor for the power 

tank dust collector at the top of the flour tanks was torn loose. 

The motor is fed by a 480-volt three-phase system, 

30 CFR 56.12-30 states: "When a potentially dangerous condition is found it shall be corrected before equipment or wiring is 

energized." 

Inspector Diggs testified he issued the citation in question 

after climbing to the top of the dust collector drive motor and 

observing that the junction box had vibrated loose and was hanging 

down. It was physically separated from the motor, but it had not been 

torn loose. The wires were still leading from the motor to the junction box, the motor was located ap~roximately 3 to 6 inches from the 

junction box, and the equipment was energized. He considered this to 

be a potentially dangerous condition because with continued vibration, 

it is possible that the insulation could have worn off the wires, and 

if there was a breakdown in the grounding system, the mill building 

1203 
could have been energized. Anyone walking from the ground to a 

ladderway and then reaching up to grab the handrails to climb up could 

have been injured by electrical shock. The amount of voltage being 

carried ·though the wires depended upon how many phases could break 

through the insulation, and one phase is approximately 177 volts. 

Since the conditions outside at that time were dry, any shock would 

be nonserious. 'l'he condition ,,ras corrected immediately by reattaching 

the junction box to the motor (Tr. 190-195). 

On cross-examination, Hr. Diggs testified that the electric motor 

was located at- the top of the flour tanks at a height of approximately 

50 to 60 feet. Since there was nothing located above this area, it 

was probably one of the most remote areas in"the plant. He recalls 

indicating on his inspector's statement that ''it is improbable that 

someone would get hurt because the circuits were locked out when someone was up in that area working on the equipment.'' In his estimation, 

the possibility of someone being injured by the condition would be 

improbable but not impossible. There was no indication that the operator had prior knowledge thn.t the junction box had become dislodged. 

With respect to the requirements of the safety standard regarding the 

finding of a potentially dangerous condition, the inspector believed 

that the standard means that when such a condition is found, it should 

be deenergized and corrected before it is reenergized (Tr. 195-198). 

Apart from the fact that the junction box was dislodged from its 

normal place, the only other defect that Mr. Diggs could detect was a 

screw missing from the cover, but the cover itself was still in place. 

His concern was that if the dislodged junction box was allowed to 

remain, it could possibly get worse. The first citation covered the 

situation v.rhich he found, and although he wrote 11 junction box cover 11 

on the first citation out of haste, what he actually meant was 11 junction box, 11 He did not personally amend the citation because he was 

out of the area (Tr. 199-201). 

Citation No. 103206, 30 CFR 56.12-32: 

A junction box cover for the sending generator on the No. 1 

separator in the mill was not kept in place. This was about 4-1/2 

feet from the walkway with no energized circuits exposed. About 

four men would pass within 5 feet of the violation per shift, This 

was a 110-volt circuit. 

30 CFR 56.12-32 states: 11 Inspection and cover plates on electrical equipment and junction boxes shall be kept in place at all 

times except during testing or repairs." 

Inspector Slaton testified he issued the citation after finding 

that the junction box cover was not in place on the box located on the 

sending generator in the upper floors of the mill building, The circuits passing through the junction box were exposed, but were wellinsulated. Although the cover is normally kept in place with screws, 

1204 
there was no cover on the junction box, and it was not under testing 

or in maintenance. The violation occurred on the production shift 

when the equipment was running, and in the inspector's opinion, the 

violation was nonserious since the exposed circuiLs were wellinsulate<l. In his opinion, any hazard would result from continued 

vibra'tion wearing on the innulation, and someone possibly getting :into 

it from the cover not being in place. The condition occurred in an 

area where mill and maintenance people passed by, and approximately 

four-men per shift would pass within approximately 5 feet of the location in question. If the insulation were to become frayed to the 

extent it would expose the electrical circuits and people come close 

enough to it, they could be fatally shocked by. the 110-volt circuit. 

In his opinion, if a person totiching the circuit were standing on a 

metal floor, the circuit would pass through him, He was unable to 

determine how long the cover had been missing, and he did not see a 

cover anywhere in the area (Tr. 202-207). 

On cross-C?xamin:.1tion, Mr. Slaton stated that the junction box 

cover would be facing down toward the floor when in place, and he 

identified a photograph of the box in question (Exh. R-5, Tr. 

207-209). 

Respondent's Testimony 

Mr. Michner confirmed that the junction box faced toward the 

floor. Re also stated that the wires were properly insulated, and 

because they were hanging out of the junction box with wire nuts on 

them (as in the citation including the acid pump), they were highly 

visible. In his opinion, there was no justification for the missing 

cover, and an electrician had obviously made some connection or reconnection and had not replaced it. Although he admitted to having 

experienced problems with respect to employees removing junction box 

covers and forgetting to put them back on, he had no reason to believe 

they were stolen, and he was not present when the citation was issued 

or abated (Tr. 211-214). 

Citation No, 103207, 30 CFR 56.12-32: 

The junction box on the pump house sump pump was not kept in 

place. This motor was in a remote area in the corner of the pump 

house. It was 8 inches from the floor. The only time anyone was 

exposed to this violation was during maintenance on the sump punp. 

No energized circuits were exposed. This was a 110-volt circuit. 

Inspector Slaton testified that he issued the citation in question after observing a pump in the sump pump room with the junction 

box cover missing and a wire exposed. He observed no cover in the 

area and the exposed wire was well-insulated. The violation was not 

serious since there was adequate insulation on the wires. However, 

if the circuits become exposed where the energized wiring is exposed 

1205 
arid.someone comes in contact with it, the situation becomes more 

serious because the location iuvol ved was a •·:et area. The pump was 

portable, and when in use, it rested approx~nately 8 inches from the 

floor. In order for someone to be injured if the·wires were exp0sed, 

all that would be necessary would be for someone to come into contact 

with it while walking past it. The frequency of movement of the pump 

would vary depending upon how 6ften it was needed, and he was not able 

to determine how long the cover plate had been missing (Tr. 214-218). 

On cross-examination, Inspector Slaton indicated, that the pump 

in question was located in the back corner of the sump room in an 

out-of-the-way and remote location and was not. operating when he 

observed it (Tr. 218-219). 

In response to bench questions, Mr. Slaton stated that the only 

time anyon~ would be exposed to the condition cited would be during 

maintenance or adjustments to the pump •. The pump motor was a small 

llO-volt motor and the junction box was missing from the motor pump. 

The pump was a portable type which he believed was being stored in 

the area and he assumed that it was used in the sump area when needed. 

In order to ascertain whether the pump was down for maintenance, he 

asked the person who accompanied him, and since no one said anything 

about the pump being down for testing or maintenance, he assumed that 

it was not (Tr. 219-222). 

Findings and Conclusions 

Citation No. 103201, 30 CFR 56.12-34 

Fact of Violation 

This citation was issued because the inspector found an 

unshielded portable "trouble-light" bulb being used as lighting in a 

tractor trailer which was being loaded with bags of sand. The ~itation states that the light bulb was hanging 5 feet from t~e floor of 

the trailer. The inspector testified that the light bulb was out of 

the reach of the three workers who were stocking sand bags on pallets 

in the truck, and that the expo~ed bulb was hanging from a nail on 

the side of the truck some 8 to 10 feet back from where the men were 

loading. During the time the inspector was observing the loading 

operation, the light bulb was always 8 to 10 feet behind the men and 

he could recall no one passing close by the bulb while he was there. 

Even upon his return a half hour after issuing the citation when the 

condition had been abated, the men ~vere still located some 4 to 6 feet 

from the bulb. 

Section 56.12-34 requires that portable extension lights be 

guarded only if the location of the light is such that a shock or burn 

hazard is present. In this case, it seems .clear to me that the petitioner has not established that the location of the light bulb was 

1206 
such as to present -a shock or burn hazard. The light was bein6 usE,d 

for illumination and the testimony of tl1e inspector establish~s that 

it was always located some 8 to 10 feet behind the men workjng in the 

trailer and that it was out of their reach. Even after abatement, 

the light bulb was still 4 to 6 feet behind the men, and the inspector 

conceded that the usual procedure·was to move the location of the 

light bulb back away from the m:sn as the loading process advanced from 

the front to the.rear of the truck and as the conveyor was retracted. 

Further, the inspector also indicated that during the loading pro~ess 

the men would usually stay in one stationary location at the end of 

the conveyor while off loading and stocking the material on the 

pallets (Tr. 34). 

I find that the petitioner has failed to establish that the location of the light bulb in question was such as to constitute a shock 

or burn hazard and that a violation of section 56.12-34 has not been 

established by a preponderance of the evidence. The citetion is 

vacated. 

Citation No. 103202, 30 CFR 56.12-8 

Fact of Violation 

I find that the petitioner has established a violation as charged 

in this citation. Although the start-stop switch wiring passed 

through bushings, it is obvious that the bushings were inadequate 

since they permitted the wires to be stripped back approximately 

6 inches. This condition was apparently caused by the telescoping 

conveyor windup reel which had an inadequate takeup capacity which in 

turn caused the cables to be pulled away from the stop-start switch. 

Althou3h the inspector's testimony is somewhat confusing as to the 

conditions which he observed, I conclude and find that it does estab~ 

lish a violation of section 56.12-8, which requires insulated wiring 

passing through metal frames to be substantially bushed with insulated 

bushings. Since the wires in question were pulled or stripped back 

when the takeup reel was activated, it seems obvious that the bushings 

were inadequate since they did not prevent this from occurring. Plant 

Manager Michner's testimony confirmed the condition found by the 

inspector and it also confirmed tl1:e cause of the cited condition. 

Negligence 

Respondent's testimony confirms that it was aware of the fact 

that the design capability of the conveyor was such as to permit the 

cable to be pulled out of the start-stop switch when the conveyor was 

extended, This being the case, respondent should have known that the 

wiring in question would likely be stripped back and not.held in place·· 

by the bushings. In the circumstances, I find that the respondent 

failed to exercise reasonable care to prevent the condition cited and 

that this constitutes ordinary negligence. 

1207 
Gravity 

Although the wires in question appeared to the inspector to be 

well-insulated and n~ energized circuits were expos~d, the conveyor 

belt was in operation.when the inspector observed the condition and 

he believed that a potential electrical shock hazard was present 

since men would come in contact with the conveyor while loading and 

unloading material. Although respondent's testimony indicated that 

the equipment would deenergize in the event a ·short circuit occurred 

because of the wiring becoming separated, the fact is that there was 

a potential for the conveyor to become energized and the grounding 

system was not entirely a failsafe system. Unaer the circumstances 

presented, I find that this violation presented a shock hazard and 

was serious. 

Good Faith Compliance 

The respondent demonstrated good faith in achieving rapid compliance. When the citation was issued at 9:45 a.m., the respondent 

was given until 9 a.m. the following day to correct the condition. 

However, compliance was achieved and the citation was terminated at 

4 p.m. on the same day of its issuance (Exh. G-2). 

Citation No. 103204, 30 CFR 56.16-9 

Fact of Violation 

The safety standard cited requires that men stay clear of suspended loads. The standard in question is one of several standards 

listed under a general section 56.16, which is headed by the terms 

"materials storage and handling." Thus, the initial question presented is whether this standard has any·application to a suspended 

heavy load such as a scrubber motor, guard, and other such scrubber 

parts which must be lifted out and suspended in order to facilitate 

the changing of the scrubber liners or· to perform other maintenance 

on the scrubbers. 

Although I fail to see the logic in including the cited standard 

under a "materials storage and handling" gen.'eral regulatory section, 

I conclude that it may be applied to a situation where it is established that men are working under any suspended loads, whether it be 

"materials," as that term is commonly understood, or motors or other 

equipment. 

A second question presented is whether the condition or practice 

described by the inspector on the face of the citation sufficiently 

described a condition or practice which is in violation of the cited 

mandatory safety standard as required by section 104(a) of the Act, 

which states in pertinent part as follows: "Each citation shall be 

1208 
in writin~ and shall describe with particularity the nature of th~ 

violation, including a reference to the provision of the Act, stacdard, rule, regulation, or order alleged to have been violated." 

In this case, although the citation was dated and issued on 

March 14, 1978, some 5 days after the effective date of the 1977 Act, 

it is obvious that the alleged condition or practice occurred prior 

to March 14th. However, since the inspector failed to indicate on 

the face of the citation whe11 the alleged condition occurred, and 

failed to furnish any details as to the alleged condition or practice, 

I conclude that he failed to describe• the alleged violation with 

any particularity. For .all I know, the alleged condition may have 

occurred prior to the effective date of the Act. 

Aside from the anemic evidcntiary presentation by the petitioner 

in support of the alleged violation, I find that the "condition or 

practice 11 on the face of the citation fails to describe any condition 

or practice which amounts to a violation. The "condition" cited 

simply recit~s that there was a need for a track and rolling dolly to 

change scrubber liners, that there was no way for men to stay clear 

of suspended loads, that one man would need to work under the load, 

and that the job was periodically performed by maintenance. As 

pointed out by the respondent in its brief, section 56.16-9 does not 

mention tracks and rolling dollies, and th~condition described does 

not state that miners. had in fact ever worked under a suspended ioad. 

And, as testified to by the inspector, the scrubber motor was sup_:--

ported by a safety chain and could be tied off and S\rung to the side 

or possibly set down on the floor so that men would not have to work 

under it (Tr. 107). 

Finally, I come to what I believe to be the most crucial issue 

presented with respect to the citution, namely, whether the fact .that 

the inspector did not personally obs8rve anyone working under a suspended load is sufficient to support a violation. In this case, it 

.i§_ clear thattl:ie inspector did not observe.anyone work{ng {inder a 

sus1~E:~1<le_d_l~ad during his inspectio11. --in--is~-uing the citation, he 

-rerie<l--on the infor:nation furnisl~ed'- to him by the employees' representative who accompanied him during the inspection. 

Although MSHA did not file arty post.hearing brief or proposed 

findings and conclusions, counsel at the hearing took the position 

that it was not necessary for an inspector to personally observe a 

condition in order to support a violation. Citing the language of 

section 1J4(a) of the Act, which states in pertinent part "if, upon 

inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject 

to this Act-~·as violated this Act, or any mandatory health or safety 

Standard> '~ '': * he Shall, * * * iSSUe a citation tO the Operator> II 

MSHA apparently takes the position that any belief by an inspector 

that a violation has occurred, authorizes the inspector to issue a 

1209 
citation, notwithstanding the fact that such a belief is based, not 

on the inspector 1 s personal observations, but o-;_-the observations 

or statements of a third party wl10 may or may not have personally 

observed a condition or practice constituting a violation. 

The testimony of the inspector reflects that during the course 

of his inspection, and while accompanied by the employee representative and the plant mn~~ger, the employee representative remarked that 

during the· course of ;:cplacing the scrubber liners' the scrubber 

motors were lifted up by a chain hoist, tied off with a safety chain, 

and while suspended in such a position, the persons performing the . 

work were required to work under the suspended motors. According to 

the inspector, Plant Nanager Michner confirmed' that this was the case 

and did not deny it. The employee representative did not testify, 

and Mr. Michner. was not called to testify, although he was present in 

the courtroom. 

Since MSHA did not file any posthearing briefs or arguments in 

support of any of the citations in these proceedings, its position 

and theory on which it believes a citation may be supported on facts 

outside the inspector's own personal knowledge or observations remains 

a mystery. Apparently, HSHA is of the view that the statutory language of section 104(a) authorizing an inspector to issue a citation 

if he believes that a mandatory safety standard has been violated is 

sufficient on its face to support a citation, irrespective of how the 

inspector arrives at- that belief, or irrespective of the evidence produced by the petition.er in support of the alleged violP-tion. Thus, 

MSHA's position appears to be that any time anyone advises an inspector of some past condition or practice outside the inspector's 01·m 

personal knowledge or observations, the inspector must issue a citation. In my view, such a broad interpretion of section 104(a) raises 

serious due process questions, and on the facts and circumstances 

presented here, is rejected. 

Section 103(a) authorizes frequent mine inspections·and investigations, and one of the purposes of such inspections and investigations is to JE;'termine whether there is compliance with the mandatory 

health or safety standards. Subsection (f) authorizes a representativ.e of the mine operator and the miner's representative to accompany 

an inspector during the physic~l inspection of the mine made pursuant 

to subsection (a), for the purpose of aiding such inspection. Subsection (g}(l) provides in pertinent part that: 

Whenever a representative of the miners or a miner 

in the case of a coal or other r11ine where there is no 

such representative has reasonable grounds to believe 

that a violation of this Act or a mandatory health or 

safety standard exists, or an imminent danger exists, 

such miner or representative shall have a right to 

pbtain an immediate inspection by giving notice to the 

1210 
Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to 

writing, signed by the representative of the miners oi 

by the miner, and a copy shall be provided the operator 

or his agent no later than at the time of inspection 5 * * *· Upon receipt of such notification, a special 

inspection shall be made as soon as possible t-o determine if such violation or danger exists * * *· If the 

Secretary determines that a violation or danger doss not 

exist, he shall notify the miner or representative of 

the miners in writing of such determination. [Emphasis 

added.] 

Subsection (g)(2) of section 103 provides 1n pertinent part that: 

Prior to or during any inspection of a coal or 

other mine, any representative of miners or a miner in 

the case of a coal or other mine where there ·is no such 

representative, may notify the Secretary or any representative of the Secretary responsible for conducting 

the inspection, in writing, of any violation of this Act 

or of any imminent<la1;·ger--which he has reason to believe 

exists in such mine. [Emphasis added.] 

It seems clear that sections 103(g)(l) and (2) authorizes a representative of miners to obtain an inspection when he believes there 

is an existing condition which may be a violation, and to bring to 

the attentfonof the inspector an existing condition which he believes 

constitutes a violation. However ,-I-find nothing in section 103 which 

authorizes an inspector to base a citation on some past condition or 

practice brought to his attention orally by a representative of miners 

during the course of an inspection. 

Section 104(b) of the 1969 Coal Act, provided in pertinent part 

that: "[I]f, upon any inspection of a coal mine, an authorized representative of the Secretary Ln<ls that there has been a violation of 

any ~andatory health or safety standard * * *, he shall issue a notice 

to the operator or his agent * * * 

The January 1975 edition of the Inspector's Manual dealing with 

the issuance of notices under section 104(b) of the 1969 Act, states 

that apart from imminent danger situations, the issuance of notices 

pursuant to section 104(b) is "the primary tool for obtaining compliance with the mandatory health and safety standards'' (s~ction 1.0). 

The manual guidelines and instructions for an inspector to follow in 

issuing section 104(b) notices state in pertinent part a0s< follows as 

sections 1.0 and 1.4: 

When the inspector is satisfied upon inspection 

that a condition or practice exists which violates a 

1211 
mandatory standard his responsibility is to issue a 

104(b) Notice and fix a reasonable time for the operator 

to abate the condition or practice. Notices of Violation shall be written promptly after a violation of the 

Act is observed, * * *· [Emphasis added.] 

It seems clear that under the 1969 Act, an inspector was required 

to personally obs~rve an existing condition in a mine which he 

be(ieved constituted a violation. before [ssuing a notice of violation 

pursuant to section 104(b). The 11 f:i.nding" that he was required to 

make concerning such a condition was obviously intended to be based on 

his personal observations of an existing condi~ion. However, under 

the 1977 Amendments to the Act, the language presently used in section 

104(a) with respect to the issuance of citations is "believes." Thus, 

the question presented is whether the term "believes" means the same 

as, or soraething different from, the term 11 finds" as previously used 

in the comparable section of the statute authorizing inspectors to 

issue citations. 

Section lOL~(a) of the 1977 Act provides in pertinent part that: 

If, upon inspection or investigation, the Secretary 

or his authorized representative believes that an operator of a coal or other mine subject to this Act has 

violated this Act, or any mandatory health or safety 

standard, * * * he shall, * * * issue a citation to the 

operator. Each citation sh~ll be in writing and shall 

describe with particularity the nature of the violation, 

* * * 

The connotation of the word "believe" is entirely subjective, 

10 C.J.S. 238. In the common and ordinary use of the English language, and in all the general acception of the term, the word refers 

primarily and explicitly to the mental state of the believer without 

any necessary reg«?rd to the reasons, conditions, ap.d circumstances 

which may have caused or influenced the existence of such mental 

state; and hence it does not imply, require or mean a reasonable 

belief. As pointed out in the cases cited in 10 C.J.S. 238, 239, the 

verb "believe" is susceptible of interpretation in varying degrees. 

In its most definite and strongest sense, it has been defined as 

meaning to accept as true on the testimony or authority of others; 

to be persuaded of the truth of anything; to be persuaded upon evidence, arguments, and deductions, or by circumstances other than personal knowledge, and the term has been held equivalent to, and 

interchangeable or synonymous with "find." 

Words and Phrases, Volume 5, Permanent Edition, pp. 409-412, 

indicates that the word "believe" has been construed to mean: 

nearly synonymous with rely and means to accept as 

true on the confidence of others. 

1212 
to be convinced or to feel that something is true 

or at least probable. 

in the sense of "averred" or "alleged". 

to credit upon authority of testimony of anothe~, 

to be persuaded of trqth of, to regard, accept, or 

hold as ·true. 

The March 9, 1978, edition of the Labor Department's Inspector's 

Manual for the issuance of citations and orders contains the current 

guidelines for an inspector to follow when he 1ssues citations for 

violations of any mandatory health or safety standards, and I take 

official notice of such publication notwithstanding the fact that the 

parties did not see fit to bring it to my attention. Section 1.1 of 

the manual lays out guidelines for an inspector· to follow when 

describing an alleged violation, and it states in pertinent part as 

follows: 

Elements of a violation description include: An 

adequate description of the condition(s) and/or 

practice(s), which must set out the fact(s) that cause 

and constitute the violation of the Act or a specific 

regulation. The description should be written to show 

how and why the regulation is violated. The location in 

the mine where the violation and/or hazard exists must be 

identified for several reasons: (1) to prevent problems 

of timely abatement and to inform the operator as to the 

area of the mine so affected by the citation or order; 

(2) to inform the miners and their representative where 

the violation and hazard exist; and (3) to inform other 

inspectors who may be required to make the follow up 

inspection. Any equipment involved should be properly 

identified as well as located and the inspector should 

include in his description of the violation, any facts 

relevant to exposure hazards to the miners and negli5ence 

on the part of the operator. In a few words it must 

describe with particularity the nature of each violation. 

Section 2.1, which deals with MSHA policy concerning the issuance 

of section 104(a) citations, states in pertinent part as follows: 

When an inspector finds, or. believes, upon an 

inspection or investigation, th~t a condi~ion or practice 

exists which violates a mandatory standard but does not 

create an imminent danger he is required to issue a 

Section 104(a) or 104(d) Citation (except where a Section 

104(d) order is issued) and fix a reasonable time for the 

operator to abate the condition or practice. (Emphasis 

added.] 

1213 
Section 2.6 of the manual provides guidance for the inspector in 

the issuance of citations for violations of Title I of the Act, and 

states in pertinent part as follows: 

Where violations of any provisions of Title I of 

the Act ar~ observed at a mine, or an investigation 

reveals that a Title I violation exists, the authorized 

representative shall issue the citations on Form 1. On 

the Form 1, check the box for citation, and enter type of 

action as 104(a), In citing the violation, identify the 

proper section ;f the Act. 

The ciu~_tion should state specifically when, where, 

and how the violation occurred, if relevant, and a 

detailed description of the conditions or practices. 

A violation of Title I of the Act shall be processed 

the same as any violation of Title 11 an·d Title llI of 

the Act (mandatory health and safety standards). The 

citations should be entered in the proper inspection or 

investigation report, if appropriate, and such citations 

are subject to civil penalties. [Emphasis added.] 

Section 5.0 of the manual deals with the inspector's preparation 

of an "Inspector's Statement," which is a form filled out by the 

inspector at or near the time that he issues a citation, and which 

contains his comments and observations concerning the six statutory 

criteria contained in section llO(i) of the Act. The instructions 

and guidelines state in pertinent part as follows: 

Inspector's Statement Report. See Form No. 7000-4. 

The Statement Report shall be a description of the 

conditions, actions of the operator, and circumstances 

surrounding the violation which the inspector has 

observed or determined by investigation, inquiry, or 

discussions with the operator, supervisors, mine foremen, 

section foremen, miners or others which lead him to make 

:he statements contained in the report. The description 

should be concise and brief but at the same time convey 

a sufficient description upon which a determination or 

recommendations can be made as to the amount of penalty, 

The inspector should realize that his analysis and report 

will influence and be given weight by others. The 

inspector should therefore be able to substantiate the 

opinions stated and such statements must be in agreement 

with the information contained in the citation or order 

issued. 

1214 
The citation or order issued under the provisions 

of sections 104(a), 104(b), 104(d)(l) or (d)(2), 

104(c)(l) or (c)(2), 104(f), 104(g)(l), and 107(a) will 

best describe by section number the mandatory health or 

safety standard which has been violated and will contain 

a description of the conditions or practices as observed 

by the i~spector upon which he made his determination as 

to what caused and constituted the particular violation. 

