SEPTEMBER 1979 

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

Secretary of Labor, MSHA v. Knox County Stone Co., Inc., DENV 79-359-PM; 

(Judge Kennedy, July 23, 1979). 

Victor McCoy v~ Crescent Coal Company, PIKE 77-71; (Judge Lasher, 

August 8, 1979) • 

Climax Molybdenum Company v. Secretary of Labor, MSHA & Oil, Chemical and 

Atomic Workers' International Union, Local 2-24410, DENV 79-102-M through 

DENV 79-105-M; (Judge Michels, August 14, 1979). 

Review was Denied in the following case during the month of September: 

Magma Copper Company v. Secretary of Labor, MSHA, DENV 79-433-PM; 

(Judge Merlin, August 9, 1979). 

FEDERAL MINE SAFETY AND HEALTH R~VIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 4, 1979 

LOCAL UNION NO. 3453, DISTRICT 17, 

UNITED MINE WORKERS OF AMERICA Docket No. HOPE 77-l93 

v. IBM.'\ No. 78-7 

KANAWHA COAL COMPANY 

DECISION 

This appeal was pending before the Interior Department Board of 

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

before the Commission for disposition. Section 301 of the Federal 

Mine Safety and Health Amendments Act of 1977, 30 U.S.C. §961 (1978). 

The decision of Administrative Law Judge Stewart awarding compensation and interest in this proceeding under section llO(a) of the 

Federal Coal Mine Health.and Safety Act of 1969, 30 U.S.C. §820(a) 

(1976)(amended 1977), is affirmed. See our decision in Youngstown 

Mines Corporation, No. HOPE 76-231 (August 15, 1979). 

Marian Peavtman ~ease, Commissioner \/ ,, 

79-9-1 
FED~RAL MINE S.a.FETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR . 

WASHINGTON, D.C. 20006 

September 4, 1979 

LOCAL UNION NO. 5429, UNITED MINE 

WORKERS OF AMERICA 

v. Docket No. MORG 79-13 

CONSOLIDATION COAL COMPANY 

DECISION 

This compensation proceeding arises under section 111 of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. §801 et~· (1978) ["the 

Act"]. 1./ The United Mine Workers of America (UMWA) filed with the 

Connnission on November 1, 1978, an application for compensation for work 

allegedly lost by two shifts of miners idied by a section 103(k) withdrawal 

order issued to Consolidation Coal Company (Consol) on August 14, 1978. 2/ 

On January 24, 1979, Administrative Law Judge Fauver granted Consol's -

motion to dismiss the application, finding that the applicant had failed 

to comply with the time limits set in Rule 29 of the Commission's Interim 

Procedural Rules, 1./ and had not shown a reasonable basis for the late 

filing of the compensation claim. 

1./ §111 of the Act provides in pertinent part: 

If a coal ••• mine or area of such mine is closed by an order 

issued under section 103 ••• all miners working during the shift 

when such order was issued who are idled by such order shall be 

entitled, regardless of the result of any review of such order, to 

full compensation by the operator at their regular rates of pay for 

the period they are idled, but for not more than the balance of 

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

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

shall be entitled to full compensation by the operator at their · 

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

more than four hours of such shift •.• The Commission shall have 

authority to order compensation due under this section upon the 

filing of a complaint by a miner or his representative •••• 

]:_! §103(k) of the Act provides in pertinent part: 

In the event of any e.ccident ••• in a coal ••• mine, an authorized 

representative of the Secretary, when present, may issue such 

orders as he deems appropriate to insure the safety of any person •••• 

1./ Interim Rule 29 provided: 

An application for compensation shall be filed within 30 days after 

the commencement of the period the applicants are idled or would 

have been idled as a result of the order which gives rise to the 

claim. 

On July 30, 1979, procedural rules replacing the interim rules became 

effective. Under the new rules the period for filing applications for 

compensation is increased to 90 4ays. 44 Fed. Reg. 38,230 (1979) (to be 

codified in 29 CFR §2700.35). 