[Emphasis added.] 

A review of the legislative history of the 1977 Amendments to 

the 1969 Coal Act gives little guidance as to what Congress intended 

when it changed the statutory language from "fl.nd s" to "be 1ieves. 11 

The Senate bill permitted the issuance of a citation based. upon the 

inspector's belief that a violation occurs. The House amendment 

required that a citation be based on the inspector's finding that 

there was a violation. The conference substitute adopted the provisions of the Senate bill. MSHA's current Inspector's Manual, which 

serves as the "handbook" for the guidance of inspectors in the field 

while conducting inspections and issuing citations, uses the terms 

interchangeably. Curiously, however, the terms are used in tandem 

with the terms "inspections" or "investigations," and in several 

places where it instructs the inspector to detail the circumstances 

surrounding the asserted violation on which the citation is based, 

the terms "observed" and 11 exists 11 are consistently used in relationship with the condition or practice found by the inspector. This 

leads me to the conclusion that when an inspector is conducting a 

routine inspection of the mine, any condition which he finds during 

that inspection which prompts him to issue a ci.tntion must be based 

on his personal observations during that inspection and it must 

relate to an existing condition or practice which is in violation 

of the cited mandatory standard. 

As noted earlier, sections 103(g)(l) and (2) of the Act, authorize a miner or miner representative to bring to the attention of an 

inspector any condition or practice in·a mine which the miner or representative reasonably believes constitutes a violation of a mandatory standard. As a matter of fact, Senate Committee Report No. 

95-181, reflects that both of these provisions are based on the 

Committee 1 s belief that mine safety and health will generally improve 

to the extent that miners themselves are aware of mining hazards and 

play an integral part in the enforcement of the mine safety and health 

hazards. However, in bringing these matters to the attention of the 

Secretary, they must be in writing, and once received by the Secretary, serve as a starting point for initiating an immediate inspection 

of the mine by means of a special inspection, with notice of same 

served on the operator no later than at the time of the inspection. 

If the Secretary fails to issue a cit~tion prior to or during an 

insp.ection of a mine in the case. of a condition which has been brought 

to his attention based on su"ch a written "reasonable belief, 11 he is 

1215 
required by suhsection (g)(2) to establish informal review procedures 

for the purpose of determining why a citation was not issued and to 

cornmunicate the reasons for his final disposition of the matter to 

the miner or his representative. Thus, it seems clear to me that 

while the statute permits miners and their representatives to bring 

to the attention of an inspector conditions which they believe constitute violations of any mandatory standard, two conditions precedent 

must be i;net before au inspector may issue a citation. First, the 

complaint must be in writing and served on the operator. Second, 

HSHA i;nust j_nitiate an immediate special investigation to ascertain 

all of tbe facts surrounding the conditions which the complainants 

believe constitute· a violation. In such a ci'rcumstance, any conditions or practices found during the special inspection may conceivably 

result in the issuance of citations based on the results of that 

investigation, and, the citations conceivably could be based on 

information developed during the course of that investigation, including statements and testimony furnished by third parties outside of 

the personal observations and knowledge of the inspector. 

In the instant case, it is clear that the inspector was not conducting a special inspection or investigation (Tr~ 91). As a matter 

of fact, petitioner's counsel touched on and alluded to the requirements of section 103 during the following colloquy on the record 

(Tr. 96-97): 

MR. McGINN: ,., * * I do not know what else the 

inspector could do, Your Honor. If he did not cite a 

violation here, be could be reprimanded by the Union or 

by the miners' representative or other people over him. 

ADMINISTRATIVE LAW JUDGE: I cannot conceive of any, 

Union or any Management representative reprimanding an 

inspector. 

MR. HcGINN: I mean for a Union for failure to--

an inspector, by his authority, is to cite the violation 

where he thinks one exists. 

And, at page 117: 

ADMINISTRATIVE LAW JUDGE: That is what I am trying 

to find out. Was it specifically brought to the attention of the inspector or MSHA before the day of the 

inspection, or was it brought out during the course of 

the inspection casually? 

MR. McGINN: It was· not brought up prior to the 

time of the inspection. This was the first inspection 

under the new law. The inspector said that it was 

specifically pointed out to him during the inspection. 

1216 
In view of the foregoing discussion, I conclude that the stututory and regulatory inspection scheme distinguishes between regular 

mine inspections where the inspection disclo.ses conditions and --p-r-a-c:·-

tices personally observed by an inspector during the course of his 

inspection, and conditions or practices developed during the course 

of a special inspection or investigation where the conditions or 

practices are developed by me~ns of observations and evidence outside 

of the issuing inspector's personal knowledge and observations. In 

these circumstances, I find that a condition or practice cited by an 

inspector as the basis for a citation in the course of a routine 

regular mine inspection must be based on his personal observations 

made during the course of that inspection. On the facts presented 

here, it is clear that the inspector did not p~rsonally observe any 

condition or practice which may serve as the basis for a citation. 

And, by failing to include in his citation any information as to when 

the v"iolation purportedly occurred, it has not been established that 

the alleged violation occurred subsequent to the effective date of 

the 1977 Act. Since the standard cited is based on the now repealed 

Metal and Nonmetallic Hine Safety Act, the timing of the citation 

becomes critical since a proven violation would subject the operator 

to a civil pen~lty up to $10,000, a remedy not previously available 

to MRHA under the now-repealed Metal and Nonmetal Act. 

In addition to my interpretation of the application of section 

l04(a), it should be emphasized that the burden of proof in a civil 

penalty proceeding lies with the petitioner, and the petitioner must 

establish by a pr~ponderance of the evidence that the respondent violated the cited mandatory safety standard. Hearings pursuant to the 

1977 Act are conducted pursuant to the Corrmission' s Rules published 

at 29 CFR, Part 2700, and they are subject to the requirements of the 

Administrative Procedure Act, 5 u.s.c. § 553. Section 1006(d) of 

that Acts 5 u.s.c. § 556(d), permits the admission of hearsay evidence, provided it is not irrelevant, imm;:iterial, or unduly repeti-· 

tious, and the courts have recognized the admissibility of such evidence in administrative proceedings, Montana Power Co. v. FPC, 185 

F.2d 1+91, 497 (D.C. Cci.r. 1950), cert. denied, 340 U.S. 947-0951); 

Vitarelli v. Seaton, 359 U.S. 53s:-540-(1959); Willetpoint Oysters, 

Inc., v. Ewing, 174 F.2d 676 (9th Cir. 1949), cert. denied, ·-33_8 __ 

u.s. 860 (1949). However, 5 u.s.c. § 556(d) also provides that: 

"A sanction may not be imposed or rule or order issued except on 

consideration of the whole record or those parts thereof cited by a 

party and supported by and in accordance with the reliable, probative, and substantial evidence~" 

According to Black's Law Dictionary (4th ed. 1951), the following 

terms are defined as follows: 

Reliable: Trustworthy, worthy of confidence. 

Probative: In the law of evidence. Having .the 

effect of proof; tending to prove, or actually proving. 

1217 
Testimony carrying quality of proof and having fitness 

to induce conviction of truth, consisting of fact and 

reason co-operating as co-ordinate factors. 

Substantial: Of real worth and importance; of 

considerable value; valuable. Belonging to substance; 

actuafly existing; real; not seeming or imaginary; not 

illusive; solid; true; veritable. Something worth while 

as distinguished from something without value or merely 

nominal. 

It is Hell settled that mere uncorroboratf;d hearsay or rumor 

does not constitute substantial evidence, Camero v. United States, 

345 F.2d 798, 800 (D,,C. Cir. 1965); Universal Camera Corporation v,, 

NLRB, 340 u .. s .. 474, 477 0951); Consolidation Edison Co,. v. NLRB, 

305 u.s .. 197, 230 (1938).. --

I have serious reservations about an enforcement policy that 

authorizes an inspector to issue section 104(a) citation (which could 

subject an operator to civil penalties up to $10,000), based solely 

on oral statements made to him by a third party concerning an alleged 

pas·t condition or practice which i:·-..irportedly occurred outside the 

inspector's personal observations and knowledge at some unspecified 

time prior to his inspection. Such uncorroborated hearsay is in the 

nature of rumor and I reject MSHA's attempts to use such "evidence" 

as proof and support for the citation and petition for assessment of 

civil penalty. On the facts and circumstances presented in this proceeding, I conclude and find that the evidence presented by the petitioner to support the alleged violation is of little.or no probative 

or credible value. It is clear that the inspector saw no one working 

under any suspended load on the day the citation issued, and his testimony in support of the citation is based on conversations he had 

with the miners' representative and plant manager who accompanied him 

during the inspection. Further, the inspector admitted that he never 

observed the procedure used for changing scrubber liners anywhere in 

the plant (Tr. 90), he was not conducting any special inspection based 

on a miner complaint (Tr. 91), and the scrubber liners were not being 

changed on the day of his inspection (Tr. 92). As a matter of fact, 

there is no testimony from anyone _who observed the liners being 

changed in the fashion described, and there is no testimony that there 

were in fact any suspended loads in the plant on the day the citation 

issued or that men were not staying clear of such loads (Tr. 93-94). 

The sole basis of the petitioner's case is based on the inspector's 

inference that, based on the scrubber liner change-out procedure, as 

described to him by a third party, "there had to be a violat.ion" 

(Tr. 95). 

Arguably, the existence of the violation may be the fact that the 

procedures for changing out the scrubber liners necessarily require 

that a miner position himself under a suspended load, thereby exposing 

1218 
himself to possible danger~ That seems to be the petitioner's view of 

the violation in this case. Howsver, there is no credible testimony 

as to when the scrubbers in question were lifted out and worked on, 

who worked on them, or what procedures were followed in accompli<>hing 

this task. Here, the inspector conceded that when the liners are 

changed out, the scrubber guards are lifted out one at a time and 

placed down next to where the work is being performed, thereby eliminating the possibility of anyone working under a suspended guard. As 

for the scrubber motors, the inspector conceded that all of the motors 

are not lifted out all at once. Each motor is apparently lifted out 

individually and one at a time by a chain hoist and then secured or 

"tied off" to the side with a safety chain. I.n such circumstances, I 

fail to understand how it can be said that one is working under a suspended load, since the motor is tied off and secured in a manner which 

apparently meets MSHA's requirements. However, without the critical 

. testimony of those individuals directly involved in this procedure, 

any rational and intelligent findings or conclusions are impossible. 

Although the record indicates. that the inspector was accompanied 

cfuring his inspection by the miner representative and the plant 

manager, the miner representative was not produced as a witness. 

Further, although the plant manager was present in the courtroom, he 

was not called as·an adverse witness. The explanation given for failing to call the employee representative is as follows, at page 119 of 

the transcript: 

ADMINISTRATIVE LAW JUDGE: 

reason why this employee that 

produced today for testimony? 

Was there 8uy particular 

was walking around was not 

MR. McGINN: It came to my attention late yesterday 

afternoon, Your Honor. I did not see time to do this. 

If you wish, we could continue it. 

ADMINISTRATIVE LAW JUDGE: No, I am not going to 

continue it. The citation was, you know, issued 

March 14th of 1978. You mean, for the first time 

yesterday, you learned of this? 

MR. McGINN: Both. I knew th.at -- Mr. Michner, 

who was a witness here, also participated in the 

conversation. 

ADMINISTRATIVE LAW JUDGE: He did what? 

MR. McGINN: Participated in the conversation at 

that time. 

I believe that in a civil penalty proceeding where the petitioner 

is seeking to impose the sanction of a fine up to $10,000 for a violation of a mandatory safety standard, the petitioner has an affirmative 

1219 
responsibility to produce that kind.of evidence which would be admissible and held to be substantial in a United States District Court 

civil proceeding, particularly in the circumstances surrounding this 

citation, where the evidence need-c·d to support the .petitioner's position concerning its interpretation of section 104(a) was so readily 

available. Here, not only did the inspector fail to include in his 

citation ·the critical elements of the conditions purporting to be in 

violation of the cited standard, but the petitioner at trial failed 

to call critical witness'3S who possibly could have supplied testimony 

critical to its burden of proof. 

On the basis of the foregoing findings and conclusions, Citation 

No. 103204, alleging a violation of section 30 CFR 56.16-9, is 

VACATED, a.nd a summary of the basis for this action on my part is as 

follows: 

1. Failure of the petitioner to establish a 

prima facie case by a preponderance of any credible or 

probative evidence. 

2. Failure of the inspector who issued the citation 

to describe with any particularity, particularly with 

respect to the date of the alleged infraction, a condition 

or practice constituting a violation. 

3. In a civil penalty proceeding where the petitioner 

is seeking a civil penalty assessment based on a citation 

issued by an inspector pursuant to section 104(a) of the 

Act during the. course of a regular inspection, petitioner 

must establish that the inspector's action in issuing the 

citation was based on his personal observations or knowledge of the conditions during the inspection. 

Citation No. 103205, 30 CFR 56.11-1 

Fact of Violation 

This citation charges that the respondent failed to provide a 

working platform for the dust collector air slide where two men would 

be involved in periodic maintenance work. The cited standard requires 

that 11 safe means of access shall be.provided and maintained to all 

working places. 11 

An initial question presented is whether the listing of section 

56.11-1 under the general heading entitled "56.11 Travelways," renders 

the cited standard inapplicable to the location described in the 

citation. 

The term "travelways" is defined in section 56.2, the definitions 

section of Part 56, as "a passage, walk or way regularly used and 

1220 
designated for persons to go from one place to another." The evid(~nce 

establishes that the air slide in question was located and suspellded 

approximately 12 to 18 feet above ground beneath a dust collector and 

no walkway was provided. Under these circumstances, there is no way 

that the air slide can be considered to be a travelway as defined by 

section 56.2, and I conclude that it was not.----UOwevet:", while one can 

argue the logic of including section 56.11-1 under the general category of "travelways," the crucial question is whether the cited air 

slide location qualifies as a "working place." 

Section 56.2 defines "working place" as "any place in or about 

a mine where work is being performed." Thus, !3-ssuming it is established that work is performed on the air slide, a safe means of access 

must be provided and maintained while that work is in progress at that 

location, and I conclude that the cited standard would be applicable, 

notwithstanding the possible ambiguity created by including it under 

the general regulatory category of "travelway." 

The next question presented is wbether the term "safe access" 

requires that a work platform be installed every time work is performed on the air slide. Respondent apparently did not believe so 

because work was allegedly performed from an adjacent beam with the 

use of safety belts and lines. In addition, it would appear that at 

other similar air slide locations, either a walkway or work platforms 

were provided. Thus, on the facts presented here, there were three 

potential ways in which "safe access" could have been provided, 

namely, a work platform, a walkway, or safety belts and lines. Since 

the standard, on its face, does not specify what would suffice as a 

"safe means of access," I can only conclude that this would depend on 

the circumstances presented on a case-by-case basis. Since the burden 

of proof as to the condition cited lies with the petitioner, it is 

incumbent on MSHA to establish that the method used to perform \Wrk 

on the air slide in question did not include providing and maintaining 

a safe means of access to the air slide. Hhile the inspector indicated that safe steps and walkways were used to gain access to the 

air slide area, he obviously believed that the precise location at 

which the work was ellegedly being performed on the air slide did not 

include a work platform. Thus, the crucial question presented is 

whether the inspector had sufficient evidence to support his citation. 

This citation is similar to Citation No. 103204, dealing with 

the track and rolling dolly, in that the inspector did not personally 

observe the alleged condition or practice on March 14, 1978, the date 

the citation issued. He observed no work being performed on the air 

slide on March 14, nor did he at any time observe anyone performing 

any work on the air slide in question. His belief that a violation 

occurred was again based solely on information provided to him by the 

employees' representative who accompanied him during the inspection. 

That information consisted solely of the representative telling him 

that at some unspecified time in the past, periodic maintenance was 

1221 
performed on the air slide by certain unidentified men without the 

use of a work platform. The inspector did not know how often maintenance was required or performed on the air slide, nor did he make 

any attempts to ascertain why a walkway was not provided at that 

particular location as wns the case at other air slide locations. 

Further, there is nothing in the record to indicate any effort on his 

part to ascertain who performed the maintenance work or when it was 

performed, and surprisingly, MSHA did, not see fit to call any of these 

men or the representative as witnesses. MSHA's sole proof in support· 

of the citation rests on the representative pointing to the air slide 

location and advising the inspector that work had been performed there 

in th~ past without the use of a work platform. 

-In view of the facts and circumstances surrounding the issuance 

of Citation No. 103205, citing a violation of 30 CFR 56.11-1, I find 

that the citation should be VACATED, and my reasons for this are 

the same as those previously discussed with respect to Citation 

No. 103204, dealing with the track and dolly conditipn and my findings 

and conclusions as to that citation are herein incorporated by reference as the basis for my vacating this citation. 

Citation No. 105601, 30 CFR 56.14-1 

Fact of Violation 

I find that the petitioner has established a violation of the 

guarding requirements of section 56.14-1, an<l respondent's testimony 

and evidence does not rebut this fact. The exposed pinch point at 

the drive was some 4 feet from the floor in a location where it was 

possible for someone to come into contact with it, and the photograph, 

Exhibit R-3, and the inspector's testimony confirms this fact. The 

citation is affirmed. 

Negligence 

Respondent's testimony reflects that the machine in question had 

been operating in an unguarded condition since 1961, it never occurred 

to anyone that it should be guarded, and no MSHA inspector ever 

suggested that it should be guarded. I conclude that the respondent 

could not reasonably have known that a guard was required and was not 

negligent in permitting the condition cited to exist. 

Gravity 

The inspector believed the condition cited to be nonserious and 

I adopted his finding of nonserious as my finding in this regard. 

1222 
Good Faith Compliance 

The condition was abated on the same day the citation issued, 

and a day before the time fixed for abatement. Thus, the respondent 

exercised good faith compliance by rapidly abating the condition. 

Citation No. 105603, 30 CFR 56.12-8 

Fact of Violation 

In this case, the citation asserted that the electric wiring 

entering the acid pump drive motor did not enter through proper 

fittings.· Section 56.12-8 has three requirements, and the second one 

relied on by the inspector requires that cables shall enter metal 

frames of motors, only through proper fittings. However, the inspector' i testimony is that there is no cable involved in the condition 

cited, and insofar as the cited wires are concerned, the standard 

does not require that they enter motor frames through proper fittings 

(Tr. 180-181). Here, there is no evidence that the hole in the motor 

frame was not properly bushed, and the inspector confirmed that the 

wires were adequately insulated. Under the circumstances, I find 

that the petitioner has failed to establish a violation, and Citation 

No. 105603 is vacated. 

Citation No. 105604, 30 CFR 56.12-30 

Fact of Violation 

The evidence adduced by the petitioner supports the fact that 

the junction box in question had separated from the dust collector 

drive motor and was hanging dm-m from the motor. The inspector 

admitted that the box had not been torn loose as stated in his citation, and he indicated that the separation resulted from vibration, 

He considered the condition to be potentially dangerous and that is 

why he cited section 56.12-30. 

I find that the petitioner has established a violation of the 

cited section. The fact that the inspector's citation states that 

the.box had been torn loose, when in fact it had not, does not prejudice the respondent, nor does it affect the described condition. The 

fact is that the junction box had separated from its usual location, 

and in that condition could be considered as "torn loose," and respondent presented no evidence to the contrary. Further, the fact that 

the equipment was energized when the inspector found the condition 

cannot serve as a basis for vacating the citation simply because the 

standard requires that the conditicn be corrected before equipment is 

energized. In my view, that fact may bear on the gravity of the condition but may not serve as a defense to the citation. The citation 

is affirmed. 

1223 
Negligence 

The inspector testified that the junction box was located some 

50 to 60 feet high in one of the ~ost remote areas of the mine. He 

did not believe that the respondent had any prior knowledge that the 

junction box had become dislodged. Under the circumstances, I find 

that the respondent could not have reasonably known of the condition 

and consequently was not negligent. 

Gravity 

The inspector was concerned with the fact. that the junction box 

was dislodged and that if it were allowed to remain in that condition, i~ could wear down the insulation. If this happened and there 

was a breakdown in the ground system, the storage tank area could 

beco~e energized, thus exposing the men to a shock hazard. However, 

he indicated that the outside conditions were dry and that the threat 

of shock was diminished because lock-out procedures would be followed 

if someone were working on the equipment. 

Notwithstanding the lock-out procedures and the remote location 

of the box, the loose junction box posed a potential shock hazard if 

it were to remain undetected. Continued vibration would hnve probably 

caused it to separate completely from the motor and this would have 

posed a possible shock hazard. In these circumstances, I find the 

violation was serious. 

Good Faith Compliance 

The condition was corrected immediately by the reattaching of 

the junction box to the motor. I find that the respondent abated the 

condition cited rapidly and in good faith. 

Citation No. 103206, 30 CFR 56.12-32 

Fact of Violation 

I find that petitioner has established a violation concerning 

the· missing junction box cover for the sending generator, and respondent conceded as much by Mr. Michner's testimony that there was no 

justification for the missing cover and that an electrician apparently 

neglected to replace it after performing some work on the wiring. The 

citation is affirmed. 

1

Negligence 

Although the junction box was facing down toward the floor and 

may not have been visible if the cover were kept in place, the fact 

is that respondent conceded the wires were hanging out and were 

visible. Coupled with the fact that an electrician had apparently 

1224 
performed some work on the box and neglected to replace the cover 

plate; and the inspector's unrebutted testimony that men would readily 

pass by the area, I ftnd that the respondent should have known about 

the condition cited and failed to exercise reasonable care to prevent 

the condition cited. In these circumstances, I conclude that respondent is guilty of ordinary negligence. 

Good Faith Compliance 

The condition was abated one-half hour before the time fixed by 

the inspector, and I find that respondent exercised good faith compliance in this regard (Exh. P-8). 

Gravity 

The evidence established that the wires located in the uncovered 

junction box were well-insulated and the inspector believed the condition, as he found it, and which served as the basis for his citation, was nonserious. Respondent's testimony confirmed that the wires 

were well-insulated and were fastened with wire nuts.. Under the circumstances, I adopt the inspector's nonserious finding as my finding 

for this citation. 

Citation No. 103207, 30 CFR 56.12-32 

Fact of Violation 

I find that the petitioner has established that the junction box 

cover for the pump house sump pump was not kept in place as charged 

in the citation, and respondent presented no evidence to the contrary. 

Failure to keep the junction box cover in place constitutes a violation of the cited standard, and respondent presented no evidence that 

repairs or testing was taking place. The citation is affirmed. 

Negligence 

The inspector testified that the sump pump in question was 

located in the back corner of the sump room in an out-of-the-way and 

rem~te location, was not being used, and he could not determine how 

long the cover plate had been missing. In addition, he did not indicate whether or not anyone passed through the area in question or 

whether anyone normally would be in a position to observe the condition cited. In these circumstances, I cannot conclude that respondent 

was negligent or that petitioner has established any negligence with 

respect to this citation. Accordingly, my finding is that there was 

no negligence with respect to the condition cited. 

Gravity 

The evidence establishes that the junction box wires were wellinsulated, that the sump pump was located in a remote area, and that 

1225 
it was not in use. The inspector believed the violation was nonserious, and I adopt this conclusion on his part as my finding in 

this regard. 

Good Fa_ith Compliance 

The condition was abated on the same 

prior to the time fixed by the inspector.. 

exercised good faith compliance by taking 

(Exh. P-9). 

day the citation issued and 

I find that the respondent 

iITJUe<liate corrective action 

Size of Business and Effect of Penalties on Respondent's Ability to 

Remain in Business 

.The parties stipulated that the size of the respondent's mining 

operation is medium-to-small, but that respondent is a subsidiary of 

ITT (Tr, 9). Respondent presented no evidence that any civil penalties assessed by me in this proceeding will adversely affect its 

ability to remain in business, and I conclude that they will not, 

History of Prior Violations 

The inspection in question was the initial inspection under the 

1977 Act, and the parties stipulated that respondent has no prior 

history of violations (Tr. 9). 

ORDER 

In view of the foregoing findings and conclusions, it is ORDERED 

that the following citations be vacated and the petition for assessment of civil penalties, insofar as it seeks penalty assessments for 

these citations, is DISMISSED: 

Citation No. Date 30 CFR Section 

103201 03/14/78 56.12-34 

103204 03/14/78 56.16-9 

103205 03/14/78 56.11-1 

105603 03/14/78 56.12-8 

In view of the foregoing findings and conclusions affirming the 

following citations, and taking into account the six statutory 

criteria set for in section llO(i) of the Act, civil penalties are 

assessed as follows: 

Citation No. 

103202 

105601 

Date 

03/14/78 

03/14/78 

1226 

30 CFR Section 

56.12-8 

56.14-1 

Assessment 

$150 

35 
10560.!i. 

103206 

103207 

03/14/78 

03/15/78 

03/15/78 

56.12-30 

56.12-32 

56.12-32 

75 

25 

25 

Respondent is ORDERED to pay civil penalties totaling $310 within 

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

Distribution: 

George.A. Koutras 

Administrative Law Judge 

Leo McGinn, Trial Attorney, Office of the Solicitor, u.s. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22°203 

Jeffrey J. Yost, Esq., Pennsylvania Glass Sand Corporation, 

P.O. Box 187, Berkeley Spr.ings WV 25411 (Certified Mail) 

Standard Distribution 

1227 
FEDERAL MINiE SAFETY AND HEALTH REVIEW COMMISSION . . OFFICE OF ADMINISTRATIVE lAW JUDGES 

EUGENE GREY, 

v. 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

AUB 3 0 !879 

Applicant 

Application for Review of 

Discrimination Complaint 

Docket No. HOPE 79-77 

RIVERTON COAL COMPANY, 

Respondent Eagle No. l Mine 

DECISION 

This proceeding was brought by Eugene Grey, under section 

105(c)(3) of the Federal Mine Safety and Health Act .of 1977, 30 U.S.C. 

§ 801 ~~., for review of an alleged act of discrimination. 

The case was heard at Charleston, West Virginia·, on April 13, 

1979. Counsel for the parties have submitted their proposed findings 

and 'onclusions and supporting briefs following receipt of the 

transcript. 

Having considered the evidence and contentions of the parties, 

I find that the preponderance of the reliable, probative, and sub-

. stantial evidence establishes the following: 

FINDINGS OF FACT 

1. Applicant was employed by Respondent as a coal mine section 

foreman from about October 1, 1976, to April 7, 1978. Applicant 

worked at Respondent's No. 35 Mine until his transfer to the Eagle 

No. 1 Mine in November, 1977. 

2. Respondent was, at all pertinent times, the operator of the 

No. 35 and Eagle No. 1 Mines in Fayette County, West Virginia. 

3. Applicant was hired as a section foreman by William Sublett 

on October 1, 1976, at the No. 35 Mine. At that time, Mr. Sublett 

was mi.ne superintendent for the No. 35 Mine. Applicant continued as 

a section foreman at the No. 35 Mine until early November 1977, when 

he was transferred to Riverton's Eagle No. 1 Mine. The transfer was 

made because of a reduction in the work force due to Respondent's 

decision to close the No. 35 Mine. 

1228 
4. Mr. Sublett and Bob Samuels, then the general mine foreman 

for the Eagle Nos. 1 and 2 Mines, chose Applicant for the transfer 

over two other section foreman from the No. 35 Mine because he had 

more mining experience, they found him better qualified as a foreman, 

and he had more time with the company than the other men. The use 

of seniority in determining job reassignment was the normat practice 

at Riverton. 

5. Applicant worked in the new section foreman position, on the 

day shift, at the Eagle No. 1 Mine until Friday, April 7, 1978. At 

the end of his shift on that date, Applicant entered the office 

trailer and met Mr. Samuels, who had recently been promoted to mine 

superintendent for the Eagle Nos. 1 and 2 Mines. Mr. Samuels informed 

Applicant that he wanted him to start working on the evening shift the 

following Monday, April 10, 1978, until management could open a new 

section. Applicant refused this assignment, and said that he would 

quit before working on the evening shift. Applicant had never 

expressed any resistance to working on the night shift before this 

time. 

6. Mr. Samuels determined that the transfer of a day shift 

.oreman to the evening shift was necessary because the general mine 

foreman on the evening shift, who had more seniority than any of the 

section foremen on the day shift, was transferring to the day shift. 

Mr. Samuels chose to transfer Applicant to the evening shift because 

he had the least seniority of the day shift section foremen at the 

Eagle Mine. It was Mr. Samuels' normal practice to base this type of 

transfer on seniority, as was the case when Applicant had transferred 

to the Eagle No. 1 Mine in November, 1977, over men junior to him in 

seniority. 

7. When Applicant told Mr. Samuels tha·t he would quit before 

going on the evening shift, Mr. Samuels reminded Applicant that a 

new section was being prepared and promised Applicant that he would 

be brought back to the day shift as soon as the new section was ready 

to begin production. Applicant refused to consider a transfer to the 

evening shift and as he left the office he stated "I quit." He then 

went to see Mr. Sublett, who at that time was general manager of 

Riverton Coal Company and was over Mr. Samuels. 

8. Before Applicant arrived at Mr. Sublett's office, Mr. Samuels 

called Mr. Sublett and told him that Applicant had quit and that they 

would need a section foreman to replace him. Mr. Sublett responded 

that he would begin searching for a replacement. 

9. Applicant arrived at Mr. Sublett's office shortly after 

Mr. Samuel's telephone conversation with Mr. Samuels. Applicant went 

to Mr. Sublett's office to try to convince him to allow Applicant to 

remain on the day shift or if that was not possible, to promote him 

to the general mine foreman's position on the evening shift. 

1229 
Mr. Sublett rejected these suggestions, as another man had been 

hired to be the general mine foreman on the night shift. He also 

stated to Applicant that he did not think that Applicant was qualified to be the general mine foreman because "he did not have the company's interest at heart." At that point in their conversation, 

Mr. Sublett's telephone rang and he motioned for Applicant to leave 

the office in order to conduct his conversation in private. He did 

not intend this as a signal that Applicant could not come right back 

to resume their discussion. Applicant left the mine site before 

Mr. Sublett got off the telephone. Applicant did not return for work 

on Monday and did not indicate at any time to either Mr. Samuels or 

to Mr. Sublett that he would accept a transfer from the day shift to 

the night shift as a section foreman. He never returned to talk to 

Mr. Samuels or Mr. Sublett. 

~O. Mr. Sublett testified that although Applicant was a good 

section foreman, he had not displayed a willingness to put in the 

extra time that would be required of a general mine foreman, and that 

he had found that Applicant tended to arrive at work at the last 

minute and would leave immediately at the end of his.shift. 

11. On July 18, 1978, Applicant filed a discrimination complair·t. In that complaint, he alleged that the termination of his 

employment with Respondent was due to three previous complaints he 

had made concerning mine safety. MSHA investigated the complaint and 

informed Applicant by letter dated September 25, 1978, of its determination that he had not been discriminated against in violation of 

section 105(c) of the Act. Although this initial compliant was filed 

after the 60 day period provided in the Act, MSHA did assert jurisdiction. On October 19, 1978, Applicant filed a complaint with the 

Commission alleging that he had been discharged on April 7, 1978, for 

making three safety complaints during the course of his employment 

with Riverton. This complaint was filed within the time prescribed 

in the Act for filing a complaint after the Secretary's decision, and 

is basically the same as the one filed with MSHA. 

12. The first safety complaint alleged by Applicant occurred in 

early 1977. It concerned water accumulations in the No. 35 Mine and 

the· alleged failure of Respondent to provide an up-to-date mine map. 

Many of the miners in the No. 35 Mine had been concerned that the 

accumulations of water were coming from the abandoned Hickory Camp 

Mine that was adjacent to the No. 35 Mine. The situ~tion had first 

been brought to Mr. Sublett's attention in 1974. At that time, 

Mr. Sublett hired a surveying company to determine the location of 

the abandoned mine and plot its location on Riverton's map of the 

No. 35 Mine. The survey showed that active mining in the No. 35 

Mine was more than 2,000 feet away from the old works, this report 

was announced to the miners, and concern among the miners about water 

accumulations diminished. Mining in that section ceased, and ~ras- later 

resumed· in Decemrrer· 1975. 

1230 
13. After mining resumed in that section, water again began to 

accumulate. Almost every employee voiced concern to Mr. Sublett 

about the water. As mining continued, concern about the water accumulations and the accuracy of the survey grew. In early 1977, Applicant 

expressed his concern to a Federal mine inspector regarding the 

faintness of the drawing of the Hickory Camp Mine on Riverton's 

No. 35 Mine map. The inspector asked Mr. Sublett to prepare a new 

edition of the map that would show more clearly the location of the 

abandoned works. Mr. Sublett immediately complied with this request 

and no citations were issued by MSHA on the basis on Applicant's 

complaint. 

14. The employees remained concerned about the accumulations of 

water and Mr. Sublett authorized the drilling bf bore holes in the 

direction of the abandoned works in May 1977. These test bore holes 

were not required by MSHA because the map showed that mining was 

about· 1,400 feet from the old works and section 317(b) of the Act 

required drilling bore holes only if the active workings were within 

200 feet of abandoned areas. Once the drilling was begun, all comment 

concerning the water ceased. 

15. rhe second incident alleged by Applicant as the basis for 

uis discrimination complaint occurred on August 4, 1977, when the 

No. 35 Mine was not operating due to a strike. Applicant and another 

employee, Mr. John Westfall, were instructed to conduct a preshift 

examination and t9 bring a roof bolter to the mouth of the mine. 

After making the preshift examination, Applicant attempted to call 

the portal and report that the mine was clear, but no one answered 

his call. In the meantime, Mr. Sublett and general mine foreman 

John Bickford had entered the mine and proceeded to a portal on the 

other side of the mountain. 

16. On their return through the mine, they met Applicant and 

Mr. Westfall and told them that two State mine inspec~ors were at the 

portal issuing notices of violation to the men for entering the mine 

without filling out the fireboss book. Applicant complained to the 

State inspector that there was no one on the surface to answer his 

call. 

17. No one was cited for this alleged violation involving the 

communications section of the Act (Applicant's complaint). The State 

inspectors cited the men for entering the mine without completing 

the fireboss book. These notices of violation were ·subsequently 

withdrawn by the West Virginia Department of Mines. 

18. The third incident relied on by Applicant in his complaint 

occurred at the Eagle No. 1 Mine in late November or early December 

of 1977. On this occasion, Mine Superintendent Samuels and a Federal 

mine inspector were in Applicant's section. The inspector remarked 

that loose coal needed to be cleared away from the ribs and 

1231 
Mr. Samuels instructed the Applicant to get the scoop and clean the 

area. When the inspector and Mr. Samuels returned, they found that 

Applicant had instructed his men to clean the ribs with shovels rather 

than with the scoop. 

19. Mr. Samuels asked Applicant why he had not gotten the scoop. 

Applicant replied that he felt that the scoop was dangerous because 

it lacked a canopy. Mr. Samuels stated that the use of the scoop was 

less dangerous because the operator would be about 8 feet from the 

rib when he was using a scoop, while miners using a shovel to clean 

the coal around the rib would be directly under the rib. 

20. The inspector agreed with Mr. Samuels' assessment and 

Applicant finally agreed to use the scoop. The operator had not been 

requi"red to install a canopy on this scoop by MSHA because it was used 

outby the last open break. The scoop was used daily on every shift. 

Applicant made no further mention of this incident and Mr. Sublett 

was not informed that it had occurred. 

21. ~he first two incidents occurred at the No. 35 Mine prior 

to Anplicant's transfer to the Eagle No. 1 Mine. Applicant admitted 

that these incidents were "water under the bridge" at the time of his 

transfer in November 1977. The third incident occurred shortly after 

his transfer. There was no proof that Mr. Samuels' decision to 

transfer Applicant to the evening shift as a section foreman was 

related in any way to these three incidents. I find the decision to 

transfer Applicant was based on the fact that he had the least seniority of the day shift section foreman. This was the normal practice 

for job reassignment of foreman at Respondent's mines. 

22. The preponderance of the evidence ·shows that Applicant 

refused to accept the decision by the mine superintendent to transfer 

to the evening shift and informed him that he would quit rather than 

accept the transfer, and he did quit. He then went to Mr. Sublett to 

see if he could get a promotion to general mine foreman or to be 

allowed to remain on the day shift. 

23. Mr. Sublett would not agree to overrule Mr. Samuels' decision and Applicant gave no indication that he was willing to work on 

the night shift as a section foreman. 

24. I find that Applicant's charge that he was discharged 

because of prior safety complaints is without merit. There was no 

evidence in the record to show any relationship between the three 

above-mentioned incidents allegedly involving Applicant's safety 

complaints and either the decision by management to transfer him to 

the night shift or management's decision to accept his resignation 

when he refused to accept the transfer. 

1232 
DISCUSSION 

Section 105(c)(l) of the Act protects miners from discrimination 

in retaliation of their exercise of safety complaint rights. Applicant has failed to show that he was discriminated against in any 

manner. Respondent's decision to transfer him to the night shift was 

based upon an established, non-discriminatory seniority practice. 

Applicant gave his employer an ultimatum that either he be allowed to 

stay on the day shift or he would quit. The e~ployer accepted the 

resignation. 

There is no evidence that either Respondent's decision to transfer Respondent or its decision to accept this resignation was in any 

way related to his prior safety and health complaints. The evidence 

instead supports the finding that the transfer was based on Applicant's mine seniority, as was his earlier transfer to the Eagle 

No. 1 Mine over other section foremen at the No. 35 Mine who were 

laid off when production was curtailed. 

CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the parties and 

the subject matter of the above proceeding. 

2. Respondent's Eagle No. 1 Mine and No. 35 Mine, at all pertinent times, were subject to the provisions of the Act. 

3. Applicant has failed to meet his burden of proving that 

Respondent violated the Act as alleged. 

4. The application for review should therefore be DENIED. 

All proposed findings and concluslons inconsistent with the above 

are hereby rejected. 

ORDER 

WHEREFORE IT IS ORDERED that the application for review is DENIED 

and the proceeding is DISMISSED. 

WILLIAM 

u~~vvi/ FAUVER, JUDGE 

1233 
Distribution: 

Janet Marie Frye, Esq., P.O. Box 439, Oak Hill, WV 25901 

(Certified Mail) 

C. Lynch Christian III, Esq., Jackson, Kelly, Holt, & O'Farrell, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

Assistant Solicitor, Mine Safety and Health Administration, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

1234 
FEDIEt'lAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FREEMAN UNITED COAL MINING 

COMPANY, 

Respondent 

Docket No. VINC 78-395-P 

A/O No. ll-00599-02026V 

Orient No. 6 Mine 

DECISION 

Appearances: 

Before: 

Leo J. McGinn, Esq., and Sidney Salkin, Esq., Office 

of the Solicitor, U.S. Department of Labor, for 

Petitioner; 

Harry M. Coven, Esq., Gould & Ratner, Chicago, 

Illinois, for Respondent. 

Judge Cook 

I. Procedural Background 

On June 7, 1978, a petition was filed by the Mine Safety and 

Health Administration (MSHA), for the assessment of civil penalties 

against Freeman United Coal Mining Company for alleged violations of 

30 CFR 75.301-4 and 30 CFR 75.400. This petition was filed pursuant 

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

30 U.S.C. § 820(a) (1977 Min-.: Act). ·An answer to the petition was 

filed on June 19, 1978. 

On June 27, 1978, l1SHA filed a motion for production of documents, and the motion was granted by an order dated July 19, 1978. 

Notice of hearing was given on July 14, 1978. "The hearing was 

held between September 26 and September 29, 1978, in Chicago, 

Illinois. Representatives of both parties were present and 

participated. 

At the hearing on September 26, .1978, stipulations were entered 

into as to both the history of violations and the annual tonnage 

produced at the Orient No. 6 Mine and the annual tonnage produced 

by the Freeman United Coal Mining Company. 

1235 
When the hearing opened on September 26, 1978, settlement proposals were submitted in the following cases involving the same 

parties: Docket Nos. VINC 78-392-P, 78-393-P, 78-394-P, 78-396-P, 

78-397-P. Settlement proposals were not submitted in either VINC 

78-49-P or the present case. It was proposed that the record be 

consolidated as to all cases, but che Respondent preferred to maintain separate transcripts of the proceedings in Docket Nos. VINC 

78-49-P and the present case. The record of the September 26, 1978, 

settlement negotiations was consolidated with the separate records 

of the remaining companion cases. 

The hearing on the alleged violations in the present case was 

held between September 27 and September 29, 1978. A schedule for the 

submission of post-hearing briefs was agreed upon at the conclusion 

of tne hearing, but a delay in the receipt of transcripts and other 

problems experienced by counsel forced a revision of the briefing 

schedules. Freeman filed its posthearing brief on March 21, 1979. 

MSHA filed no post hearing brief. No reply briefs were filed. 

II. Violations Charged 

Order No. 

1 KLW 

1 LDC 

1 LDC 

1 LDC 

Date 

01/26/77 

01/03/77 

01/19/77 

01/12/77 

III. Evidence Contained in the Record 

A. Stipulations 

30 CFR Standard 

75.301-4 

75.301-4 

75.301-4 

75.400 

Stipulations were entered into by the parties on September 26, 

1978, and are set forth in the findings of fact, infra. 

B. Witnesses 

MSHA called as its witnesses Kirby L. Webb and Lonnie D. Conner, 

MSHA inspectors. 

Freeman called as its witnesses Peter Helmer, the mine superintendent at the Orient No. 6 Mine; Loren Boner, a foreman at the 

Orient No. 6 Mine; Wesley Helm, an underground supervisor at the 

Orient No. 6 Mine on th.e date of the hearing, and a face boss at the 

Orient No. 6 Mine on January 3, 1977; Ray E. Williams, a foreman at 

the Orient No. 6 Mine; and Paul Budzak, Freeman's safety director. 

C. Exhibits 

1. MSHA introduced the following exhibits into evidence: 

1236 
(a) M-1 is a copy of Order No. 1 LDC, January 12, 

1977, 30 CFR 75.400. 

(b) M-2 is a termination of M-1. 

(c) M-3 is a copy of Order No. 1 KLW, January 26, 

1977, 30 CFR 75.301-4. 

(d) M-4 is a termination of M-3. 

(e) M-5 is a copy of Order No. 1 LDC,. January 3, 

1977, 30 CFR 75.301-4. 

(f) M-6 is a termination of M-5. 

(g) M-7 is a copy of Order No. 1 LDC, January 19, 

1977, 30 CFR 75.301-4. 

(h) M-8 is a termination of M-7. 

2. Freeman introduced the following exhibits into evidence: 

(a) 0-1 is a diagram of a Lee Norse miner. 

(b) 0-2 contains calculations made by Inspector 

Webb representing the method used by him to compute mean 

air velocity. 

(c) 0-3 is a drawing. 

(d) 0-4 is a copy of a production sheet for 

January 3, 1977. 

(e) 0-5 contains background information pertaining 

to Paul M. Budzak. 

(f) 0-6 is a copy of a preshift examiner's report 

dated January 12, 1977. 

(g) 0-7 is a copy of a preshift examiner's report 

dated January 11, 1977 (afternoon shift). 

(h) 0-8 is a copy of another preshift examiner's 

report dated January 11, 1977 (day shift). 

3. Exhibit 1 is a diagram pertaining to an air velocity measurement experiment described by Paul M. Budzak during the course of his 

testimony. 

1237 
4. Exhibit 3 is a computer printout listing the history of paid 

penalty assessments at the Orient No. 6 Mine. (This exhibit was 

received into evidence during the September 26, 1978, settlement· 

proceedings, and is filed in Docket No. VINC 78-49-P). 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should be 

assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of 

the penalty to the size of the operator's business; (3) whether the 

operator was negligent; (4) effect of the penalty on the operator's 

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

(6) the operator's good faith in attempting rapid abatement of the 

violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

During the settlement proceedings on September 26, 1978, the 

parties ente~ed into the following stipulations: 

(1) The Orient No. 6 Mine produces approximately 1,159,797 tons 

of coal per year (Tr. 5, 11-September 26, 1978). 

(2) The Freeman United Coal Mining Company produces approximately 6,221,752 tons of coal per year (Tr. 5, 11-September 26, 1978). 

B. Order No. 1 KLW, January 26, 1977, 30 CFR 75.301-4; 

Order No. 1 LDC, January 3, 1977, 30 CFR 75.301-4; 

Order No. 1 LDC, January 19' 1977, 30 CFR 75.301-4 

(1) General Findin~s 

Between January 3, 1977 and January 26, 1977, MSHA inspectors 

Kirby L. Webb and Lonnie D. Conner issued the three subject orders of. 

withdrawal for three separate violations of 30 CFR 75.301-4. Mr. Paul 

Budzak, the Respondent's safety director, appeared as an expert witness on the subject of air velocity measurement. His testimony refers 

to all three air violations. The Respondent's post-hearing brief presents questions of law and fact coIIL.~on to all three violations. To 

prevent undue repetition in the portions of this decision which 

separately address each order of withdrawal, the common questions of 

law and fact will be addressed herein. 

1238 
30 CFR 75.301-4, the applicable mandatory safety standard, 

states: 

Velocity of air; minimum requirements. (a) On and 

after March 30, 1971, except in working places using a 

blowing system as the primary means of face ventilation 

or in working places where a lower mean entry air velocity has been determined to be adequate to render harmless 

and carry away methane and to reduce the level of respirable dust to the lowest attainable level by the Coal Mine 

Safety District Manger, the minimum mean entry air velocity shall be 60 feet a minute in (1) all working places 

where coal is being cut, mined, or loaded from the working 

face with mechanical mining equipment,. and ( 2) in any 

other working place designated by the Coal Mine Safety 

District Manager for the district in which the mine is 

located in which excessive amounts of respirable dust are 

being generated by any type of mechanical mining equipment. 

(b)(l) Except as provided in subparagraph (2) of 

this paragraph, and except in working places where combination face ventilation systems are employed, the mean 

entry air velocity of air passing through any room, entry, 

crosscut, pillar cut, or other working place shall be 

established as follows: 

(i) The quantity of air, when measured at 

the inby end of the line brattice or other 

approved device, shall be determined; 

(ii) The cross sectior1al area of the room, 

entry, crosscut, pillar cut, or other working 

place, when measured at or near the inby end of 

the line brattice system or other approved 

device, less the cross sectional area of the 

line brattice system or other approved device, 

shall be determined; 

(iii) The air quantity measured in subdivision (i) of this subparagraph shall then be 

divided by the.remaining cross sectional area 

as determined in subdivision (ii) of this 

subparagraph and the resulting quotient shall 

constitute the mean entry air velocity; thus: 

[ i/ii]=V. 

(2) When longwall mining is used the mean entry air 

velocity at the longwall face shall be determined by 

establishing the total intake air quantity delivered to 

1239 
the longwall face and dividing this quantity by the cross 

sectional area of the longwall place at the entrance to 

the longwall face. 

(c) The determination of mean entry air velocity may 

be made either immediately before mining equipment enters a 

working place or during its presence in such working place 

and the person making such determination shall use an 

anemometer or other device approved by the Secretary. 

The method of face ventilation employed at the Orient No. 6 Mine 

consists of 16 inch diameter exhaust tubing installed to within 

10 feet of the working face. The tubes are hung from the left side 

of the roof. They are connected to an exhaust fan which pulls air 

through the tubing (Tr. 47, 128-29, 170). 

30 CFR·75.301-4(b)(l) sets forth the prescribed formula to be 

used in establishing the mean velocity of air passing through the 

working place, except where combination face ventilation systems are 

employed. Combination face ventilation systems were not employed in 

the subject areas of the Orient No. 6 Mine at the time the thre~ 

orders were issued. 30 CFR 75.301-4(b)(l)(i) requires a measurement 

to be taken at the inby end of the line brattice or other approved 

device to determine air quantity. 30 CFR 75.301-4(b)(i)(ii) requires 

the cross sectional area of the working place to be determined by 

taking measurements at or near the inby end of the line brattice 

system or other approved device, and deducting therefrom the cross 

sectional area of the line brattice system or other approved device. 

Under the formula in 30 CFR 75.301-4(b)(l)(iii) mean air velocity is 

compted by dividing the figure obtained under 30 CFR 75.301-4(b)(l)(i) 

by the figure obtained under 30 CFR 75.301-4(b)(l)(ii). 

The Respondent argues that the inspectors failed to take measurements of the cross sectional area at or near the inby end of the 

exhaust tubing. (Respondent's Post-Hearing Brief, pp. 23-24, 28). 

According to the Respondent, the inspectors testified that in each 

instance the cross sectional measurements were taken behind the mining machine located in the working place at the time. The mining 

machines used at the Orient No. 6 Mine are 33 feet long (Tr. 115). 

In each instance, the end of the exhaust tubing was within 10 feet of 

the face. The Respondent thereupon argues that in each instance the 

inspector could not have been closer than 20 feet from the inby end 

of the exhaust tubing when he measured the cross sectional area of 

the room. "It is apparent," argues the Respondent, "that 20 feet 

outby the inby end of the exhaust tubing is not the location designated by section 75.301-4(b)(l)(ii) to take the measurement for cross 

sectional area of the room." (Respondent's Post-Hearing Brief, 

pp. 23-24). I disagree with the premise that such a measurement point 

could not be construed to comply with the regulations. 

1240 
The Interior Board of Mine Operations Appeals (Board) was faced 

with an analogous set of facts in Zeigler Coal Company, 3 IBMA 78, 

81 I.D. 173, 1973-1974 OSHD par. 17,615 (1974). The Board was confronted with an alleged violation of 30 CFR 75.301-3, with the Respondent contending that the required measurements were taken in the wrong 

location in the mine. The pertinent language of 30 CFR 75.301-3(a) 

and (b) interpreted by the Board was similar to the pertinent language 

of 30 CFR 75.301-4(b)(l)(ii) in that it specified only a general location for taking the measurement. The Board concluded that the government could adopt its own interpretation.as to the location at which 

to make the air volume measurement. The Board also noted that no 

rebutting evidence was present to indicate that' moving the point of 

measurement made any difference in the readings obtained. 