79-9-2 
The Commission granted the UMWA's petition for discretionary review 

to determine whether the administrative law judge erred in granting 

Consol's motion to dismiss. For the reasons that follow, we conclude 

that the 30-day filing period set forth in Interim Rule 29 for filing 

applications for compensation under the 1977 Act may be extended in 

appropriate circumstances and that such circumstances are present in 

this case. Accordingly, we reverse and remand for further proceedings 

consistent with this opinion. 

On August 14, 1978, a Mine Safety and Health Administration ·(MSHA) 

inspector issued a section 103(k) withdrawal order at Consol's Arkwright 

Mine following a roof collapse that killed two miners. A. Neil Humphreys, 

a district safety inspector for the UMWA, was notified of the roof fall 

and inspected the area with federal, state, and company officials. 

Humphreys investigated the accident and determined, in his view, that 

certain miners had not been compensated pursuant to section 111 of the 

Act. Humphreys directed the union's health and safety committee to meet 

with management and request compensation; the committee's request was 

refused. On September 18, 1978, Humphreys and the health and safety 

committee met with management representatives. At this meeting the 

management representatives refused to pay the requested compensation or 

to provide Humphreys with a list of miners scheduled to work on the 

involved shifts. On September 28, 1978, management reiterated its 

position that no compensation was due under section 111. 

In light of these events, Humphreys filed a discrimination complaint 

under section 105(c) of the Act, believing it to be the only course of 

action available to him. On October 2, 1978, an MSHA representative 

informed Humphreys that a compensation claim under section 111, rather 

than a discrimination complaint, was appropriate under the circumstances. 

He further informed Humphreys that there was a 30-day time limit on the 

filing of compensation claims. On November 1, 1978, the UMWA filed an 

application for compensation. !!_/ 

On review, the UMWA argues that the 30-day filing period in Interim 

Rule 29 can be extended in appropriate circumstances and that such 

circumstances exist in this case. Consol urges that the judge properly 

concluded that the facts do not reveal a reasonable basis for extending 

the 30-day period to permit the late filing of the application for 

compensation. Consol contends also that the failure to file within the 

time limits prescribed by the Commission's rule "bars the agency from 

exercising jurisdiction over the matter". In Consol's view, United Mine 

Workers of America v. Kleppe, 561 F.2d 1258 (7th Cir. 1977), controls 

the Commission's decision in this case. We reject Consol's arguments. 

!±_/ The facts recited are largely derived from an affidavit by Humphr.eys 

that was attached to the UMWA's opposition to Consol's motion to dismiss. 

1301 
In deciding whether a limitations period may be extended or tolled, 

the basic question "is one of legislative intent whether the right shall 

be enforceable .•• after the prescribed time." Burnett v. N. Y. Central 

R. R., 380 U.S. 424, 426 (1965). Unlike other provisions of the Act, 

however, (e.g., sections 105(a), 105(c)(3), and 106(a)(l)), Congress did 

not provide a time period for filing compensation claims under section 

111. The 30-day limit at issue appeared in the Commission's Interim 

Procedural Rules. On the question of whether the 30-day filing period 

provided for in the Commission's interim rules can be extended in appropriate circumstances, the rules themselves shed little light. For this 

reason, we will interpret the rule in a manner consistent with the 

purposes of the statute it seeks to implement. See Irvington Moore, Di~. 

of U.S. Natural Resources v. O.S.H.R.C., 556 F.2d 431, 435 (9th Cir. 

1977). 

The Federal Mine Safety and Health Act of 1977 is a remedial statute, 

the "primary objective [of which] is to assure the maximum safety and 

health of miners." U.S. Senate, Committee on Human Resources, Subcommittee 

on Labor, Legislative History of the Federal Mine Safety and Health Act 

of 1977, 95th Cong., 2d Sess. at 634 (1978). Cf. Freeman Coal Mining 

Company v. IBMOA, 504 F.2d 741, 744 (7th Cir. 1974). The Senate Committee 

emphasized the remedial nature of the Actrs compensation provision. The 

Committee stated: 

This provision is not intended to be punitive, but 

recognizes that miners should not lose pay because of 

the operator's violations •••. It is therefore a 

remedial provision which also furnishes added incentive 

for the operator to comply with the law. This provision 

will also remove any possible inhibition on the inspector 

in the issuance of closure orders. Legislative History, 

supra, at 634-635. 