Mr. Budzak was present in the hearing room when the inspectors 

testified as to the method they employed to compute the air velocity 

(Tr. 202-03). He testified that, in his opinion, the method used by 

the inspectors was inadequate to the extent that they were not taking 

into consideration with any degrees of consistency, the areas that 

should have been deducted in computing the cross sectional area of 

the working place (Tr. 205-06, 222). He did not indicate either that 

the measurements were taken too far from the inby end of the tube or 

that the location at which the measurements were taken affected the 

accuracy of the results. 

Accordingly, it is found that the inspectors took the measurements employed in computing the cross sectional area of the working 

place at or near the inby end of the approved device within the 

meaning of 30 CFR 75.301-4(b)(ii). 

The Respondent's second position asserts that the cross sectional area of the exhaust tube must be deducted in computing the 

cross sectional area of the working place. (Respondent's Post 

Hearing Brief, p. 24). I agree. 30 CFR 75.301-4(b)(l)(ii) specifically states that the cross sectional area of the line brattice system 

or other approved device shall be deducted in computing the cross 

sectional area of the working place. According to Mr. Budzak, the 

16 inch exhaust tubing has a cross sectional area of 1.39 square feet 

(Tr. 208, 235). 

The Respondent's third position asserts that the cross sectional 

area of the mining machine located in the working place should have 

been deducted in computing the cross sectional area of the working 

place. (Respondent's Post Hearing Brief, pp. 24-25). Mr. Budzak 

testified that such an adjustment would increase the mean air velocity 

reading (Tr. 205), and indicated that the failure to make the adjustment resulted in an incorrect mean air velocity computation (Tr. 206). 

I disagree with the Respondent's position. The regulation 

clearly states that the mean air velocity can be determined either 

1241 
with or without mining equipment in the working place. 30 CFR 

75.301-4(c). It is equally clear that only the cross sectional area 

of the approved ventilation device can be deducted in computing the 

cross sectional area of the working place. 30 CFR 75.301-4(b)(l)(ii). 

The core of Mr. Budzak's disagreement with the measurement procedure used by the inspectors is not that the inspectors failed to 

follow the regulations by not deducting the cross sectional area of 

the mining machine. Rather, he disagrees with the formula set forth 

in the regulations (Tr. 237-38). In effect, the Respondent is 

requesting the Judge to invalidate the regulat.ion by adopting 

Mr. Budzak's computation scheme. 

Without considering the question as to the power of the 

Commission to pass upon the validity of such a regulation, it appears 

that there is no basis for holding that one part of the regulation, 

relating to the alternative procedures for taking measurements, should 

be held void since it is part of the overall regulation which sets the 

minimum velocity requirement. There is no claim that the overall 

regulation as to velocity is void. Apparently the drafters of the 

regulation had in mind a need for a maintenance of a minimum velocity 

of air whether the machinery was in or out of the working place at a 

given moment during the mining cycle (Tr. 149). 

Accordingly, it is found that the inspectors were correct in not 

deducting the cross sectional area of the mining machine in computing 

the cross-sectional area of the working place. 

The Respondent's fourth argument asserts that the Petitioner 

failed to establish that the pitot tube and magnehelic gauge are. 

approved air measurement devices within the meaning of 30 CFR 

75.301-4(c). (Respondent's Post Hearing Brief, p. 25). I disagree. 

Both Exhibits M-5 and M-7 indicate that the magnehelic gauge and 

pitot tube are approved air measurement devices. During the course 

of direct examination respecting Order· No. 1 LDC, January 19, 1977, 

Inspector Conner indicated that the devices are approved (Tr. 171). 

Additionally, both inspectors had been instructed by the government 

as to the correct means of using the tube prior to the issuance of 

the orders (Tr. 53, 63, 133). The pitot tube and magnehelic gauge, 

on the one hand, and the anemometer, on the other, are alternative 

methods for determining air velocity at the face (Tr. 50). In fact, 

Inspector Webb testified that the pitot tube and the magnehelic gauge 

are more accurate than an anemometer (Tr. 51). 

Accordingly, it is found that with this evidence the Petitioner 

has established at least a prima facie showing that the pitot tube 

used in conjunction with the magnehelic gauge is a device approved by 

the·Secretary. In view of that evidence it would be up to the 

Respondent to prove otherwise if it were possible. 

1242 
The Respondent's fifth position asserts that, by failing to 

introduce into evidence the conversion chart used by the inspectors 

in interpreting the readings from the pitot tube and magnehelic gauge, 

the Petitioner has failed to meet its burden of proof by omitting an 

essential evidentiary link. (Respondent's Post-Hearing Brief, p. 25). 

I disagree. 

Zeigler Coal Company, 3 IBMA 78, 81 I.D. 173, 1973-1974 OSHD 

par. 17,615 (1974), was similar to the present case in that it 

addressed the government's burden of proof with respect to air violations. In Zeigler, the Board indicated that a notice of violation is 

sufficient to prove an air vPlocity violation in the absence of 

rebutting evidence tending to negate the grounds for the notice's 

issuance. In Zeigler, the Board noted that there was no indication 

that the notices were deficient. 

In Eastern Associated Coal Corporation, 7 IBMA 14; 83 I.D. 425, 

1976-1977 OSHD par. 21,195 (1976), aff'd on reconsideration en bane 

7 IBMA 133, 83 I.D. 695, 1976-1977 OSHD par. 21,373 (1976), an operator challenged a sampling system employed by MSHA's predecessor, the 

Mining Enforcement and Safety Administration (MESA), in computing 

the average concentrations of alleged respirable dust in the mine 

atmosphere. 

Eastern was a civil penalty proceeding involving 22 notices of 

violation issued under section 104(i) of the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 814(i) (1970), for alleged noncompliance with the Secretary of the Interior's respirable dust standards. The Board, citing Castle Valley Mining Company, 3 IBMA 10, 

81 I.D. 34, 1973-1974 OSHD par. 17,233 (1974), observed that MESA had 

established its prima facie case by authenticating the subject notices 

and introducing them into evidence. 

In this decision the Board indicated that an operator can challenge a sampling system used by the government agency charged with 

securing compliance with the mandatory standards by establishing that 

the sampling system does not conform with the requirements of the 

statute or the regulations promulgated thereunder. After addressing 

the various arguments raised by the parties on appeal, the Board 

summarized the record as follows: 

* * * (1) by placing the subject notices in evidence, 

MSHA established a prima facie case for its charges that 

Eastern had exceeded the applicable limit on average 

concentrations of "respirable dust;" (2) Eastern established by a preponderance of the evidence an affirmative 

defense--to wit, that each of the subject notices was 

based upon alleged concentrations of "respirable dust" 

that in fact included particulates of dust which are not 

"respirable" as a matter of law under section 318(k) of 

1243 
the Act and 30 CFR 70.2(i); and (3) MESA's sole rebuttal, 

namely, that the provisions of section 318(k) were 

properly ignored as a matter of law, is without merit. 

7 IBMA at 46. 

The three subject orders of withdrawal (Exhe. M-3, M-5, M-7) were 

properly identified and authenticated by the issuing inspectors (Tr. 

45, 127, 168), and admitted into evidence without objection (Tr. 123, 

156, 168-69). Each order of withdrawal sets forth the mean air velocity as computed by each inspector. By properl~ placing these orders 

into evidence, the Petitioner established a prima facie case for the 

respective violations of 30 CFR 75.301-4. Therefore, it was unnecessary for the Petitioner to introduce the conversion charts into evidence in order to sustain its burden of proof. The burden was thereupon placed on the Respondent to produce evidence tending to establish 

either that the inspectors failed to adhere to established procedures 

in interpreting the readings acquired through the use of the pitot 

tube and the magnehelic gauge or that the use of the tube and gauge 

or the use of the chart violated the statute or the regulations. 

Although the record indicates that Inspector Conner failed to properly 

determine the cross sectional area of the working place by failing to 

deduct the cross sectional area of the exhaust ~ubing, there is no 

indication that either Inspector Webb or Inspector Conner incorrectly 

used the chart in interpreting the readin8s taken with the pitot tube 

and magnehelic gauge. Additionally, no probative evidence was introd~ced to establish that the use of the tube and gauge or the use of 

the chart was not authorized by the statute or the regulations. 

The sole evidence adduced by the Respondent with respect to the 

chart was through Mr. Budzak's testimony. According to Mr. Budzak, 

experts in the field of air velocity measurement agree that in order 

to obtain an air quantity reading, through the use of a pitot tube in 

an air duct, that is 100 percent accurate, 20 readings must be taken 

and averaged (Tr. 220-21, 229-35, Exh. 1). The method employed by 

the inspectors was to take one reading from the center of the exhaust 

tube (Tr. 67, 101, 235). According to Mr. Budzak, the federal authorities use an 85 percent correction factor to equate this one reading 

back to a result that is 100 percent accurate (Tr. 235-36). The 

85 percent correction factor is reflected in the conversion chart used 

by the inspectors (Tr. 236). Mr. Budzak then indicated that laboratory testing indicates that a correction factor of approximately 

90 percent is needed to equate one reading back to a result that is 

100 percent accurate (Tr. 220-21, 224, 236). 

However, he stated under cross-examination that it would be 

correct to say that the foremen testified that the method they used 

to reach their air velocity figures was essentially the same as the 

method used by the inspectors (Tr. 223). In fact, he testified that 

1244 
he would not be the least bit surprised by the fact that Inspector 

Conner's 44 feet per minute calculation was approximately the same as 

the 45 or 47 feet per minute calculation computed by the section 

foreman approximately 5 minutes earlier (Tr. 225). He further stated 

that he was satisfied with the manner in which his section foremen 

were taking the readings. The only point he was attempting to make 

was that the .85 co.rrection factor is disputed by the authorities in 

the Bureau of Mines who are contending that a .90 correction factor 

should be used (Tr. 224). 

This testimony tends to establish that a dispute exists amongst 

the authorities in the field of air velocity measurement as to whether 

the .85 correction factor embodied in the chart is appropriate, but 

it does not tend to establish that the inspector's used the chart 

incorrectly. Additionally, the Respondent introduced no calculations 

using the 90 percent correction factor to establish that its use would 

materially affect the air velocity measurements. 

An additional factor common to all 3 orders of withdrawal is 

the mathematical formula used to compute mean air velocity. This 

procedure is set forth as follows: 

Step 1: 

Cross sectional area of the working place when 

measured at or near the inby end of the approved 

ventilation device minus the cross sectional area of 

the approved ventilation device equals the adjusted 

cross sectional area of the working place. 

Step 2: 

The reading taken from the magnehelic gauge is 

applied to the conversion chart to obtain the 

corresponding CFM reading for 16 inch tubing. 

Step 3: 

Divide the CFM reading by the adjusted cross 

sectional area of the working place to determine the 

mean air velocity in feet per minute. 

(Exh. 0-2, Tr. 52, 55, 87-89, 105-06, 215-16). 

2. Order No. 1 KLW, January 26, 1977, 30 CFR 75.301-4 

(a) Occurrence of Violation 

MSHA inspector Kirby L. Webb visited the Respondent's Orient 

No. 6 Mine on January 26, 1977 (Tr. 45). At approximately 10:30 a.m., 

1245 
he traveled to the 2nd northwest working section and proceeded to the 

working face of the No. 5 room (Tr. 46). Coal was being cut at the 

time (Tr. 46, 64). He thereupon took measurements in the 16 inch 

exhaust tubing used for face ventilation to determine the mean air 

velocity (Tr. 47, 50, 52, 55). 

He used a small drill bit to bore a small hole into the second 

or third tube outby the working face (Tr. 50, 66). The tubing comes 

in 10 foot sections (Tr. 48). He inserted the L shaped pitot tube 

into the opening, and positioned the hole in the end of the pitot 

tube toward the air flow (Tr. 51-52). He thereupon checked the reading on the·magneheli~ gauge, which recorded .5. inches of water (Tr. 

52). The magnehelic gauge was attached to the pitot tube by means of 

two hoses (Tr. 51). The gauge registers air pressure in inches of 

water which is then converted to CFM by means of a conversion chart 

(Tr. ·51-52). He then consulted the conversion chart for 16 inch tubing and .5 inches of water and got a reading of 3,357 CFM (Tr. 52, 

104). The entry was measured with a steel tape (Tr. 75), and measured 

approximately 7-1/2 by 14-1/2 feet (Tr. 77). The inspector testified 

that the cross sectional area of the working place was approximately 

107 or 108· square feet after deducting 2 or 3 square feet for the 

cros£ sectional area of the exhaust tubing (Tr. 52, 55, 105-06). He 

thereupon calculated the mean air velocity as 33 feet per minute, 

(Tr. 55, 96, 97, Exh. M-3). He thereupon issued the subject order of 

withdrawal (Exh. M-3) citing the Respondent for a violation of the 

mandatory safety standard embodied in 30 CFR 75.301-4 which requires 

a minimum mean air velocity of 60 feet per minute in all working 

places where coal is being cut, mined or loaded from the working face 

with mechanical mining equipment. 

A recomputation, using the precise adjusted cross sectional area 

of the working place, reveals the following: The working place measured 14-1/2 feet by 7-1/2 feet, yielding a cross sectional area of 

108.75 square feet. The 16 inch exhaust tubing has a cross sectional 

area of 1.39 square feet (Tr, 208, 235). Therefore, the adjusted 

cross sectional area of the working place was 107.36 square feet. 

(108.75 square feet minus 1.39 square feet equals 107.36 square feet). 

3357 CFM divided by 107.36 square feet yields a mean air velocity of 

approximately 31.27 feet per minute. 

Mr. Loren Boner, a foreman employed by the Respondent, testified 

that the mining machine in the No. 5 room was broken when he arrived 

on the section at approximately 8:35 a.m. (Tr. 113, 116). The machine 

was repaired and returned to service shortly before the order was 

issued (Tr. 116). Although the miner could not have been operating 

for more than five minutes prior to the order's issuance (Tr. 117), 

Mr. Boner confirmed that the miner had cut coal during the 5 minute 

time period (Tr. 119). The machine was returned to service before 

Mr. Boner conducted air velocity tests (Tr. 117, 119). 

1246 
Accordingly, it is found that a violation of 30 CFR 75.301-4 has 

been established by a preponderance of the evidence in that the mean 

air velocity was 31.27 feet per minute in a working place where coal 

was being cut, mined or loaded from the working face with mechanical 

mining equipment. 

(b) Gravity of the Violation 

The purpose of adequate face ventilation is to render harmless 

and remove methane, respirable dust, and other contaminants (Tr. 57). 

The explosive range of methane is 5 to 15'percent (Tr. 210). 

The inspector recorded two-tenths of one percent methane in the subject area (Tr. 56), and opined that he did not consider the reading 

as indicating a hazardous methane level (Tr. 80). However, both 

Inspector Webb and Mr. Budzak agreed that it is impossible to predict 

the level of methane liberation in the face area when coal is being 

extracted with a continuous miner (Tr. 55-56, J27). The largest 

quantities of methane are released from a face when coal is being 

extracted (Tr. 98). The section does not have a history of sudden 

methane releases (Tr. 114). 

According to Inspector Webb, the miners were taking approximately 

6 inches of rock from the top with the continuous miner (Tr. 56), 

conduct which can cause a frictional ignition at the face (Tr. 56-57). 

Although the inspector stated that an ignition at the face can result 

in injuries to miners working or operating machinery in the working 

place (Tr. 57), he classified an occurrence as improbable (Tr. 57). 

It should be recalled that the inspector computed the mean air 

velocity as 33 feet per minute. He considered this reading low 

because it represented just over half the amount of air required by 

30 CFR 75.301-4 (Tr. 96-97). Although.he expressed the opinion that 

the velocity was insufficient to carry away methane and respirable 

dust (Tr. 57), he admitted a lack of knowledge as to what relationship 

33 feet per minute mean air velocity has to exposing a miner to 

respirable dust (Tr. 97). Although the mean air velocity has been 

rec9mputed as 31.27 feet per minute, the inspector's observations are 

still material to the gravity issue because both mean air velocity 

figures are approximately the same. 

Mr. Budzak, an expert in the field of air velocity measurement 

and face ventilation, who testified for Freeman, opined that a miner 

operator was not endangered by respirable dust because he would have 

been 20 to 22 feet from the dust area (Tr. 212). He stated that the 

air velocity figure cited by the inspector would not represent a 

dangerous or hazardous condition to a coal miner (Tr. 213-14). 

After consideration of all of the evidence, it is found that the 

violation was accompanied by a moderately serious degree of gravity. 

1247 
(c) Negligence of the Operator 

The low air velocity was caused by leakage in the exhaust tubing 

(Tr. 93-94). 

Although the preshift reports contained no reference to inadequate air in the subject area of the mine (Tr. 81), the inspector 

opined that the operator should have been aware of the condition (Tr. 

60). The machine was cutting coal when the order was issued (Tr. 60), 

although coal production could not have been underway for more than 

five minutes prior to the order's issuance (Tr. 117, 119). Mr. Lorne 

Boner, the foreman, had not taken air velocity. readings prior to 

commencing coal production (Tr. 116-17). 

"The inspector testified that when proper air velocity is maintained, a person standing within 30 feet of the inby end of the 

exhaust tube can often hear a rush of air entering the tube- (Tr. 58). 

The inspector could not~hear air rushing into the tube, which indicated to him that either a leakage in the tube or some other_ problem 

was presen·t (Tr. 59) • 

Accordingly, it is found that the Respondent demonstrated 

ordinary negligence. 

(d) Good Faith in Securing Rapid Abatement 

The order was issued at 10:40 a.m. on January 26, 1977, and was 

terminated 20 minutes later (Exhs. M-3, M-4, Tr. 92). The tubing 

was sealed to ameliorate the leakage problem, and the ends of tubing 

installed in other working places were moved outby to further reduce 

the leakage (Tr. 93-94). After abatement, the mean air velocity was 

computed as 63 feet per minute (Tr. 93). Accordingly, it is found 

that the Respondent demonstrated good faith in securing rapid abatement of the violation. 

3. Order No. 1 LDC, January 3, 1977, 30 CFR 75.301-4 

(a) Occurrence of Violation 

At 5:25 p.m. on January 3, 1977, MSHA inspector Lonnie D. Conner 

issued the subject order of withdrawal for a violation of 30 CFR 

75.301-4 at the Respondent's Orient No. 6 Mine (Exh. M-5, Tr. 127). 

The subject order of withdrawal (Exh. M-5) describes the observed 

"condition or practice" as follows: 

The continuous mining machine in the 2nd North-West 

section, I.D. 067, was loading coal at the face of the 

No. 8 room, and the face was being ventilated with a mean 

air velocity of only 28 feet per minute. 

1248 
The air was measured with an approved magnehelic and 

pitot tube 20 feet outby the intake end of the exhaust 

tubing. 

The end of the exhaust tubing was approximately 10 feet from the 

face (Tr. 130). 

The inspector drilled a small hole in the rigid exhaust tubing, 

inserted the pitot tube, read the magnehelic gauge and applied the 

reading to the conversion chart (Tr. 132). He determined that 3,002 

cubic feet of air per minute was passing through the exhaust tubing 

(Tr. 132). He made measurements to determine the area of the working 

place (Tr. 132). It measured 14.5 feet by 7.5 feet (Tr. 132), yielding an area of 108.75 square feet. He rounded off this figure to 

109 square feet. He divided 3,002 CFM by 109 square feet, and reached 

a rounded off mean air velocity of 28 feet per minute (Tr. 132). He 

did not deduct the cross sectional area of the approved ventilation 

device as required by 30 CFR 75.301-4(b)(l)(ii) (Tr. 139). 

A recomputation, using the correct adjusted cross-sectional area 

of the working place, reveals the following: The working place 

measured 14.5 feet by 7.5 feet, yielding a cross sectional area of 

108.75 square feet. The 16 inch exhaust tubing has a cross-sectional 

area of 1.39 square feet (Tr. 208, 235). Therefore, the adjusted 

cross sectional area of the working place was 107.36 square feet. 

(108.75 square feet minus 1.39 square feet equals 107.36 square feet). 

3,002 CFM divided by 107.36 square feet yields a mean air velocity of 

approximately 27.96 feet per minute. 

A question is presented as to whether coal was being "cut, mined 

or loaded from the working face with mechanical mining equipment" 

within the meaning of 30 CFR 75.301-4(a). The Respondent contends 

that the Petitioner failed to overcome the Respondent's evidence that 

it was not cutting, loading or mining coal at the face when the 

inspector made his air velocity measurements (Respondent's PostHearing Brief, pp. 27, 28, 36). I disagree. 

The inspector testified that when he entered the room the continuous miner was at the face and .that through asking somebody he 

determined that five or six shuttle cars of coal had been loaded prior 

to the issuance of the order (Tr. 129, 135-36, 144). He did not see 

the actual subject matter that was loaded out (Tr. 144). Although 

the inspector had no present recollection as to whether he observed 

coal being loaded out, he concluded that he had observed such activity 

because an entry in his notes recorded that the miner was loading coal 

at the face of the No. 8 room (Tr. 144). 

Mr. Wesley Helm, a face boss at the Orient No. 6 Mine on 

January 3, 1977, testified that when he arrived on the section at 

approximately 4:45 p.m. (Tr. 160), he observed·rock from a rock fall, 

1249 
measuring approximately 1-1/2 to 2 feet in depth, on the floor of the 

No. 8 room almost the entire distance of the cut (Tr. 161). The roof 

was not completely bolted (Tr. 162). The extent of Mr. Helm's 

knowledge as to the activities occurring in the No. 8 room prior to 

the issuance of the order was revealed on direct examination as 

follows: 

Q. Would you have bolted that roof before you mined 

any coal? 

A. I had to clean up the rocks first. Then it is 

possible it wasn't completely cut up. There might have 

been room for a little bit of cutting yet without going 

out from under the bolts. I am not sure about that. 

Q. Well, did you proceed to load out the rock. 

A. I had the miner loading the rock in Room 8. 

I was finishing the bolting in Room 9. 

Q. Do you recall Mr. Conner taking his reading for 

which he issued the order? 

A. I didn't see him take the reading. I was over 

with the bolter crew in Room 9; 

Q. Until what time were you loading out rock in 

Room 8? 

.A. Until what time? 

Q. Yes, sir. 

A. I would say until 5:25 when Mr. Conner came in. 

He says they were loading coal. If so, it had to be they 

had finished the rock, and they had just hit the face for 

as much as I could tell. I wasn't there. Like I say, I 

was with the bolter crew. 

(Tr. 162~63)~ 

The foregoing testimony reveals that Mr. Helm was not present 

in the No. 8 room when the inspector conducted his air velocity 

measurements. He was uncertain as to precisely when the loading of 

rock ceased, and his testimony implies that some coal could have 

been loaded in the inspector's presence. 

Exhibit 0-4 reveals that the Respondent started loading coal at 

8:35 p.m., and that 25 buggies of coal were loaded out (Tr. 165). 

1250 
Normally, approximately 75 to 80 buggies of coal would be loaded out 

on ·a shift, absent cleanup difficulties or mechanical problems (Tr. 

165). 

However, Exhibit 0-4 cannot be read for the proposition that 

absolutely no coal was loaded prior to the 5:25 p.m. issuance of the 

order because Mr. Helm's testimony reveals that a small amount of 

coal could have been loaded a few moments before 5:25 p.m. 

Accordingly, it cannot be found that the Respondent has rebutted 

the evidence adduced by the Petitioner on the question of coal 

production. 

Accordingly, it is found that a violation of 30 CFR 75~301-4 has 

been established by a preponderance of the evidence in that the mean 

air velocity was 27.96 feet per minute in a working place where coal 

was being cut, mined or loaded from the working face with mechanical 

mining equipment. 

(b) Gravity of the Violation 

The explosive range for methene is 5 to 15 percent (Tr. 210). 

Methane is normally liberated in greatest quantity at the face when 

coal is being cut and loaded (Tr. 135). It is not possible to predict when a large amount of methane will be liberated (Tr. 227). The 

inspector classified the mine as gassy, but his methane readings 

revealed no accumulations of methane at the face (Tr. 135). The miner 

was not cutting coal when the methane readings were taken (Tr. 135). 

The inspector classified the violation as serious because the 

ventilation was not adequate to deal with the liberation of a sizable 

amount of methane (Tr. 134). According to the inspector, 28 feet 

per minute mean air velocity is not sufficient to carry coal dust 

from the face areas without contaminating the mining machine operator's breathing air (Tr. 134). 

Mr. Budzak disagreed, stating that the air velocity was sufficient to alleviate respirable dust problems for the miner operator 

(Tr. 212-14). 

After consideration of all of the evidence, it is found that "the 

violation was accompanied by a moderately serious degree of gravity. 

(c) Negligence of the Operator 

According to Mr. Helm, the preshift reports indicated low air 

on the return (Tr. 159-60). 

The exhaust tubing contained several flexible ribbed, canvastype couplings that increased the air resistance in the tube (Tr. 

130-137). The flexible couplings were being employed to negotiate 

1251 
c·orners in lieu of rigid couplings (Tr. 137). The use of the flexible. couplings caused the Respondent to experience considerable difficulty in maintaining 60 feet per minute mean air velocity (Tr. 138). 

Additionally, the Respondent was not sealing the joints between the 

sections of rigid tubing, thus contributing further to the air 

velocity problem (Tr. 138). 

Accordingly, it is found that the Respondent demonstrated 

slightly more th~n ordinary negligence. 

(d) Good Faith in Securing Rapid Abatement 

The order was issued at 5:25 p.m. and terminated at 7:45 p.m. 

(Exh. M-5, M-6, Tr. 127). 

The ribbed joints were removed. The ventilation tubing was taken 

down and reinstalled. The joints were sealed to prevent air leakage 

(Tr. 138). After abatement, the mean air velocity exceeded 60 feet 

per minute (Tr. 138). 

Accordingly, it is found that the Respondent demonstrated good 

faith in securing rapid abatement of the violation. 

\ 

4. Order No. 1 LDC, January 19, 1977, ~O CFR 75.301-4 

(a) Occurrence of Violation 

At 9:50 a.m. on January 19, 1977, MSHA inspector Lonnie D. Conner 

i"ssued the subject order of withdrawal at the Orient No. 6 Mine citing 

the Respondent for a violation of 30 CFR 75.301-4 (Exh. M-7, Tr. 168). 

The subject order of withdrawal (Exh. M-7) describes the observed 

"condition or practice" as follows: 

Coal was being loaded at the face of No. 22 room 

of the 15th North-East Section, I.D. 068, and the far.e 

was being ventilated with a mean air velocity of only 

44 feet per minute. The air was measured with an 

approved magnehelic gage and pitot tube 20 feet outby 

the intake end of the exhaust tubing. 

The testimony of Mr. Ray E. Williams confirms that two loads of 

coal were mined prior to.the issuance of the order (Tr. 197). 

The inspector computed the quantity of the air passing through 

the exhaust tube as 4,747 cubic feet per minute (Tr. 172). The working place measured 16.5 feet by 6.5 feet (Tr. 170, 173), yielding an 

area of 107.25 square feet (Tr. 173). He rounded off the area to 

107 square feet (Tr. 173), divided 4, 747 by 1_07 and thereby computed 

the mean air velocity as 44 feet per minute (Tr. 173). In computing 

the cross sectional area of the working place, he did not make an 

adjustment for the area of the exhaust tubing (Tr. 181). 

1252 
A recomputation, using the correct adjusted cross sectional area 

of the working place, reveals the following: The working place measured 16.5 feet by 6.5 feet, yielding a cross sectional area of 

107.25 square feet. The 16 inch exhaust tubing has a cross sectional 

area of 1.39 square feet (Tr. 208, 235). Therefore, the adjusted 

cross sectional area of the working place was 105.86 square feet. 

(107.25 square feet minus 1.39 ·square feet equals 105.86 square feet). 

4,747 CFM divided by 105.86 square feet yields a mean air velocity of 

approximately 44.84 feet per minute. 

Accordingly, it is found that a violation of 30 CFR 75.301-4 has 

been established by a preponderance of the evidence in that the mean 

air velocity was approximately 44.84 feet per minute in a working 

place where coal was being cut, mined or loaded from the working face 

with mechanical mining equipment. 

(b) Gravity of the Violation 

The inspector classified the violation as serious because the 

mean air velocity was insufficient to carry away either a large accumulation of methane or the coal dust suspended in the air (Tr. 173). 

A face ignition can occur in the presence of a buildup of methane 

(Tr. 173). The inhalation of coal dust can eventually develop into 

black lung disease (Tr. 173-174). 

It is not possible to predict when sudden releases of methane 

from the face will occur during the mining operation (Tr. 174, 227). 

Methane is explosive in the 5 to 15 percent range (Tr. 210). The 

inspector took methane readings and detected no methane accumulation 

at the face (Tr. 171). Serious injury or death could result from an 

ignition (Tr. 174). The number of persons affected would depend upon 

the magnitude of the ignition (Tr. 174). The crew usualiy consists 

of 8 or 9 workmen (Tr. 174). 

According to the inspector, the seriousness of the violation 

would not be diminished by the presence of water sprays on the cutting 

head of the.miner because the spray does not precipitate out all 

respirable dust (Tr. 182-83). 

Mr. Budzak testified that the air velocity as described by the 

inspector, was sufficient to prevent a coal miner from being exposed 

to a dangerous or hazardous condition (Tr. 212-14). 

After consideration of all of the evidence, it is found that the 

violation was accompanied by a moderate degree of gravity. 

(c) Negligence of the Operator 

Mr. Ray E. Williams, the Respondent's foreman, permitted coal 

production to begin prior to conducting air velocity tests in the 

1253 
exhaust tube (Tr. 195-97). When he took his readings, he discovered 

that the air velocity was·45 or 46 cubic feet pe~ minute (Tr. 195). 

He testified that immediately upon discovering the low air velocity, 

but immediately before the inspector's arrival, he ordered the 

machine shut down (Tr. 196). Two loads of coal were mined during the 

course of approximately 4 minutes (Tr. 197). 

According to the inspector, the last 10 joints in the tubing had 

not been sealed and there was one flexible ribbed, canvas type connecting joint in the line of tubing (Tr. 170). He testified that 

these characteristics indicated operator negligence because a previous 

discussion with mine personnel had resulted in' a concensus that the 

tubing joints had to be sealed and the flexible-type couplings removed 

to assure adequate face ventilation (Tr. 174-75). 

Accordingly, it is found that the Respondent demonstrated 

slightly more than ordinary negligence. 

(d) Good Faith in Securing Rapid Abatement 

The order was issued at 9:50 a.m. and terminated at 11 a.m. 

(Exhs. M-7, M-8, Tr. 168, 175). Abatement was achieved by sealing 

the joints in the exhaust tubing (Tr. 175). The corrective action 

increased the mean air velocity to greater than 60 feet per minute 

(Tr. 175). . 

Accordingly, it is found that the Respondent demonstated good 

faith through securing rapid abatement of the violation. 

C. Order No. 1 LDC, January 12, 1977, 30 CFR 75.400 

(1) Occurrence of Violation 

MSHA inspector Lonnie Conner conducted a regular health and 

safety inspection at the Respondent's Orient No. 6 Mine on 

January 12, 1977 (Tr. 7). He walked the Main West North conveyor 

belt, arriving in the area at approximately 9:30 a.m. (Tr. 7). He 

issued the subject order of withdrawal at 11 a.m. (Tr. 6, Exh. M-1), 

citing the Respondent for violating the mandatory safety standard 

embodied in 30 CFR 75.400 in that accumulations of combustible materials were observed along the Main West North conveyor belt (Tr. 8, 

Exh. M-1). 

Two airlocks were located across the belt travel entry approximately 5 or 6 crosscuts from the point where the subject belt dumped 

onto the Main North belt (Tr. 8). The two airlocks were approximately 

70 to 80 feet apart (Tr. 8). Along that, 70 to 80 foot distance, the 

inspector observed float coal dust, coal dust and loose coal (Tr. 8). 

Immediately inby the first airlock, he observed large accumulations 

of coal dust and float coal dust (Tr. ~). The coal dust was 5 to 

1254 
6 inches in depth where the air gbing through the airlock was blowing 

it off the belt (Tr. 9). The float coal dust was not only in the 

belt entry, but also in the intersecting crosscuts and in the en~ry 

immediately north of the belt line (Tr~ 8). The inspector testified 

that the instability of float coal dust renders it difficult to 

measure (Tr. 10). 

The inspector proceeded from the inby airlock, traveling west on 

the south side of the belt (Tr. 10). He observed accumulations of 

coal and coal dust 2 to 6 inches deep all along the south side of the 

belt and underneath the belt up to a point 70 feet outby the tailpie~e, a distance of approximately 2, 300 feet '(Exh. M-1, Tr. 10). 

The 2,300 feet was determined by taking a measurement off the mine 

map (Tr. 11). 

Float coal dust was observed on rock dusted surfaces along the 

belt entry and intersecting crosscuts from the inby airlock to the 

1,150 foot mark (Tr. 12, Exh. M-1). 

All depths were measured with a steel tape (Tr. 10, 11). All 

areas cited were dry, including the float coal dust (Tr. 12). The 

inspector testified that the belt was in operation and that the 

conditions were observed during a production shift (Tr. 7), but he 

did not recall whether coal was being loaded (Tr. 7). 

The witnesses disagreed as to the extent of the combustible accu- . 

mulations. The inspector described them as deep and continuous (Tr. 

2'50), while the testimony of Mr. Peter Helmer, the mine superintendent, portrays a different picture. Mr. Helmer inspected the area 

cited in the subject order of withdrawal immediately after its issuance (Tr. 267). He testified that he observed intermittent piles 

containing loose coal, rock and coal dust along the south side of the 

belt. According to Mr. Helmer, it was not a continuous spillage (Tr. 

267). He indicated that a problem existed in that area of the mine 

with rock falling from the roof and ribs, a condition that makes any 

accumulation appear more extensive than if it consists only of coal 

(Tr. 267). However, he did not mention specifically either the presence or the absence of float coal dust in the subject area, while the 

inspector indicated that the float· coal dust was present for a length 

of 1,150 feet (Tr. 10, 12). 

In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-19i:·, 

OSHD par. 22,088 (1977), motion for reconsideration denied, 8 IBMA 

196, 1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations 

Appeals (Board) held that the presence of a deposit or accumulation 

of coal dust or other combustible materials in the active workings 

of a coal mine is not, by itself, a violation. 

In that case, the Board held that MSHA must be able to prove: 

1255 
(1) that an accumulation of combustible material 

existed in the active workings, or on electr.ical 

equipment in active workings of a coal mine; 

(2) that the coal mine operator was aware, or, 

by the exercise of due diligence and concern for the 

safety of the miners, should have been aware of the 

existence of such accumulation; and 

(3) that the operator failed to clean up such 

accumulation, or failed to undertake to clean it up, 

within a reasonble time after discovery, ~r, within 

a reasonable time after discovery should have been 

made. 

8 IBMA at 114-115. 

The Respond~nt in its post-hearing brief, argues that MSHA has 

failed to prove that an accumulation of combustible materials existed 

in the mine' s active workings as described in the or.der of withdrawal 

(Exh. M-1)° (Respondent's Post-Hearing Brief, pp. 52). In support of 

its ?Osition, the Respondent points to the testimony of Mr. Helmer, 

which indicates that some rock was intermixed with the accumulations, 

and argues that samples were not taken and analyzed to determine the 

combustibility of the accumulation. I disagree with the Respondent's 

theory for two reasons: First, visual observations are sufficient to 

prove a violation of 30 CFR 75.400. Coal Processing Corporation, 

2 IBMA 336,, 345-46, 80 I.D. 748, 1973-1974 OSHD par. 16,978 (1973). 

Second, the rebutting evidence adduced by the Respondent is insufficient to establish that rock was present in sufficient quantities to 

render the accumulations i~ert. Accordingly, it is found that accumulations of combustible materials were present in the mine's active 

workings as described in the order of withdrawal (Exh. M-1). 

The second question presented is whether the operator knew or 

should have known of the accumulation's presence. The preshift report 

for the examination conducted between 4 a.m. and 8 a.m. on January 12, 

1977 (Exh. 0-6) states: "The 4th main west belt dirty, 800 to 85011 

(Tr·. 259). This entry refers to the belt cited by the inspector (Tr. 

258, 259). According to Mr. Helmer, the entry refers to a 50 foot 

section of belt iocated at the second north belt transfer point (Tr. 

259). The preshift reports for the 2 previous shifts, (Exh. 0-7, 

0-8) described the subject belt as "safe" (Tr. 260-61). Accordingly, 

it is found that the Respondent first gained knowledge of an accumulations problem along the subject belt through the entry in Exhibit 

0-6. 

It should be pointed out that the 50 foot area described in 

Exhibit 0-6 is considerably less than the area cited in the subject 

order of withdrawal (Exh. M-1). However, the evidence is insufficient 

1256 
to conclude that the Respondent knew or should have known of the more 

extensive accumulation problem for the following reasons: First, 

there is no credible evidence in the record to establish that the 

preshift examination was less than thorough. Second, the inspector's 

estimate that the condition had existed for more than 16 hours was 

based on his observations of the extent of the accumulations which he 

interpreted in conjunction with his belief that :the area had been 

reported dirty on two successive shifts (Tr. 13, 14, 250). Since this 

misaken belief as to the entries in the preshift reports for the three 

preshift examinations immediately preceding the order of withdrawal 

figured conspicuously in his time estimate, his opinion that the 

accumulations had existed for two shifts cannot be accepted. 

The remaining question presented is whether the Respondent failed 

to cleanup, or failed to undertake to cleanup, the accumulations 

within a reasonable time after discovery. As to the issue of 

"reasonable time," the Board stated: 

As mentioned in our discussion of the responsibilities imposed upon the coal mine operators, what consitutes 

a "reasonble time" must be determined on a case-by-case 

evaluation of the urgency in terms of likelihood of the 

accumulation to contribute to a mine fire or to propagate 

an explosion. This evaluation may well depend upon such 

factors as the mass, extent, combustibility, and volatility of the accumulation as well as its proximity to an 

ignition source. 

8 IBMA at 115. 

The Board further stated: 

With respect to the small, but inevitiable aggregations of combustible materials that accompany the ordinary, routine or normal mining operation, it is our view 

that the maintenance of a regular cleanup program, which 

would incorporate from one cleanup after two or three 

production shifts to.several cleanups per production 

shift, depending upon the volume of production involved, 

might well satisfy the requirements of the standard. On 

the other hand, where an operator encounters roof falls, 

or other out-of-the ordinary spills, we believe the operator is obliged to cl~an up the combustibles promptly upon 

discovery. Prompt cleanup response to the usual occurrences of excessive accumulations of combustibles in a coal 

mine may well be one of the most crucial of all the 

obligations imposed by the Act upon a coal mine operator 

to protect the safety of.the miners. 

8 IBMA at 111. 

1257 
Only meager evidence is contained in the record as to the Respondent's cleanup plan. The·extent of the inspector's knowledge on this 

subject is revealed in the following question-and-answer dialogue with 

counsel for the Petitioner: 

Q. Do you know if there was a plan in effect for 

the cleaning up of the spillage along these belt lines? 

A. No, sir; not at that time, I didn't. 

Q. Had you ever seen a plan? 

A. I had never seen a plan. 

Q. Have you any idea that there was a plan in 

effect for cleanup at the mine? 

A. No, sir; not as far as belt lines go. I am 

unaware of any cleanup plan for belt lines. The only 

thing· that I know is that men were assigned to some 

belts, some belts they weren't, and men were assigned 

as needed-, as determined by the mine manager, to certain 

belts. 

Q. Do you know if men were regularly assigned to 

this belt? 

A. No, I don't. 

(Tr. 15). 

Furthermore, at the time the order was written, the inspector 

made no attempt to determine whether a cleanup program existed for 

the belt (Tr. 36). The s.ole evidence adduced by the Respondent as 

to cleanup .Procedures at the mine was Mr. Helmer's statement that 

belt cleaners are regularly assigned to clean belt transfer points 

at the start of every shi~t (Tr. 265). 

Proof of the inadequacy or nonexistence of a cleanup plan is 

central to the question of whether the operator failed to cleanup, or 

failed to undertake to cleanup, the accumulations of combustible 

materials within a reasonable time after the operator knew or should 

have known of their existence. Therefore, such proof must be adduced 

by MSHA as part of its prima facie case if the inadequacy or nonexistence of the cleanup plan is to provide the corner stone for a 

finding on the question of reasonble time. This conclusion is reinforced by the Board's statement that proof of the absence of a regular 

cleanup program, coμpled with the presence of any accumulation, might 

be sufficient to support a violation of 30 CFR 75.400. Old Ben Coal 

Company, 8 IBMA 196, 198, 1977-1978 OSHD par, 22,328 (1977). (denying 

1258 
the government's motion for reconsideration of the decision in Old Ben 

Coal Co., 8 IBMA 98). The Board's statement indicates that the burden 

of going forward with the evid.ence is borne by MSHA. 

Both the inspector's uncertainty as to the existence of regular 

cleanup procedures for 'belts and the limited extent of his knowledge 

as to the assignment to cleanup men to the belts, cannot be deemed 

sufficient proof of the absence or inadequacy of a regular cleanup 

program. 

However, this conclusion does not end the inquiry, because the 

crux of a violation is the failure to cleanup,· or undertake to 

cleanup, the accumulations within a reasonable time after discovery. 

The above-mentioned proof as to the cleanup plan, although an effec~ 

tive ·gauge of the reasonable time factor, is by no means the exclusive 

method of proof. All that Old Ben requires of an inspector before 

issuing a citation is that he make a sound judgment as to when the 

operator acquired knowledge of the accumulation's presence and whether 

cleanup commenced within a reasonable time. 

Although the inspector's background and training qualified him 

as a11 expert, he gave no affirmative opinion on the reasonble time 

issue. However, sufficient inferences can be drawn from his testimony to assess his thoughts thereon. 

The inspector testified that he checl).ed the preshift books, and 

that the belt had been recorded "dirty" for two shifts prior to his 

inspection (Tr. 13). The only notations that he took from the books 

were the approximate footage marks for the recorded accumulations 

(Tr. 13). According to the inspector, the belt was recorded dirty 

from the 790 foot mark to the 818 foot mark·and, to the best of his 

recollection, from the 800 foot mark to the 880 foot mark, (Tr. 13), 

which totaled approximately 107 feet (Tr. 14). 

The inspector testified that, in his opinion, the coal and coal 

dust accumulated "over a period of time" (Tr. 13). Although he never 

expressed a firm opinion as to the approximate duration of the accumulations existence, he did state on direct examination that the preshift books indicated that the condition had existed on two previous 

shifts (Tr. 14). He interpreted this as meaning in excess of 16 hours 

(Tr. 14). On redirect examination, the inspector testified as 

follows: 

Q. Mr. Conner, did visual observations which you 

had before you have any bearing on your determination 

on how long the accumulations had been there? 

A. Yes, sir, they did. 

Q. Could you explain how? 

1259 
A. The accumulations were deep and continuous. In 

one particular spot, there was more than three ton of 

coal in one particular spot along the belt that had got 

there from some kind of dumping. So, I assume., going 

along with the pre-shift examiners' books, it is my 

opinion that the accumulations had been there for some 

time. 

(Tr. 249-50). 

The inferences drawn from the above-quoted passage, coupled with 

the inspector's recollection as to the time periods covered in the 

relevant preshift reports, lead to the conclusion that the depth and 

extent of the accumulations were interpreted in conjunction with the 

preshift reports in reaching the conclusion that the coal and coal 

dust had been present for "some time." These factors evidently led 

to the conclusion that the accumulations had been present for 

2 shifts;..!.·~·, more than 16 hours. 

However, the preshift reports do not support the inspector's 

time estimate. The report for the preshift examination conducted 

between 4 a.m. and 8 a.m. on January 12, 1977 (Exh. 0-6) record~d a 

spillage problem on the subject belt between "800" and "850," a 

distance of 50 feet (Tr. 259). The reports for the preshift examinations conducted between 8 p .m. and 12 midnight on January 11, 1977 

(Exh. 0-7) and between 12 noon and 4 p.m. on January 11, 1977 (Exh. 

0-8) reveal no accumulations problems along the subject belt (Tr. 

260-61). Thus, a key factor in the inspector's equation has been 

proven in error. 

The second factor involves the presence of cleanup personnel 

along the subject belt. The inspector testified that he saw three 

workmen and one boss performing cleanup operations at th.e tailpiece 

of the subject belt (Tr. 37). He assumed that they had started at 

the beginning of the shift, an assumption confirmed by the testimony 

of Mr. Helmer (Tr. 266). The inspector opined that more than 

25-manshifts would have been required to remove the accumulations and 

rock dust along the belt (Tr. 15h 

It can be inferred from the above-mentioned factors that they 

provide the basis for whatever conclusion the inspector reached as to 

whether the operator failed to undertake cleanup procedures within 

a reasonable time after the operator acquired knowledge of the accumulations' presence. Since the time element, a key factor in this 

equation, was in error, and since the inspector.failed to make a 

determination as to the cleanup procedures at the mine, it cannot be 

found that he made a sound judgment as required by Old Ben as to how 

long the accumulations had existed and whether the operator failed 

to c.leanup, or undertake to cleanup, the accumulations within a 

reasonable time. 

1260 
In fact, the evidence reveals that the Respondent first became 

aware of an accumulations problem along the subject belt through the 

preshift report recording the findings of the preshift examination 

conducted between 4 a.m. and 8 a.m. on January 12, 1977 (Exh. 0-6). 

The Respondent assigned men to the belt at the beginning of the 8 a.m. 

to 4 p .m. shift on January 12, ·1977, in response to the entry in 

Exhibit 0-6 (Tr. 265-66), and these men were in the process of cleaning the belt during the inspector's inspection tour (Tr. 37, 279). 

As the Board observed in Old Ben: "When a coal mine operator 

undertakes, or is engaged in, cleaning up accu1nulations ·of combustible ., 

materials, he is then certainly not permitting such accumulations." 

8~ IBMA at 112. 

Since the Respondent commenced cleanup procedures immediately 

upon learning of the problem, it canrtot be found that it was permitting them ·to accumulate. Furthermore, this interpretation of the 

facts is also set forth in the Respondent-' s post-hearing brief 

(Respondent's Post-Hearing Brief, pp. 53-54). It is interesting to 

note, although it is not a controlling factor, that the Petitioner 

did not submit a reply brief indicating any disagreement with this 

interpretation. 

Accordingly, it is found that the.Petitioner has failed to establish a violation of 30 CFR 75.400 by a preponderance of the evidence. 

D. History of Previous Violations 

Exhibit 3 is a computer printout of Office of Assessment records 

containing the history of paid penalty assessments for the Orient 

No. 6 Mine, beginning January 1, 1970 and ending October 28, 1976. 

The history of previous violations during the 21 months prior to 

January 19, 1977, as reported in Exhibit 3, is contained i.n the 

following chart: 

30 CFR 

Standard 

All sections 

75.301-4 

(Note: 

Year 1 

(12 Months) 

1/20/75-1/19/76 

181 

0 

Year 2 

(9 Months) 

1/20/76-10/28/76 

133 

2 

All figures are approximations) 

E. Appropriateness of Penalty to Operator's Size 

Totals 

314 

2 

The Freeman United Coal Mining Company produces approximately 

6,221,752 tons of coal per year. (Stipulations embodied in transcript 

1261 
of the September 26, 1978, proceedings, pp. 5, 11). The Orient No. 6 

Mine produces approximately 1,159,797 tons of~coal per year. (Stipulation embodied in transcript of the September 26, 1978, proceedings, 

pp. 5, 11). . 

F. Effect on Operator's Ability to Continue in Business 

Counsel for the Respondent concedes in his post-hearing brief 

that assessment of the maximum penalty will have no effect on the 

Respondent's ability to continue in business (Respondent's PostHearing Brief, pp. 33, 38, 42, 56). Furthermore, the Interior Board 

of Mine Operations Appeals· has held that evidence relating to whether 

a civil penalty will affect the operator's ability to remain in 

business is within the operator's control, resulting in a rebuttable 

presumption that the operator's ability to continue in business will 

not be affected by the assesssment of a civil penalty. Hall Coil 

Company, 1 IBMA 175, 7.9 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). 

Therefore, I find that penalties otherwise properly assessed in this 

proceeding will not impair the operator's ability to continue in 

business. 

VI. Conclusions of Law 

(1) Freeman United Coal Mining Company and its Orient No. 6 

Mine have been subject to the provisions of the Federal Coal Mine 

Health and Safety Act of 1969 and the 1977 Mine Act during the 

respective periods involved in this proc~eding. 

(2) Under the Acts, the Administrative Law Judge has jurisdiction over the subject matter of and the parties to this proceeding 

(3) MSHA inspectors Kirby L. Webb and Lonnie D. Conner were 

duly authorized representatives of the Secretary of Labor at all 

times relevant to the issuance of the orders of withdrawal which 

are the subject matter of this proceeding. 

(4) The violations charged in Order No. 1 KLW, January 26, 1977, 

·30 CFR 75.301-4; Order No. 1 LDC, January 3, 1977, 30 CFR 75.301-4; 

and Order No. 1 LDC, January 19, 1977, 30 CFR 75.301-4 are found to 

have occurred as set forth in Part V, supra. 

(5) Petitioner has failed to establish a violation of 30 CFR 

75.400 as relates to Order No. 1 LDC, January 12, 19z7. 

(6) All of the conclusions of law set forth in Part V, supra, 

are reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

Freeman United Coal Mining Company submitted a post-hearing 

brief. MSHA submitted no post-hearing brief. Such brief, insofar as· 

1262 
it can be.considered to have contained proposed findings and conclusions, has been considered fully, and except to the extent that such 

findings and conclusions have been expressly or impliedly affirmed in 

this decision, they are rejected on the ground that they are, in 

whole or in part, contrary to the facts and law or because they are 

immaterial to the decision in this case. 

VIII. Penalty Assessed 

Upon consideration of the entire record in this case and the , 

foregoing findings of fact and conclusions of law, I find that the 

assessment of penalties is warranted as follows: 

Order No. Date 

1 KLW 01/26/77 

1 LDC 01/03/77 

1 LDC 01/19/77 

30 CFR Standard 

75.301-4 

75.301-4 

75.301-4 

ORDER 

---

Penalty 

$ 800 

600 

600 

$2,000 

Respondent is ORDERED to pay the civil penalty in the amount of 

$2,000 assessed in this proceeding within 30 days of the date of this 

decision. 

IT IS FURTHER ORDERED that the petition be DISMISSED as relates 

to Order No. 1 LDC, January 12, 1977, 30 CFR 75.400. 

hnF.~ ~ 

Issued: 

Distribution: 

Leo J. McGinn, Esq., MSHA, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Sidney Salkin, Esq., Office of the Solicitor, Room 14480-Gateway 

Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Harry M. Coven, Esq., Goul~ & Ratner, 300 West Washington 

Street, Chicago, IL 60606 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

1263. 
FEDERAL MINE SAFEYY AND MEA~.:r~ REVH~:w COMM&SS§ON 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

4015 WILSON BOULEVARD 

ARLINGTON, VlRG INIA 22203 

.b.UG ._ 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner' 

Docket No. NORT 79-14-P 

A.c. No. 44-03613-03001 

v. 

No. 5-A Mine 

HARMAN MINING CORPORATION, 

Respondent Docket No. NORT 79-51-P 

A.c. No. 44-04559-03001 

Appearances: 

Before: 

No. 3-A Mine 

Docket No. NORT 79-57-P 

A.C. No. 44-03614-03004V 

No. 5-B Mine 

DECISION 

Leo J. McGinn, Esq. , Office of the Solicitor, Depart- · 

ment of Labor, for Petitioner; 

Robert M. Richardson, Esq., and Peter Richardson, 

Esq., Richardson, Kemper, Hancock & Davis, Bluefield, 

West Virginia, for Respondent. 

Administrative Law Judge Michels 

On June 19, 1979, a hearing was held in Abingdon, Virginia, for 

the above-captioned cases, at which both parties were represented by 

counsel. At this hearing, the following action was taken on the 

cases: 

NORT 79-14-P 

In this case, counsel for Petitioner moved to withdraw its petition for the assessment of civil penalties regarding the alleged vio-

"iations docketed therein (Tr. 4). 1/ As grounds for the proposed 

action, Petitioner stated the following: 

1/ Exhibit "A" of the petition for assessment of civil penalties 

listed 13 other citations besides the four involving 30 CFR 75.1710. 

At the hearing, Petitioner advised that these other alleged violations had been settled at the assessment conference level and that 

the petition had been incorrect in so listing these (Tr. 6-7). 

1264 
Your Honor, Docket Number NORT 79-14-P consists of 

four alleged violations- of 30 CFR 75.1710 issued in April, 

1978. As the result of facts uncovered prior to this hearing, MSHA moves at this time to withdraw the petition for 

the assessment of civil penalty for each of these viola~ions 

on the basis that a technical investigation of the mine conducted on May 5th, or prior to May 5th and reported to MSHA 

on May -- excuse me, on May 5, 1976, a petition for modification under Section 30, seeking to be released from the 

requirements of 75.1710. The technical investigation was 

subsequently conducted, in which it was determined that the 

mining heights ranged from thirty-seven to rorty-eight inches, 

and that the mine consisted of undulating bottom conditions. 

In each of the instances involved in the allegations here, 

they were terminated on the basis that the application was 

withdrawn and the mines permanently sealed and abandoned in 

May, 1978. In a letter from the district office to the MSHA 

national office, received in May, 1978, this was .verified, 

and that the bottom conditions were undulating and the mine 

mining 4eights did range below the minimum forty-two inches 

requirement. Because of the large number of petitions for 

modification which were currently under consideration and 

because of the change over from the Interior to Labo.r, the 

decision was not issued until November, 1978, at which time 

the petition was granted and the proceeding was dismissed. 

Further investigation with the MSHA field office determined 

that at the time violations were issued, the mine mining 

heights did range to a low of thirty-seven inches, below the 

mandatory requirement of forty-two inches, and the bottom was 

continually undulating at that height. And that MSHA felt it 

could not sustain the burden of proof required under 75.1710, 

and moves to withdraw the petition. 

(Tr. 4-6). 

Respondent did not object to the proposed action. Thereupon, a 

decision was issued from the bench granting Petitioner's request to 

withd~aw its petition for assessment and the proceeding was dismissed 

(Tr. 8). I hereby AFFIRM that ruling. 

NORT 79-51-P 

This docket involves one violation of 30 CFR 75.400. The regulation provides that "[c]oal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other combustible materials, 

shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein." 

After considering the evidence which both parties placed on the 

record, a decision was issued from the bench which sets forth findings 

1265 
as to the fact of the violation and the statutory criteria. This 

decision. from pages 84-91 of the transcript, with grammatical corrections and some changes where the text is garbled, is set forth 

below: 

The first matter that I have to decide, of course, is 

whether or not there was a violation and if there is found 

to be a violation, then I have to make findings from this 

record on the criteria in order to assess the appropriate 

penalty. 

Much was made of the Old Ben decision, that is, 8 IBMA 

98, (1977), and that was by the Board of Mine Operations 

Appeals, which reviewed the case coming up under the Coal 

Mine Act. Now then, I have had the opportunity to review 

this particular decision and I won't say that the words that 

I am now going to state are the last word on the matter, but 

here is my belief: that the decision lays down certain criteria for the inspectors to follow and I am going to hold at 

least for now, that this is to be discretionary and advisory. 

I don't say it isn't important, -::hat maybe the inspector 

should follow that and perhaps by failing to follow it, 

maybe the Secretary takes the risk of not sustaining its 

case when it gets into court. But I am going to hold that 

the mere fact of the failure to follow that would not mean 

that MSHA could not have a sustainable case. 

There are, however, certain other requirements which 

the Board has laid down and I believe those are requirements 

which I would have to follow in assessing this case. And the 

first one is that an accumulation of a combustible material 

existed in the active workings and on electrical equipment 

in the active workings of a coal mine. My finding on that 

is that there were combustible accumulations here. I w~ll 

give you the reason. First, I want to state, however, that 

none of these findings at this point bear on either the 

seriousness or the degree of negligence. I am deaHng merely 

with the fact of the violation •. My reason for finding that 

there was an accumulation is based on the inspector's testimony. I accept his testimony that there was relatively fine 

dust in an area, covering I guess anywhere from ten by ten 

to fifteen feet around the tail piece, and up to three inches 

in depth and tapering off. I don't suppose that this would 

be a large accumulation, but I think that it is a pile of 

dust and it did accumulate. The mere fact that he didn't 

see it accumulating at the time, I don't think is important. 

It was there and it had accumulated, at least insofar as 

whether it was an accumulation within the meaning of the 

Act. And certainly it was of a combustible material since 

it was coal and coal dust. 

1266 
The next requirement -- this is again according to the 

Board -- that the coal mine operator was aware and by exercise of due diligence and concern for safety of the miners 

should have been aware of the existence of such accumulation. 

To continue on the question of awareness, my finding would 

be ·that the-operator should have been aware of this. And I 

will try to give my reasons here if I can. The inspector 

was the only Witness that testified that saw or was near 

this accumulation until after it was cleaned up. Nobody 

testified as to having seen it beforehand, ~o the question 

of awareness it seems to me, depends to a degree on how long 

it was there. And whether, therefore, it should have been 

observed by the preshift inspector or onshift inspector or 

other people that normally inspect this area of the mine. 

And the length of time that it was there again depends to a 

degree on the inspector's testimony, or at least I accept 

his testimony as to the fact that it had been there for 

sometime and probably before that shift. In other words, 

it exis.ted from the prior shift. 

I recognize that others did testify there was a cleanup 

plan and it was regularly complied With and that, and the presumption being then, therefore, .that the accumulation could 

not have been there that long. But you see, nobody else had 

been at the site around this mine. The inspector made his 

evaluation based on the looks of it, the way in which it 

appeared to him that it had accumulated. It is possible 

that even though there is a plan in effect, it had been 

cleaned up within a reasonable time. It.is difficult to 

say. But there was nobody that testified that he was there 

on that shift or on the end of the ·last shift and that it 

wasn't there at that time. Any evidence like that I think 

would have certai'nl.y been sufficient to rebut the inspector's testimony, but on the basis of the record as I have 

it, I believe that I would have to give his testimony weight 

and I accept that and I find, therefore, that it was there 

for sometime and should have been noted. 

Furthermore, even if the plan was being. followed there 

was an accumulation that, again accepting the inspector's 

testimony, did create a potential hazard. It was up to the 

belt. It is true it wasn't over the roller, but it was up 

to the belt. It was being kicked up. If it was up that 

far, that it could be blown into the air, it seems to me 

that it certainly had the potential for a hazard there. So, 

therefore, even if the plan was being followed on a daily 

basis, it appeared to me, and I would say it was the kind of 

thing that should have been cleaned up on an accelerated 

basis or sometime during the course of the shift. 

1267 
That brings us down then to the third and final requirement which the Board has laid out, and that· is the operator 

failed to clean up the accumulation or failed to undertake 

to clean it up within a reasonable time after discovering or 

within a reasonable time after discovery should have been 

made. I believe I have already addressed that in my comments on how long the accumulation apparently existed I have 

made some notes here, and this may be somewhat repititious, 

but it is based on the inspector's testimony that this was 

comparatively fine dust even if not float coal dust, and it 

was being picked up by the belt. It was an accumulation 

that would need to be cleaned up, perhaps on ·an accelerated 

basis more than once a shift or without waiting for the 

normal once-a-shift cleanup. I recognize that Mr. O'Quinn 

did.testify that this was not, in his view, a real bad accumulation and it probably would not need to be cleaned up, 

in his view, until it had reached the roller, in which case 

it would create a hazard. And I am going to take that kind 

of testimony into account as far as the gravity is ·concerned, 

but I do-not give his testimony on that a great deal of 

_wejght otherwise insofar as the hazard involved is concerned. I conclude, therefore, that, that this accumulation did constitute a violation of 30 CFR 75.400. 

The criteria for the assessment of a penalty are: 

First, the history. As I previously indicated, there is 

no indication of a significant history, and I would so 

find. There apparently was no other violation that would 

involve this particular standard. 

Secondly, the company is small, based on the production of 700 tons a day and the employment of twenty or so 

miners. 

Good Faith. The mine operator did abate this violation 

promptly and in good faith. Based on G-2, which the inspector wrote, the coal dust and fine coal was removed promptly. 

There is another criterion; that is, whether the fine 

that would be assessed here would affect the opera.tor's · 

ability to continue in business and there was nothing 

adduced which would indicate any reasonable fine here would 

affect the operator's ability. So I so find. 

There are two other criteria; the first is negligence 

and I have already somewhat indicated, I believe, my finding on that in my finding on the fact of the violation. I 

believe that this operator should have known of an accumulation which has been shown had existed for sometime. I 

accept the statements that an oral cleanup plan was in 

1268 
effect and was being followed arid so therefore, it would 

mean this might have been an oversight or somehow it was 

overlooked. Also, I r~cognize the fact that there is some 

dispute that this was a pile or an accumulation which needed 

to be cleaned up immediately. It is to that extent, perhaps, 

partly a judgment proposition, and so I would find as the 

result, small or little negligence in the failure to clean 

up. 

Insofar as gravity is concerned I would find, based on 

the fact that it was a comparatively small accumulation, that 

it was not serious. I don't believe that I have ever had a 

matter in which an accumulation was of this relatively small 

size. I don't mean for a moment that this doesn't mean it 

couldn't be hazardous, depending on the conditions. And I 

have already indicated that I accept the inspector's statement. He was there and he saw it and he was able to make 

the judgment on the spot and I accept that. But I do have 

to agree that it was not very large, and as indicated by the 

fact that it was cleaned up in a very short time. 

(Tr. 84-91). 

Respondent was assessed a penalty of $25 for the violation (Tr. 

92). I hereby AFFIRM the above decision and penalty and it is ORDERED 

that Respondent pay the sum of $25 for the violation in NORT 79-51-P 

within 30 days of the date of the issuance of this decision. 

NORT 79-57-P 

This docket involves one violation of 30 CFR 75.200 which covers 

roof-control programs and plans. The pertinent portion of this standard reads: 

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. 

On the basis of the evidence which Petitioner and Respondent 

introduced at the hearing, a decision was issued from the bench which 

sets forth findings as to the fact of the violation and the statutory 

1269 
criteria. This decision found on pages 124-130 of the transcript, 

with grammatical corrections and some changes where the transcript is 

garbled, is set forth below: 

The first point that I must decide, obviously, is 

whether or not there was a violation as alleged. In looking at this, I tend to agree with Mr. Richardson, but don't 

go as far as he goes. Most of this can be reconciled 

between the testimony of Mr. Owens and the inspector, with 

the exception of Mr. Owens' testimony that he was there. 

Now, I don't know how I can reconcile that; tbe testimony 

just differs. [While] Mr. Tipton did say it was to the best 

of his knowledge, it was possible that he at the moment was 

not aware of the presence of Mr. Owens. In any event, as I 

see it, I just think the problem here is that we are looking 

at a sketch that's not to scale, so it puts everything out 

of proportion. [See Exhibit G-3.] If we could see this as 

it really was, with that to scale, with the actual feet 

there, and the roof bolter, the size of the roof bolter, how 

it went in that entry and how far it would extend out, and 

so forth, I __ think I would get a much different perspective. 

That's the kind of perspective I want to try to elaborate on 

here, and it will be the basis for my decision. The basis 

for it_, of course, is the area of unsupported roof. I think 

it is admitted that's not to scale and surely was smaller 

than this, and therefore, nearer the right rib. 

The testimony certainly is [not] conflicting on 

of points; that is, that a bolt was being -installed. 

was a bolt being installed; there were no jacks set. 

witnesses agree on that. The-jacks were laying down, 

a number 

There 

The 

located away from the face. There is some real difference 

as to where exactly they were located, but they were not set. 

It could have been that those jacks were originally set ~t 

that face possibly across or maybe just on the left side, 

I don't know. They could have been set -- that's one possibility -- and then removed because of the plan to come in 

there and to drill an additional.hole in that unsupported 

roof. But I don't look at the allegation that narrowly. It 

said safety posts were not installed. I look upon that as 

being not set then, with miners working under unsupported 

roof. There was no disagreement there was some unsupported 

roof. And if there are miners working in there, the plan, 

as I understand it, would have required those [jacks] to be 

set and not only to be set but to remain there, until --

that is, as long as somebody was working in that area. 

Now, we come to the second [point], and there is an 

apparent disagreement as to where- that roof bolter was 

located and what the bolter was actually doing. And this 

1270 
. . 

is where the lack of scale really throws us. It is possible 

that both men were saying the same thing; that what looked 

to the inspector like bolting in that series, might have 

been [bolting] the brow, or vice versa. We don't exactly 

know what it was, but the inspector did testify in spite of 

all that, [that] this polter -- and this is the important 

thing -- was working there in nonsupported roof, where the 

jacks were not located; that is, not set where they should 

have been set. That they had been there originally, I don't 

think is too material. If the roof bolter was working there 

and bolting a brow and was still close up to.that unsupported 

roof, it was, as I would construe it, a violation of that 

plan, which requires those jacks to be installed. Furthermore, [they are] to remain there in sequence as I read the 

plan, until the permanent supports are put in. 

I grant you there possibly could be some variation for 

this additional bolting that was contemplated, but it 

certainly wouldn't permit a roof bolter to work in there. 

So, weighing all the testimony and attempting as I can to 

reconcile the two different witr.esses who testified, I 

simply find that there was a bolting taking place without 

the jacks being in place at the time and lea~ing a miner in 

nonsupported roof. This, I think is in violation of the 

plan, and therefore, in violation of 30 CFR 75.200. 

That leads me to the assessment of the penalty and 

various criteria which I must find on that. The first item, 

of course, is the history and the print-out does show [prior] 

citations or notices, starting in 1976 and up through March 

of 1978, six prior violations of 30 CFR 75.200. These could 

be, of course, any kind of a roof violation, not necessarily 

the failure to set the posts. It does show some history, 

however, and I will take that into account. The company, 

based on the testimony, is a small company, producing 

400 tons daily and employing twenty-eight men. There is no 

evidence on the effect of the operator's ability to continue 

in business, based on the penalty to be assessed. So, I 

need not take that into account.· There was no evidence that 

I recall of good faith efforts to achieve rapid compliance. 

I will find -- well, I.will just leave that then as a neutral 

or a criteria on which there's no particular evidence to take 

into account. 

That leaves the seriousness, as well as the negligence. 

But insofar as the seriousness is concerned, this does constitute a roof violation. And I believe it. is practically 

self-evident that a failure to follow that plan, and 

particularly working under nonsupported roof, is a serious 

violation and I find it to be serious. 

1271 
The negligence -- on this counsel for the Government has asked me to find ordinary negligence -- I think 

there is some negligence in the sense that the mine foreman and the section foreman were there and were aware or 

should have been aware of what was going on. There is a 

difficulty, though, and it may be that there was good faith 

involved in what you could describe as [an] unusual or different situation and they were attempting to adjust it; 

namely, a portion of the roof that was, that was scaling, I 

guess, was the term, or falling and had to be bolted or 

blasted out. So in connection with that deviation, you 

might say, from the plan, they were not actually following 

it strictly, but had left an area of roof unsupported. I 

find some negligence at least, if not ordinary negligence. 

So, I believe that completes then, all of the criteria. 

(Tr. 124-130). 

The Government had previously asked for $1,000.00 for 

this alleged violation which I found to be a violation. I 

think this amount, in the circumstances as revealed here in 

the course of this hearing now, is somewhat high. In 

reviewing the amounts assessed for the previous citations 

of roof control, they are considerably lower, and the 

highest being $150.00 payment. I recognize, though, that 

we are dealing now with a history and in that context I 

believe that a somewhat higher assessment is justified. 

So, I would add another $100.00 to that, making the 

assessment for this violation $250.00. 

I hereby AFFIRM the above decision. It is ORDERED that Respondent pay the sum of $250 for the violation in NORT 79-57-P within 

?O days of the date of the issuance of this decision. 

Distribution: 

c_/;14(/~, Franklin P. Michels I,~ Administrative Law Judge 

Leo McGinn, Esq., MSHA Trials Branch, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 

22203 

Robert M. Richardson, Esq. , and Peter Richardson, Esq. , 

'Richardson, Kemper, Hancock & Davis, 602 Law & Commerce Bldg., 

Bluefield, WV 24701 (Certified Mail) 

1272 
FEDERAL MINE SAFETY ANO t'1EAlTH R~ViEW COMMiSSION 

OFFICE OF ADMINISTRATIVE Lf,W JUDGES· 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

AU ti 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

·~ i.) ~979 

Civil Penalty Proceeding 

Docket No. DENV 78-565-P 

A.c. No. 24-00108-02004V 

Big Sky Surface Mine 

DECISION DISMISSING PROCEEDING FOR FAILURE TO PROSECUTE 

Petitioner, on July 23, 1979, filed a motion to vacate the 

citation anci withdraw the petition for assessment of civil penalty, 

stating: "There is insufficient evidence to establish a violation 

of the aforesaid mandatory standard [30 CFR 77.701] as the only witness who can testify as to the alleged violation is unavailable to 

testify at the hearing as scheduled." ]j 

No written response to such motion was filed by Respondent, 

although Respondent indicated at the phone conference that it would 

have no objection. 

This matter was first scheduled.for hearing on April 6, 1979, 

by Judge Malcolm P. Littlefield and thereafter rescheduled and continued twice. Finally, after assignment to the undersigned, it was 

".!_/ The full text of the motion is as follows: 

"Now comes the Secretary of Labor, by his undersigned counsel, 

and moves the Commission, pursuant to 29 CFR 2700.15, Interim Rules 

of the Federal Mine Safety and Health Review Commission, to vacate 

the citation issued and withdraw his petition for assessment of civil 

money penalty, and states the following grounds in support thereof: 

"l. On January 5, 1978, Notice No. 6 ..... JWO was issued to Respondent for an alleged violation of 30 CFR 701 of Part 77. 

"2. On March 15, 1978, the Federal -Mine Safety and Health Administration, Office of Assessments, assessed a penalty in the amount of 

$1,000.00 for the aforesaid alleged violation. 

"3. There is insufficient evidence to establish a violation of 

the aforesaid mandatory standard as the only witness who can testify 

as to the condition of the alleged violation is unavailable to tes- · 

tify at the hearing as scheduled." 

1273 
set for hearing on July 24, 1979. The parties were orally notified 

of this rescheduling on June 28, 1979, and the notice was issued on 

June 29. A subsequent request by Respondent, Peabody Coal Company, 

for a continuance was denied. 

Thereafter, on the morning of Thursday, July 19, 1979, only a 

few days before the· hearing scheduled for Tuesday, July 24, Mr. Jerry 

Atencio, speaking on behalf of the Denver Solicitor's Office, telephoned to advise my law clerk that the citation involved in this proceeding was going to be vacated by MSHA. Upon being informed of this 

proposed action, at my direction, my clerk telephoned Mr. Atencio to 

advise him to contact Respondent to determine if there was an objection to the proposed action; and, if there was no objection, to file 

a motion requesting approval for the vacation and listing grounds for 

the actidn. Since the scheduled hearing date of July 24 was imminent, 

Mr. Atencio was directed that such motion be filed in an expedited manner. The use of a teletype machine or Federal Express was suggested. 

Late in the day on July 19, Mr. Atencio telephoned 'and advised 

my law clerk of the following: (1) MSHA would not make an appearance 

at the scheduled hearing; (2) messages had been left at the operator's 

attorney's office advising him of the proposed action, but no personal 

telephone contact had been made with that party's attorney; (3) the 

Solicitor's Denver Office does not have a teletype machine and he 

interpreted the Commission's Interim Procedural Rules not to require 

that any motions be filed by expedited means such as Federal Express; 

and (4) the grounds for the vacation would be the unavailability of 

MSHA's witness and that the Solicitor had determined that there was 

insufficient evidence to support the citation. 

The following day, Friday, July 20, after i't was determined that 

the operator had not been informed of the proposal to vacate, a telephone conference was arranged. Mr. Thomas Gallagher, counsel for the 

operator and Mr. Atencio were advised that morning oL the conference. 

However, when the conference was held, since Mr. AtencLo was not then 

available, the Solicitor was represented by Mr. Thomas Korson. 

Mr, Korson stated, upon questioning by the Presiding Judge, that 

the citation was to be vacated for no specific reason, but that it was 

not for any reason of scheduling. Since this informatio.n was different 

from that which Mr. Atencio had provided the night before, the Presiding Judge further inquired specifically if the vacation had anything 

to do with the unavailability of a witness. Mr. Korson again affirmed 

that it had nothing to do with a witness or the scheduling. When 

invited to state why the matter was being vacated, Mr. Korson replied 

that no reasons would be given and that it was the prosecutor's privilege to vacate in his own discretion. Mr. Gallagher, speaking for the 

Respondent, advised that he would not oppose the vacating of the citation. With that understanding, the Presiding Judge stated that upon 

receipt of the motion and the Respondent's answer, the proceeding 

would be dismissed. 

1274 
Thereafter, on July 23, 1979, the Petitioner filed its motion to 

vacate and withdraw, quoted above. 

On August 6, 1979, I issued an order for the Petitioner to show 

cause why the pro·ceeding should not be dismissed for failure to 

prosecute. As pointed out in such order, it was obvious that the 

representations made by the Solicitor's representative to the Presiding Judge at the phone conference were completely at odds with the 

statements made in the motion to vacate and to withdraw. At the conference, I was told that the withdrawal was not due to the scheduling, 

while the motion to withdraw explicitly states that the reason was the 

insufficiency of evidence, as the only witness who could testify was 

unavailable' for the hearing as scheduled. 

The situation, as viewed at that time, was summarized in the show 

cause order as follows: 

The Petitioner had ample opportunity to file with the 

court a motion for continuance if it, in fact, had a serious 

problem of witness availability. It confined its contacts 

wholly to oral communication with my law clerk, and, in fact, 

did not raise this matter except orally at almost the very 

last moment. I arranged for a prehearing conference for the 

express purpose of determining whether there might be a problem because of the scheduling. As indicated, I was told 

affirmatively, at least twice, there was no such problem. 

In these circumstances, I believe that the Solicitor or his 

representative not only misrepresented the situation to the 

Presiding Judge, but otherwise engaged in such mishandling 

and lack of interest in prosecuting this case that it 

appears it should be dimissed for a failure to prosecute. 

Petitioner's response, filed August 13, 1979, is quoted in full 

below: 

NOW COMES the Secretary of Labor, by his undersigned 

counsel and responds to the Order to Show Cause entered in 

the above entitled case on August 6, 1979. 

1. The chronology of the July 19, 1979 discussions 

does not fully and clearly set forth the substance of conversations had between Mr. Atencio and Judge Michels' law 

clerk that the Secretary of Labor would be filing a motion 

to vacate the citation and withdraw his petition for assessment of civil money penalty. The basis for the aforesaid 

motion, as stated to the law clerk, was insufficiency of 

evidence due to the unavailability of the Secretary's only 

witness. Mr. Atencio informed Judge Michels' law clerk 

that the unavailability of the witness was of· a permanent 

nature. Judge Michels' law clerk inquired of Mr. Atencio 

1275 
whether the operator had approved of the Secretary's proposed motion. Mr. Atencio informed the law clerk that the 

Secretary had not sought such approval prior to filing, as 

he believed the determination to file such a motion to lie 

with the Secretary, Mr. Atencio informed the law clerk that 

attempts had been made to contact Thomas Gallagher, attorney 

for the respondent but were to.no avail; that Mr. Atencio 

contacted respondent's counsel's office in De.nver, Colorado 

and was informed all the respondent's attorneys were unavailable. Mr. Atencio left a message with the aforesaid off ice 

of the Secretary's filing of his motion and r~uested respondent's counsel to return the call if there were any questions and for respondent to similarly file its objections, 

if any. At this juncture the law clerk stated the Secretary 

must file his motion by July 20, 1979, and should have it 

served either by having it teletyped, delivered by Federal 

Express, or hand delivered by the Washington, D.C. Office 

of the Solicitor. At this time Mr. Atencio informed the law 

clerk that he would discuss this with the Associate Regional 

Solicitor. In a second conversation with Judge Michels' law 

clerk, Mr. Atencio informed him that the aforesaid motion 

would be filed in accordance with 29 C.F.R. § 2700.12, by 

first class mail; that another attempt to contact respondent's Denver counsel had been made to attempt to inform him 

of the Secretary's motion; and that the Office of the Solicitor was unwilling to expend the funds to dispatch an attorney 

to the hearing scheduled on July 24, 1979, in light of the 

fact that the only witness was not available and thus there 

was no evidence to support prosecution of this action. On 

Thursday afternoon Mr. Atencio received a call from an 

attorney (other than Mr. Gallagher or Mr. Linn) in respondent 1 s Denver office acknowledging receipt of Mr. Atencio's 

earlier advice that the motion to vacate had been filed and 

informing him that respondent had no objection. 

2. In the morning of July 20, 1979, Mr. Atencio 

received a call from Judge Michels' law clerk inquiring 

whether Mr. Atencio would be available for a conference 

call with Judge Michels and Mr. Thomas Gallagher, sometime 

in the afternoon of the same date. No specific time could 

be arranged for the conference call at this time due to the 

fact that it was unknown when Mr. Gallagher would be available. Mr. Atencio informed the law clerk at that time that 

he (Mr. Atencio) would be in the office during the afternoon. The conference call was placed when Mr. Atencio was 

on his lunch hour. 

3. On July 20, 1979, Mr. Korson was aware that the 

Judge's secretary had been attempting to arrange a conference call with Mr. Atencio and counsel for the operator. 

1276 
Orte of our secretaries informed him (Mr. Korson) (during 

the temporary absence of Mr. Atencio) that the Judge wished 

to schedule a conference call. Since Mr. Atencio was not 

available Mr. Korson assumed that Mr. Atencio would be 

available at a particular time of day, and he told the secretary to inform the Judge's secretary that the call could 

be scheduled later in the day at a time when Mr. Atencio 

would be available. Unfortunately, Mr. Atencio was not 

available at the time that Mr. Korson had indicated. Under 

the circumstances, he substituted for Mr. Atencio. In doing 

so, he was trying to accommodate the Judge. He was not 

fully informed of the underlying facts, and perhaps should 

not have spoken for the Secretary in this matter, for that 

reason. 

4. The aforesaid response and the Order to Show Cause 

clearly indicate there was a misunderstanding in that the 

Secretary's burden in establishing his case at any hearing would depend on the testimony of one witness who was 

unavailable and would continue to be unavailable. The 

unavailability of this witness was not for any reason of 

scheduling; otherwise the Secretary would have filed a 

motion to postpone the hearing for a date certain, had the 

availability of this witness been related to a scheduling 

problem. 

5. Based on the aforementioned grounds, the Secretary 

·respectfully submits his motion be granted, as there is no 

evidence on the record of any lack of interest or diligence 

in his prosecuting this matter. 

The response has not only failed to clarify matters, it has added 

further confusion. In the prehearing conference, the Presiding Judge 

was told one thing,.!.•!:_•, that the withdrawal was not caused by the 

scheduling; in the motion to withdraw another, i.e., that it was 

·caused by the scheduling; and finally, in response to the show cause 

order, the Presiding Judge was told both things. In his response, the 

Solicitor claims now that the witness is unavailable and will continue 

to be unavailable and, thus, there is ·no evidence to support prosecution of the action. This expressly contradicts his earlier formal 

motion which states that the witness "is unavailable to testify at 

the hearing as scheduled." Yet, the Solicitor in his response 

.requests that such motion be granted. He has not corrected, withdrawn or explained the reason for the statement in his motion; he 

simply reaffirms his request that the Judge grant it. Clearly, the 

motion cannot be granted as it stands, because it states the petition 

is withdrawn for the reason of scheduling, whereas that is expressly 

contradicted by other statements made by the Solicitor. 

This contradiction is not a minor matter. If the petition is 

withdrawn because of the insufficiency of proof due to the perma.nent 

1277 
unavailability of a witness, it is a matter over which the Presiding 

Judge has little, if any, control. If, however, the withdrawal is 

due to the unavailability of a witness at a hearing as scheduled and 

that witness would be otherwise available, then it is a matter over 

which the Judge has some control and responsibility. In his discretion, he may decide to grant the motion based on all the circumstances, or he might attempt to reschedule the hearing. If the Judge 

is misinformed as to the actual reason for the withdrawal, he is 

deprived of the opportunity to exercise his function in ~eciding the 

issue. 

The Solicitor states in his response to the show cause order 

that the unavailability of the witness was not for any reason of 

scheduling and that the witness was unavailable and would continue 

to be unavailable. If this is true, then there is more than a mere 

misunderstanding. The motion to vacate and withdraw could not be 

more explicit, stating that the witness could not appear at the hearing as scheduled. That statement has not been withdr~wn or corrected. 

The Presiding Judge has given the Solicitor every opportunity to 

clarify his position, first, by a phone call conference, and later by 

means of an order to show cause. All efforts have resulted in failure. 

The outcome has been nothing more than the submission of contradictory 

and obfuscatory statements. 

In these circumstances, I can say with all honesty that I do not 

know which of the Solicitor's assertions to believe. There are too 

many areas creating doubt. For instance, if the reason. for withdrawal 

is, in fact, the insufficiency of evidence, why did Mr. Atencio file 

a motion stating that the reason was the unavailability of a witness 

to testify at the hearing as scheduled? Mr. Korson appeared to know 

that scheduling was not the reason for withdrawal, though strangely and 

.. inexplicably, the Solicitor now claims he was not fully informed. If 

Mr. Atencio, in filing his motion, meant that the witness was permanently unavailable, why has not he· corrected the record, or at least 

explained why he stated something different? Was the phrasing in the 

motion, in fact, deliberate with an intent to deceive? Furthermore, 

because no reason or even a hint of a reason was given for the 

asserted "unavailability" or the "permanent unavailability" of the 

witness, there is no basis in the record for determining the accuracy 

of such representations. 

It should be clear that with the record in the state as described 

above, there is no way that I could grant the motion to vacate and 

withdraw for the reason stated therein. In my order to show c·ause, I 

indicated that I believed the Solicitor or his representative not only 

misrepresented the situation to the jresiding Judge, but otherwis~ 

engaged in such mishandling and lack of interest in prosecuting this 

case, that it should be dismissed for a failure to prosecute. Nothing 

in the response has dissuaded me from that view; rather, I am now 

fully confirmed in it. Accordingly, 

1278 
This proceeding is hereby DISMISSED for failure of prosecution. 

c:&l41A~ Franklin P. Michels R ~M Administrative Law Judge 

Distribution: 

Jerry R. Atencio, Donald R. McCoy, Thomas Korson, Esqs., Office 

of the Solicitor, U.S. Department of Labor, 1961 Stout Street, 

Room 1595, Denver, CO 80294 (Certified Mail) 

Thomas. Gallagher, Esq., Peabody Coal Compady, P.O. Box 235, 

St. Louis, MO 63166 (Certified Mail) 

1279 
IFEDE~Al MINE SAFETY AND HEALT~ REVUEW COMMISSION 

OFFICE OF ADMINISTRATiVE LAW JUDGES . 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

"I 'i'.' ':· '. 15'KI ,fl\UC" · , • IP 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BETHLEHEM MINES CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. PITT 77-50-P 

A.C. No. 36-00840-02004 F 

Cambria Slope No. 33 Mine 

DECISION 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

T. W. Ehrke, Esq., Bethlehem Mines Corporation, 

Bethlehem, Pennsylva.::-:.ia, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

On April 16, 1976, Denton R. Bodenschatz, a shuttle car operator for Bethlehem Mines Corporation, was killed in the No. 5 air 

course of the 3 Right 6 South section of the Cambria Slope No. 33 Mine 

in Cambria County, Pennsylvania. The decedent who was operating the 

No. 50 shuttle car immediately prior to the accident, was in the process of hauling coal to the conveyor belt tail when the said shuttle 

car became stuck. Then, for a reason that remains unknown, the shuttle 

car lurched forward causing the decedent, who had partially moved out 

from under the protection of the canopy, to be squeezed between the 

belt tail jack and the shuttle car frame. 

Inimediately following the accident, the Mining Enforcement and 

Safety Administration of the Department of the Interior (hereinafter 

referred to as MESA), 1/ initiated.an investigation. As a result of 

the investigation, MESA issued citations and on August 24, 1977, filed 

a petition for assessment of a civil penalty in accordance with section 109(a) of the Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. § 819(a). !:./ 

};_/ As of March 9, 1978, by operation of law the Mining Enforcement 

and Safety Administration was transferred to the Department of Labor 

where it became the Mine Safety and Health Administration. 

2/ The corresponding section under the Federal Mine Safety and 

Health Act of 1977, P.L. 95-164, 91 Stat. 1290, is section llO(a). 

1280 
The Respondent filed an answer on September 15, 1977, denying 

the violation alleged in the .petition for assessment of civil penalty. A hearing on the merits was held in Ebensburg, Pennsylvania, 

on January 23 and 24, 1979. 

Notice of Violation No. 1 CMB, April 19, 1976 

The notice of violation, which bears the closest·relation to the 

fatality, alleges a violation of 30 CFR 75.1725(a). It states: 

The standard shuttle car, Joy 21SC Serial # ET11903, 

in the 3 Rt. 6 South Section (056) was not maintained in a 

safe operating condition, in that coal was permitted to 

accumulate around the tram lever and control linkage and 

the machine was not taken out of service to completely 

correct the condition. This violation was observed during an investigation of a fatality and was a contributing 

factor in the fatality. 

Section 75.1725(a) of Title 30, Code of Federal Regulations 

states: "Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machtnery or equipment 

in unsafe condition shall be removed from service immediately." 

Government Exhibit 2 contains the following decription: 

DESCRIPTION OF ACCIDENT 

On Friday, April 16, 1976, the crew for 3 right 

6 south section entered the mine at about 7:55 a.m. and 

arrived in the face area approximately 25 minutes later. 

Robert Wolfe, section foreman, made an examination of the 

section. Owen D. Croyle, roof-bolter helper, had been 

assigned to operate the standard shuttle car this shift 

because the regular operator was absent. He first had to 

clean an accumulation of loose coal 12 to 18 inches deep 

which had been left by the previous shift from the operator 1 s cab of the standard shuttle car. Denton R. 

Bodenschatz, shuttle-car pperator, began cleaning loose 

coal which had been left by the previous shift from around 

the belt tail while William Perkins, miner helper, and 

Andrew Orlovsky, miner operator, pulled down loose ribs. 

After Wolfe completed the examination of the section, production activities began as Orlovsky used the continuous 

miner to push spilled runway coal into the pillar split of 

the pillar between Nos. 6 and 7 air courses. One car of 

coal was loaded and dumped. When the second shuttle car 

of coal was hauled to the belt tail, Croyle had difficulty 

positioning the shuttle car to dump because of coal spillage. While maneuvering the shuttle car, it became stuck 

1281 
near the inby corner of the intersection. Bodenschatz, 

who had been cleaning coal spillage at the belt tail with 

Michael Korinchak, roof bolter, attempted to free the 

shuttle car but was unsuccessful. It was necessary to use 

the continuous miner to pull it free. Bodenschatz then 

volunteered to haul a load since Croyle had been having 

trouble. When he arrived at the face, he had difficulty in 

positioning the shuttle car under the tail of the continuous miner because the tram control was sticking. He and 

Perkins cleaned the cab out and found that the helper 

spring on the forward tram pedal had very little tension on 

it. They repositioned the spring in another hole which 

provided more tension. Bodenschatz tried the pedal several 

times and commented that it was working all right. The 

shuttle car was loaded, and he drove it toward the belt 

tail to dump the load. As he approached the.corner of the 

intersection of No. 5 entry, the operator's side of the 

shuttle car was too close to the rib and the top of the 

canopy began to wedge against the roof. Wolfe, who was 

behind the check curtain assisting William Clarke., mechanic, 

with repairs to the Kersey tractor, was then informed of 

the trouble in trying to position the shuttle car to unload. 

Wolfe evaluated the situation and instructed Bodenschatz 

to back out and to swing wider. Bodenschatz tried to start 

the car but could not do so. He told Croyle, who was standing between the shuttle car and the rib, that the shuttle 

car would not st.art. Croyle noticed that the shuttle-car 

light was on and he also heard the control circuit contactors close but without the pump motors starting. An 

instant later, the shuttle car unexpectedly lunged forward 

in the direction opposite to that intended until it struck 

the belt tail. As the shuttle car traveled the short distance, Bodenschatz's head was squeezed between the top 

frame of the shuttle car and the belt tail jack. Croyle 

ran forward and used the panic bar to deenergize the 

shuttle car. First-aid materials were obtained and first· 

aid care was administered. Bodenschatz was transported to 

the intensive care unit at Conemaugh Valley Memorial 

Hospital, Johnstown, Pennsylvania. He died at 8:25 p.m. 

the same day of a severe head injury. 

Petitioner alleges that at the time of the accident, there were 

coal accumulations around the control levers which interfered with 

the normal operation of the machine (Tr. 199, 200) and Respondent 

had knowledge of these accumu~ations. Petitioner introduced Exhibit 

Nos. 16 and 17 which depicted the coal and coal dust accumulations 

mixed in with the blood of the· victim on the floor of the cab 

(Tr .. 22, 28). Although these pictures were taken on April 19, 1976, 

3 days after the fatal accident, they allegedly are an .accurate 

representation of the floor of the cab immediately following the 

1282 
accident. Petitioner asserts that these exhibits clearly illustrate 

that the blood of the victim fell on the coal, which would imply 

that these accumulations were already present at the time of the 

accident (Petitioner's Brief, p. 13, Tr. 22, 23, 157, 158). 

I find that these pictures (Exh. Nos. 16 and 17) cannot be 

accepted as a true and accurate portrayal of the cab of the shuttle 

car as it looked immediately following the accident. In the first 

place, the two exhibits show the brake pedal in different positions. 

Someone moved it before the second picture was taken. Also, Inspector Biesinger testified that the initial invesiigation revealed that 

the helper spring was found disconnected following the accident, 

whereas Exhibit Nos. 16 and 17 show the helper spring to be connected 

(Tr. 127). Mr. Ford, director of safety and environmental health for 

Bethlehem, who was one of the first persons to arrive at the scene of 

the accident, stated in reference to observing the helper spring in 

Exhibit Nos. 16 and 17, "Well, it looks like it's attached, but that's 

not what I saw" (Tr. 391). The preceding evidence clearly establishes 

that the shuttle car had been tampered with s'ubsequent to the accident 

and prior to taking the photographs. Petitioner made no attempt to 

explain this discrepancy in its evidence. 

It is also noted that Petitioner had some difficulty with determining the exact date when the pictures were taken. The evidence 

presented by both parties establishes that the pictures were taken 

on April 19, 1976, 3 days after the accident, yet, towards the end 

of the hearing, after one of Respondent's witnesses had testified 

that the pictures were not taken on April 16, Mr. O'Donnell, after 

consulting with one of the inspectors who had previously testified, 

proceeded to ask "You heard them testify they did take the pictures 

on the 16th?" (Tr. 403). 

The evidence also indicates that the MESA inspectors may not have 

made their first examination of the cab until April 20, 1976 (Tr. 55). ~/ 

3/ At page 55 of the transcript, Inspector Biesinger states: "Let 

~e make a correction there. I believe it was on April 20 that we 

removed the shuttle car and made the first examination of the cab and 

control levers." At page 134 of the transcript, he states: "[W)e 

found it stuck in the forward position upon examining it on the day of 

the accident." At page 175 of the transcript, Inspector Koba states: 

"When he did find the shuttle car immediately after the accident, the 

tram lever was jammed in the forward position which would make it tram 

towards the tailpiece. 11 The only definite conclusion I can make from 

this testimony is that at some time between April 16, the day of the 

accident, and April 20, the inspectors found the tram lever jammed in 

the forward position, although according to Inspector Biesinger, that 

tram lever was merely in a full throttle position because he was of 

the opinion that t~e forward and reverse tram switch was in another 

part of the cab. 

1283 
If so, that was even after the pictures (Govt. Exh. Nos. 16 and 17) 

were taken and I have already rejected them as accurate depictions 

of the accident scene. Respondent's witness, Mr. Ford, however, had 

observed the cab of the shuttle car on April 16, 1976, shortly after 

the fatal accident. Mr. Ford and two other management personnel were 

the first persons to arrive at the scene of the accident during the 

initial investigation. Mr. Ford testified that he observed a large 

pool of blood, approximately 15 to 17 inches in diameter, on the deck 

of the shuttle car (Tr. 378). He observed that the deck did not contain one handful of dirt (Tr. 378). In response to Government Exhibit 

Nos. 16 and 17, Mr. Ford stated, "Without a dou.bt that is not the condition I observed. This definitely shows coal all around the place. 

Whenever I looked at it, why, hey, it was perfectly clean'; (Tr. 381). 

Mr. Ford explained that immediately after he had observed the 

shuttle car, all investigative personnel were ordered out of the acci 

dent area so that additional roof support could be installed (Tr. 400) 

He estimated that a MESA inspector could not have examined the cab for 

at least 1-1/2 hours while the roof support was being installed (Tr. 

401). He speculated that coal may have been spilled into the cab 

during the installation of roof supports. 

Petitioner does not refute the fact that Mr. Ford examined the 

shuttle car at least 1-1/2 hours before the MESA investigation team. 

I use the phrase "at least" because of the sworn testimony that the 

inspectors first examined the cab 4 days after the accident on 

April 20. Petitioner·' s only explanation as to why Mr. Ford observed 

a clean cab was that the witness was upset and therefore he imagined 

the cab was clean (Petitioner's Brief, p. 13). 

I accept Mr. Ford's testimony and find that the shuttle car was, 

in fact, clean immediately after the accident. It should also be 

noted that the cab of the shuttle car was cleaned immediately before 

it was loaded at the face and during the same run in which the fatal 

accident occurred (Govt. Exh. No. 2, p.· 5, Tr. 52). If the tram pedal 

was stuck at the time of the accident, it was not because of accumulations of coal and coal dust in the cab .of the shuttle car. 

The Petitioner alleges that the operator should have known that 

the helper spring was malfunctioning. (See Continuation Sheet No. 3 

of Govt. Exh. No. 7.) The helper spring is not the principal means of 

returning the tram pedal to the neutral position. The pedal is otherwise spring-loaded to return to the neutral position and the helper 

spring is attached so as to assist the other spring in returning the 

tram to neutral. The operator's foot works against both the main 

spring and the helper spring when he trams the shuttle car. The Petitioner. argues that Bethlehem personnel had knowledge of the defective 

helper spring because "the time of the accident was not the first time 

this spring had detached so Bethlehem personnel .had been warned before 

the accident and knew that the helper spring was stretched." (See 

Pet;tioner's Brief, p. 10.). ~-

1284 
The evidence does not establish that the operator had any knowledge concerning the defective helper spring. On the contrary, the 

evidence establishes that only the decedent, Denton R. Bodenschatz, 

and the miner helper, William Perkins, were aware of the difficulty 

with the helper spring (Govt. Exh. No. 2, p. 5, Tr. 29, 30, 86, 87) •. 4/ 

When Inspector Biesinger was asked whether Mr. Perkins had informed 

either the mechanic or the section foreman that the spring had been 

repositioned, he responded, "I don't recall" (Tr. 134). Mr. Perkins 

was not called as a witness. Furthermore, Robert Wolfe, who was the 

section foreman at the time of the accident, testified that at no time 

during his shift, up to the time of the accident, was he advised of 

any problems with the shuttle car (Tr. 352). · 

As to the tram pedal, Petitioner asserts that Respondent knew or 

should have known that it was sticking. At the time the shuttle car 

was examined, whether on the 16th or 20th, the tram lever was found 

in the forward position, the opposite direction the decedent intended 

to travel (Govt. Exh. No. 2, p. 6). It was thus concluded by MESA 

investigators that the tram lever was stuck in this position at the 

time of the accident. 

Petitioner had two inspectors testify about the alleged sticking 

tram pedal. Their testimony concerning the location of the tram pedal 

on the machine and the operation of the machine was inconsistent. 

Inspector Biesinger repeatedly testified that the left foot pedal 

operates the brake and the right foot pedal operates the tram pedal 

(Tr. 27, 125, 159). He also testified that there was a switch on the 

control panel that had to be turned to the forward or reverse position 

before one could go backwards or forwards in the shuttle car (Tr. 27, 

34, 69, 150). Conversely, Inspector Koba indicated that the tram 

lever is always on the left side and the brake lever is on the right 

(Tr. 169, 170, 191-193). He also testified that the directional control switch is connected to the tram pedal and the switch is automatically activated upon depressing the tram pedal (Tr. 168-172, 192, 

194). Inspector Koba destroys his own credibility, however, when he 

states in reference to the brake and tram pedals, "Whether it was the 

right or left foot, I don't--! could be wrong on that. But the tramming· lever was the one that was connected to the control switch" 

(Tr. 194). 

The testimony of.the two inspectors that 'they found the tram 

control was stuck in the forward position is rendered somewhat less 

than convincing by the fact that neither was sure which pedal was 

the tram control. But assuming that the tram lever was, in fact, 

stuck at the time of the accident investigation, the evidence does 

not establish conclusively that it was stuck at the time of the 

accident. 

4/ Andrew Orlovsky may have also been aware of it (Tr. 36), but he 

was not called as a witness~ 

1285 
There is no way of actually knowing whether the tram lever was 

stuck in the forward position at the time of the accident (Tr. 134). 

It must be remembered that the decedent had difficulty in starting 

the shuttle car, and although it is obvious that his head must have 

been out from und~r the canopy in order for him to have been injured 

as he was, there is no evidence as to the position of the rest of his 

body at the time of the accident. This is understandable because the 

only light available was from a miner's cap lamp and unless one of the 

witnesses was shining his lamp directly at the .decedent, he would have 

no way of knowing his position. But there is the possibility that the 

decedent's foot was on the forward tram lever and that the lever did 

not become stuck in that position until the shuttle car crashed into 

the tailpiece. I am accepting as a fact, despite the discrepancies in 

the evidence, that after the accident the tram lever was found stuck 

in the forward position. While I think it is unlikely that 

Mr. Bodenschatz kept his foot on the tram lever until the collision 

with the tailpiece, I cannot find as a fact that the accident did not 

happen that way. I think it is more likely that the tram pedal was 

stuck in the forward position immediately prior to the accident and 

that the decedent somehow managed to start the shuttle car while the 

tram pedal was stuck in that position. But again, the evidence is not 

sufficiently convincing for me to find as a fact that that was the way 

the accident happened. Assuming it did happen that way, however, in 

order to prevail, the Government must show that Respondent knew or 

should have known of the malfunctioning equipment. 

Hearsay evidence does indicate that the tram pedal had been stuck 

on several prior occasions (Tr. 60, 61). Inspector Biesinger testified-that management, upon being notified of the problem with the tram 

lever, did not exercise reasonable care in alleviating the problem 

(Tr. 112-114). Inspector Koba testified that the condition (the sticking tram lever) existed for quite a length of time, and when it was 

reported, the foreman did not act expeditiously (Tr. 201). Inspector 

Bernazzoli was of the opinion that the machine should have been taken 

out of service the first time the tram lever had been reported sticking (Tr. 225) • 

Nowhere does Petitioner establish one concrete example where management, upon being informed of the tram lever problem, did not take 

corrective action. In fact, the evidence points to the opposite conclusion. Joe Stauski, se~tion foreman of the shift preceding the 

accident, testified that he observed the shuttle car being greased and 

cleaned quite a few times during his shift (Tr. 305). Lynn Baum, section foreman on a different shift testified that upon being informed 

of a problem with the tram pedal, he had the mechanic and the shuttle 

car operator clean and grease around the pedals (Tr. 372). Robert 

Wolfe, the section foreman of the shift on which the fatal accident 

occurred, testified that he was not aware of any problems with the 

operation of the shuttle car during the shift (Tr. 343, 352, 353). 

1286 
The testimony of the MESA investigators indicates that the operator had inadequately repaired the tram lever. Yet, there is no evidence presented by Petitioner revealing what action shoutd have been 

taken by the operator, other than cleaning and greasing the pedals, 

to adequately repair the sticking pedal (Tr. 231). In fact, in the 

abatement notice, MESA condoned the greasing of the tram control 

levers as the appropriate method of repair. (See Govt. Exh. No. 8, 

Continuation Sheet No. 3.) I find no violationof 30 CFR 1725(a). 

Section 104(b) Notice of Violation No. 3 CHB, April 19, 1976 

The 104(b) notice of violation which alleges a violation of 

30 CFR 75.400 states: 

Loose coal and coal dust was permitted to accumulate 

from 3 to 8 inches thick for a distance of approximately 

30 feet from tailpiece inby, on the shuttle car travelway where the accident occurred in the No. 5 entry of 

the 3 Rt. off the 6 South Section (056). This was a 

contributing factor to the fatality. 

Section 75.400 of the Code of Federal Regulations states: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials shall be cleaned up and not be permitted to 

accumulate in active workings, or on· electric equipment 

therein. 

In accordance with the holding of Old Ben Coal Company, 8 IBMA 

98 (1977), it is necessary for the Petitioner not only to prove that 

an accumulation existed, but also to submit evidence as to the 

inspector's determination, prior to issuing the citation, as to how 

long the accumulation had been present and what cleanup actions were 

taken, if any, upon discovery of the ac~umulation by the operator. 

The evidence does establish that accumulations existed as 

described in 104(b) Notice of Violation No. 3 CMB, Government Exhibit 

No. 9 (hereinafter referred to as accumulation No. 1) (Tr. 76, 152, 

234-235); Modification Sheet No. 2 CMB, Government Exhibit No. 10 

(hereinafter referred to as accumulation No. 2) (Tr. 236-237); and 

Continuation Sheet No. 2 attached to Notice of Violation No. 3 CMB. 

(This sheet describes two separate accumulations. They shall hereinafter be described as accumulation No. 3 and accumulation No. 4) 

(Tr. 241, 242). Yet, only for accumulation Nos. 1, 3 and 4 does the 

evidence establish that the inspector, prior to issuing his citation, 

made a determination as to how long the accumulations had been present (Tr, 243, 245). Furthermore, the evidence reveals that only for 

accumulation No. 1 was there a determination by the inspector, prior 

to issuing his notice, as to what actions the operator took upon discovery of the accumulation. The evidence indicates that the decedent 

1287 
had begun cleaning loose coal from around the belt tail (Tr. 75, Govt. 

Exh. No. 2, p. 5). In light of the preceding, I find that Petitioner 

has established a prima facie case for a violation of section 75.400 

only for accumulation No. 1. 

It should be noted that Mr. Carpinello, Bethlehem's general mine 

foreman, did not refute the fact that accumulation No. 1 had not been 

cleaned up (Tr. 281). He indicated that he felt the determination of 

an accumulation was a judgment call (Tr. 282). He and one of the section foremen were of the opinion, however, that the accumulation could 

not have been present for six shifts because the area had been 

shoveled the day before and it was cleaned every shift (Tr. 316, 317, 

355). He also testified that the belt tail area had taken only 20 to 

30 minutes to clean up (Tr. 325). There was a cleanup program in 

effect at the time of the accident (Respondent's Exh. C, Tr. 270). 

Petitioner also alleged that the loose coal on the mine floor in 

the area of the belt tail (accumulation No. 1) was a contributing factor to the accident in that it made it difficult to maneuver the 

shuttle car properly. There is no convincing evidence which substantiates this allegation. In fact, the description of the accident 

in th~ accident report does not make any reference to the decedent 

having any difficulty maneuvering the shuttle car as a result of coal 

accumulations (Govt. Exh. No. 2, p. 5). I do not find a connection 

between the accumulation and the accident, but I do find a violation. 

I find that the operator is large in size, abated the violation 

promptly and in good faith, the penalty assessed herein will not 

affect its ability to continue in business, and the operator has a 

significant history of violations. 

I find there is negligence in that the operator, who had knowledge of the accumulation, failed to clean it up (Tr. 281). 

I find this to be a serious violation in that the potential for 

an explosion was increased because of the excessive amounts of methane 

liberated in the mine (Tr. 291). The relevant section of the mine was 

dry (Tr. 247) and the cables in the area could have provided an ignition source (Tr. 80, 81, 153). A penalty of $1,000 will be'assessed. 

Section 104(b) Notice of Violation No. 1 CMB, May 26, 1976 

The 104(b) notice of violation which alleges a violation of 

30 CFR 75.304 states: 

Evidence observed and revealed during an investigation of a fatal accident that occurred in the 3 Right 

6 South section (056) on 4/16/76 was substantial to support that a proper on shift examination of the working 

section was not made for at least 6 shifts preceding the 

1288 
accident in that the following conditions were cited and 

observed; the roof wa·s inadequately supported and accumulations of loose coal and coal dust were present in the 

active shuttle-car roadway, also, the tail of the belt 

(shuttle car dumping point) was installed in a hazardous 

location and in a hazardous manner. 

Section 75.304 of the Code of Federal Regulations states: 

At least once during each coal-producing shift, or 

more often if necessary for safety, each ~orking section 

shall· be examined for hazardous conditions by certified 

persons designated by the operator to do so. Any such 

conditions shall be corrected innnediately. If such condition creates an innninent danger, the operator shall 

withdraw all persons from the area affected by such conditions to a safe area, except 'those persons referred to 

in section 104(d) of the Act, until the danger is abated. 

Such examination shall include tests for methane with a 

means ·approved by the Secretary for detecting methane 

~nd for oxygen deficiency with a permissible flame 

safety lamp or other means approved by the Secretary. 

This 104(b) notice of violation was issued on May 26, 1976, and 

was precipitated by a fatal accident which occurred on April 16, 1976. 

The accident investigation was completed on April 21, 1976. (See 

Government Exhibit No. 2.) This means that the notice of violation 

was issued 40 days after the occurrence of the fatal accident and 

35 days after the completion of the accident investigation. I am of 

the opinion that the issuance of a citation 35 days after the completion of the accident investigation, without good cause, is an unreasonable delay in informing Respondent of the allegations lodged 

against it. On its face, the notice of violation indicates that it 

was issued because of the presence of improperly supported roof, accumulations of loose coal and coal dust, and because the tail belt was 

installed in a haphazard .location and manner. From reading the 

notice, it would appear that the existence of the three conditions 

proved that a proper onshift examination had not been made. But the 

testimony of Inspector Bernazzoli makes it clear that he issued the 

notice because the conditions had not been properly recorded in the 

onshift examination book (Tr. 55, line 8, Tr. 52, lines 5-11). It 

should also be noted that with respect to two of the items that the 

inspector thought should have been noted in the book, no citations 

were issued (no citation was issued with respect to the unsupported 

roof or the so-called haphazardly-installed tailpiece). But the essential flaw with respect to this notice is that the section cited does 

not require the keeping of any records. ~/ The notice is VACATED. 

5/ See my decision in MESA v. Hobbs Brothers Coal Company, Inc., 

NORT 74-815-P, p. 6 (March 31, 1975); also see 3Q CFR 75.1802. 

1289 
Section 104(b) Notice of Violation No. 2 CMB, May 26, 1976 

The 104(b) notice of violation which alleges a violation of· 

30 CFR 75.303(a) states: 

Evidence observed and revealed during an investigation 

of a fatal accident that occurred in the 3 Right 6 South 

section (056) on 04/16/76 was substantial to support that 

a proper pre-shift examination of the working section was 

not made for at least 6 shifts preceding the accident in 

that the following conditions were observed and cited; 

the roof was inadequately suported and accumulations of 

loose coal and coal dust were present in the active shuttle 

car roadway, also, the tail of the belt (shuttle car dumping point) was installed in a hazardous location and in a 

hazardous manner. The pre-shift examiner recorded in the 

book that the section was safe for the men to enter. 

Section 75.303(a) of Title 30, Code of Federal Regulations, 

states, in part: 

Within 3 hours inunediately preceding the beginning of 

any shift, and before any miner in such shift enters the 

active workings of a coal mine, certified persons designated by the operator of the mine shall examine such workings and any other underground area of the mine designated 

by the Secretary or his authorized representative. * * * 

Each such mine examiner shall also record the results of 

his examination with ink or indelible pencil in a book 

approved by the Secretary kept for such purpose in an 

area on the surface of the mine chosen by the operator to 

minimize the danger of destruction by fire or other hazard, and the record shall be open for inspection by 

interested persons. 

This 104(b) notice of violation, like the prior notice, was 

issued 35 days after the completion of the accident investigation. 

Again, I am of the opinion that this time period amounts to an 

unreasonable delay in informing Respondent of the allegations lodged 

against it. Unlike the section involved in the previous violation, 

however, 30 CFR 75.303(a)·does require that the results of the examination be recorded in an approved book. In order to find a violation, I would have to decide that the three items listed in the notice 

were hazardous conditions. Inasmuch as there was no citation issued 

in connection with the installation of the tail belt, I do not see how 

I could agree that it was a hazardous situation that should have been 

included in the preshift examiner's report. As to the unsupported 

roof, while it apparently existed after the accident, I think it safe 

to assume that if the inspectors had thought that it had existed for 

any significant time, they would have issued a citation in connection 

·1290 
with that condition. I therefore cannot agree that the preshift examiner ignored the unsupportedroof for six shifts. 

Respondent was cited for accumulations of loose coal and coal 

dust and I have previously found that accumulations of co~l and coal 

dust in this mine are serious. Since, however, it is not the practice 

in Respondent's .mine to include coal and coal dust accumulations on a 

preshift report, and inasmuch as there is a program wherein one shift 

is supposed to clean up whatever coal and coal dust was left by the 

prior shift, I cannot find that there was a significant degree of 

negligence on the part of the preshift examine~ in failing to include 

the condition on the preshift examation report. A penalty of $100 

will be assessed. 

ORDER 

It is therefore ORDERED that Respondent pay to MSHA, within 

30 days of the entry of this decision, a civil penalty in the amount 

of $1, 100. 

Issued: 

Distribution: 

Charles C. Moore, Jr. 

Administrative Law Judge 

John H. O'Donnell, Esq., MSHA, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Thomas W. Ehrke, Esq., Industrial Relations Attorney-Coal, 

Bethlehem Mines Corpor~tion, Room 1871, Martin Tower, 

Bethlehem PA 18016 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Departme·nt 

of Labor 

Standard Distribution 

1291 
FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

AUG 3 

SECRETARY 0F LABOR, Civil Penalty Proceeding 

MINE SAFETY A~D HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No, VINC 78-102-P 

No, 21 Mine 

v. 

Old Ben Coal Company 

HUBERT WILLIAMS, 

(Section Foreman) 

Appearances: 

Before: 

Respondent 

DECISION 

J, Phillip Smith, Esq., Office of the Solicitor, u.s. 

Department of Labor, for Petitioner; 

Charles Widman, Esq., Washington, D,C,, for 

Respondent, 

Judge Charles C, Moore Jr, 

The above civil penalty proceeding was brought against a section 

foreman of the No, 21 Coal Mine in Sesser, Franklin County, Illinois, 

operated by Old Ben Coal Company, pursuant to section 109(c) 1/ of 

the Federal Coal Mine Health and Safety Act of 1969, The Government 

seeks to impose a civil penalty against Respondent who is charged with 

knowingly authorizing, ordering, or carrying out a violation of the 

roof control plan 30 CFR 75.200, The alleged violation occurred on 

November 21, 1977, and a hearing was held on March 6 and 7, 1979, in 

Evansville, Indiana. 

The relevant sections of the r-oof control plan which MESA alleges 

that Respondent failed to comply with state: (Gov. Exh, 6, Part I 

P• 5 #4, Part II P• 9 1t3, Tr, Vol. I 126, 129-131), 

In the event that less than eight (8) inches of top 

coal is encountered or adverse roof conditions are evident, and the mining machine operator is beyond artificial 

support, mining in such working place will be stopped, 

the continuous mining machine withdrawn, and the roof 

adequately supported before further mining is conducted 

!f The equivalent provision of the 1977 Act is section llO(c)~ 

1292 
in that area. When the roof rock is inadvertently 

exposed, but the roof is otherwise sound, the miner head 

may be dropped down and a brow of top coal no greater 

than six (6) feet deep may be established prior to 

withdrawal. * * * [2/] 

In order to prove a violation of section 109(c) of the 1969 Act, 

the Petitioner must establish that (a) the corporate operator violated 30 CFR 75.200 (b) Respondent was the agent of the corporate 

operator (c) Respondent knowingly authoriz~d, ordered, or carried 

out these violation. Everett L. Pritt, 8 IBMA 216 (1977). 

The term "agent" as defined under section·3(e) of the 1969 Act, 

30 U.S.C § 802 (1970), is ~any person charged with responsibility for 

the operation of all or part of a coal mine or the supervision of the 

miners in a coal mine." The evidence clearly establishes that the 

respondent was the section foreman, who was in_charge of the relevant 

area of the .mine where the roof fall occurred (Tr. VoL I 95-96, 

Vol. II 140-141). I therefore find that the Respondent, as section 

foreman, is an agent of the corporate operator. MESA v. Daniel 

Hensler, Docket No. VINC 75-374-P (March 31, 1976-)-.~ 

The contentions of MSHA are, in my opinion, well summarized in 

the following portion of GX-11. 

On the day of the accident, November 21, 1977, 

Mr. Terry Gossett, continuous miner operator was operating 

the continuous mining machine in the 45 degree crosscut 

between rooms 27 and 28 and during this time roof and-rib 

rock became exposed. Mr. Terry Gossett, continuous miner 

operator stated that he showed the foreman Mr. Hubert 

Williams, the exposed rock and ask him if he wanted to back 

out Jand bolt and Williams said no, to drive it all the way 

up. Mr. Gossett stated that he drove the place into where 

the unsupported rock was over his head and then Williams, 

the foreman got on the machine and drove the place the rest 

of the way. To summarize the event, the sec ti.on foreman 

knew ab~ut the exposed rock top and ordered the miner operator, Mr. Terry Gossett, to drive the place up and when the 

miner operator, did not do so, Hubert Williams, foreman ran 

the machine himself and mined 25 feet past exposed rock top. 

2/ Respondent had been furnished the wrong roof-control plan prior 

to the prehearing conference. He was furnished the proper plan prior 

to the hearing on the merits and while this may have inconvenienced 

Respondent, it was not a fatal error. Also, I am of the opinion that 

it does not matter whether the miners were engaged in advancing or 

retr~ating since the quoted part applies to both types of mining. 

1293 
Hubert Williams, foreman then backed the machine out and 

ordered Terry Gossett to take a couple of buggies off the 

corner before making the move to start another 45 degree 

crosscut. As Terry Gossett was taking the second buggy off 

the corner, Hubert Williams, foreman was standing ne~rby 

observing when the roof fell in. 

Based on the information outlined above, Hubert 

Williams, section foreman knowingly authorized, ordered 

and carried out a violation of a mandatory safety standard. 

Under Section 109(c) of the Coal Mine Health and 

Safety Act of 1969 and Section llO(c) of the Federal Mine 

Safety and Health Act of 1977, a section foreman is considered to be an agent of the operator, and is subject to 

be assessed a civil. I recommend that Hubert Williams, 

Section Foreman, Old Ben Coal Company, Mine No. 21, be 

assessed a civil penalty of $2,000.00. 

The corporate operator has been assessed a civil 

penalty of $10,000.00 for this same violation. 

Respondent rigorously argues that the testimony as presented by 

MESA failed to establish that roof rock was exposed at the site of the 

alleged violation and Respondent had knowledge of such exposed rock. 

Instead, the Respondent contends that MESA has merely established that 

there was rock in the arch or rib rather than the roof; thus, this 

occurrence would not ·be violation of the above-stated roof control 

plan. 

I am of the .opinion that the evidence clearly establishes, not 

only the presence of exposed roof rock at the time of the violation, 

but also that Respondent had knowledge that such roof rock existed. 

MESA introduced five witnesses who testified to the presence of 

the roof rock. Two of the witnesses had observed the roof immediately 

before the accident. Terry Gossett, the continuous miner operator, 

testified that noi: only did he observe exposed roof rock; which 

extended for approximately 15 feet (Tr. Vol. I 256), but he also had 

reported the presence of the roof rock to the Respondent (Tr. Vol. 1 

206, 207, 212). Mr. Gossett testified that upon being informed of 

the exposed roof rock, the Respondent instructed him to drive his 

machine up the short 45 without bolting the area (Tr. Vol. I, 207). 

After driving the machine about 20 feet, Mr. Gossett refused to drive 

the machine under the exposed rock (Tr. Vol. I, 223) and at this point 

Mr. Williams got on the machine and drove it the rest of the way up 

the short 45. 

Gary Ritchason, a bottom laborer, had just left for dinner at the 

time of the roof fall. He testified that the roof rock was exposed 

prior to the accident and that Respondent had observed the roof rock. 

1294 
Tr. Vol. 1, 249-251). In fact, he had heard Mr. Gossett report to 

the Respondent that there·was exposed roof rock (Tr. Vol 1, 251). 

Mr. Ritchason specifically indentified the rock he was referring 

to as being located in the rib and on the roof (Tr. Vol. I, 250). 

Maurice Messersmith, a roof control specialist for MESA, examined 

rooms 27 and 28 of. the No. 21 Mine 1-1/2 hours after the roof fall 

(Tr~ Vol. II, 29). He testified that the roof and rib rock were 

readily visible at this time (Tr. Vol. II, 28-30). 

A second MESA roof control specialist, William Mitchell, examined 

the relevant section on the day following the accident and he indicated that the exposed rock extended down into the rib and also across 

the roof (Tr. Vol. I, Tr. 71, 72, 78). He was of the opinion that the 

exposed rock should have been apparent to anyone working in the 

section (Tr. Vol. I, 146). 

The president of the local union, Terry Jones, also took part in 

the initial investigation, approximately 1-1/2 hours·after the roof 

fall. He stated that the exposed rock was located in the roof and 

the rib (Tr. Vol. II, 85); the exposed rock should have been 

apparent to the section foreman (Tr. Vol. II, 88). As Respondent 

points out in his brief, the two MESA inspectors and the president of 

the local union could only give "after the fact " testimony in that 

their examination of the roof occurred after the fall. It was thus 

possible that the roof rock which they saw became exposed because of 

the fall (Tr. Vol. II, 56). 

The Respondent denied that he observed any rock on the roof or 

that his conversation with Mr. Gossett had brought to his attention 

the exposed roof rock (Tr. Vol. II, 144, 147, 149, 150, 158, 169). 

Respondent, however, did recall taking.over for Mr. Gossett and driving up the short 45, but he could not remember his reason for taking 

such action (Tr. Vol. II, 70) or the contents of his conversation 

with Mr. Gossett. 

Upon evaluating the testimony of the Governments' two eyewitness 

in conjunction with the testimony of the three "after the fact" witnesses, I find that the evidence clearly and convincingly establishes 

that roof rock, as well as rib rock, was exposed in the relevant section of the No. 21 Mine prior to the roof fall. Furthermore, I find 

that Respondent was aware of the exposed roof rock at the time he 

permitted mining activities to proceed for a distance greater than 

6 feet in violation of the roof-control plan. It follows that 

Respondent's principal, the corporate operator, was also guilty of 

violating the roof control plan. 

As to the gravity of the violation, Respondent argues that the 

rock fall did not occur during the time of the alleged violation 

(Rx 1, Resp. Brief p. 14) and the rock fall occurred in a different 

area than the alleged violation (RX 1 and 2, Tr. 14). Respondent 

1295 
bases these arguments on a motion to approve settlement and a decision approving settlement in a civil penalty proceeding in which Old 

Ben, the corporate operator, was charged with the same roof control 

plan violation of November 21, 1977. He argues that the decision contains official findings of the Commission. 

A decision approving i;ettlernent, under our proceedings, i,s made 

without the benefit of a formal hearing. There is no opportunity to 

present expert and non-expert witnesses; or to cross examine anyone 

on the accuracy and the validity of the documents introduced for 

purposes of having the settlement agreement apP,roved. In this case, 

where a hearing has been held on the question of violation, due process dictates, that the findings of fact shall be based on the record 

as established at the hearing rather than deferring to the findings 

of a prior settlement decision. I therefore hold that the factual 

findings in a decision to approve settlement have no binding or collateral estoppel effects on a subsequent hearing involving the same 

violation with a different defendant. 

Respondent is nevertheless technically correct that the rock 

fall did not occur during the exact time of the alleged violation. 

The area of the exposed roof rock, the short 45, had already been 

driven up for approximately 50 feet and at the time of the fall the 

corner between the short 45 degree crosscut and Room 28 was being 

cut. Mr. Gossett estimated that approximately 10 minutes had elapsed 

between driving the short 45 all the way up 50 feet and when the said 

c9rner was cut (Tr. Vol I 208). 

Respondent's argument that the roof fall occurred in a different 

area than the alleged violation is clearly refuted by the testimony 

and exhibits. The exposed roof rock was located near the left-hand 

side of the rib in the short 45 (Vol. I, 74, Vol II 84). Government 

Exhibits 4 and 5 depict the area of the roof fall as including part 

of the area near the lefthand side of the rib of the short 45 where 

the exposed roof rock was located. I thus find that part of the roof 

fall occurred where there was exposed roof rock and that mining had 

proceeded beyond 6 feet in. this area. 

The testimony from five Government witnesses who had examined 

the roof fall area indicates that had the roof been properly bolted, 

the roof fall would not have occurred (Tr. Vol. I, 213,258, Vol. II, 

33, 102). Inspector Mitchell stated: (Tr. Vol. I, 73-74). 

A. (Mr. Mitchell) All right sir. When that rock 

was--when that rock was exposed, right there on the corner, 

the left-hand corner leading into the short 45 degree. 

crosscut, that place shouldn't have been c;lriven over 

six feet. The continuous miner pulled out, the roof bolting machine brought in, and that area permanently supported 

with roof bolts before mining was continued on up to the 

face of this short 45. 

1296 
He further stated: (Tr. Vol. I, 73). 

* **When you expose rock in a place like this, and you 

continue to drive, there is a time exposure element there 

that will contribute to a roof fall occurring. If--if 

this place would have been bolted, the roof fall wouldn't 

have occurred, in my opinion, because of the thickness of 

the roof fall~ * * * 

Inspector Mitchell went on to explain that the minimum length 

roof bolt used in the No. 21 mine was 60 inches. Whereas the fallen 

material was 3 feet thick, the bolts would have' been anchored 2 feet 

above where the roof broke, thus preventing the fall (Tr. Vol. I, 75). 

I find that the mining activities which violated the roof control 

plan and the subsequent mining of the corner occurred close enough in 

time (as well as location) to reasonably conclude that the roof fall 

was caused by the violation of the roof control plan. 

In assessing a civil penalty under 109(c) I shall consider the 

seriousness of the violation, the degree of negligence involved, and 

the financial condition of the Respondent. The other criteria do not 

seem appropriate because Respondent was not involved in the abatement 

and has no prior history of violation. 

I find that there was negligence on the part of the Respondent 

and that the violation was serious. I find that Respondent earns a 

salary of $26,000 a year, and that Old Ben Coal Company which earns 

somewhat more than that settled its case involving this same order 

for $6,000. 

Based on the foregoing, I assess a penalty of $1,000.00 against 

the Respondent. All pending motions are hereby DENIED. 

ORDER 

It is hereby ORDERED that Respondent, within 30 days hereof, 

pay to the Mine Safety and Health Administration the civil penalty 

assessed above. 

1297 

Charles C. Moore, Jr. 

Administrative Law Judge 
Distribution: 

J. Philip Smith, Esq., HSHA, Office of the Solicitor, u. s. 

Department of Labor, 4015 Wilson B.lvd., Arlington, VA 22203 

Charles L. Widman, Esq.) Suite 902, Wire Building, 1000 Vermont 

Avenue, NW., Washington, DC 20005 (Certified Mail) 

Administrator for Coal Mine Safety & Health, u.s. Department of 

Labor 

Standard Distribution 

<> U. S. GOVERNMENT PRINTING OFFICE: 1979 281-729/3307 

12'98·