In interpreting remedial safety and health legislation, "[i]t is so 

obvious as to be beyond dispute that •.• narrow or limited construction 

is to be eschewed .•• [L]iberal construction in light of the prime 

purpose of the legislation is to be employed." St. Mary's Sewer 

Pipe Co. v. Director, U.S. Bureau of Mines, 262 F.2d 378, 381 (3rd 

Cir. 1959); Phillips v. Interior Board of Mine Operations Appeals, 500 

F.2d 772, 782 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975). We 

believe that a liberal construction of the 30-day filing period for 

compensation claims requires a conclusion that the period may be 

extended in appropriate circumstances. See, Dartt v. Shell, 539 F.2d 

1256, 1260 (10th Cir. 1976), aff'd by eq~ly divided court, 434 U.S. 

99 (1977); Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th 

Cir. 1978); Moses v. Falstaff Brewing Corporation, 525 F.2d 92 (8th 

Cir. 1975). 

1302 
Furthermore, while section 111 of the 1977 Act does not specify a 

time limit for the filing of compensation claims, the Act's discrimination provisions contain analogous time limits. In explaining section 

105(c)(2) 's requirement that a discrimination complaint be brought 

within 60 days of the alleged violation, the Senate committee stated: 

The bill provides that a miner may, within 60 days 

after a violation occurs, file a complaint with the 

Secretary. While this time-limit is necessary to avoid 

stale claims being brought, it should not be construed 

strictly where the filing of a complaint is delayed 

under justifiable circumstances. Circumstances which 

could warrant the extension of the time-limit would 

include a case where the miner within the 60 day period 

brings the complaint to the attention of another agency 

or to his employer, or the miner fails to meet the time 

limit because he is misled as to or misunderstands his 

rights under the Act. Legislative History, supra, at 

624. ii 

The Senate committee also expressed a similar view as to the 30-day 

period provided for in section 105(c)(3) in which a miner can file a 

discrimination complaint on his own behalf if the Secretary determines 

that no violation has occurred: "[A]s mentioned above in connection 

with the time for filing complaints, this thirty-day limitation may be 

waived by the court in appropriate circumstances for excusable failure 

to meet the requirement." Legislative History, supra, at 625. 

Thus, it is clear that Congress intended that the time periods 

for filing discrimination complaints under the 1977 Act can be extended 

in appropriate circumstances. Because section 105 and section 111 are 

both part of the same remedial legislation, they should be interpreted 

and applied in a consistent fashion. For this reason also, we conclude 

that the 30-day period provided in Interim Rule 29 for filing applications for compensation can be extended in appropriate circumstances. 

ii Baker v. North American Coal Companv., 8 IBHA 164, 179-80 (1977), 

aff'd in part, rev. in part, Baker v. IBHOA, 595 F.2d 746 (1978); 

decided under the discrimination provisions of the Federal Coal Hine 

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

1977)("1969 Act"), reached a similar conclusion. 

1303 
We reject Consol's assertion that the Seventh Circuit's decision 

in UMWA v. Kleppe, supra, controls our decision in this case. First, 

Kleppe is distinguishable from the present case. Consol relies on the 

court's statement that the Secretary of Interior's regulation providing 

a 45-day period for the filing of compensation claims under section 

llO(a) of the 1969 Act, "is not a 'statute of limitations' designed to 

protect mine operators from stale claims, but simply a condition 

precedent to invocation of the agency's administrative jurisdiction •.•• " 

561 F.2d at 1261. ~/ The petitioner in Kleppe, however, had argued in 

the administrative proceedings below that the regulation setting a 45-

day filing period was invalid; no argument was made before the agency 

that the time limit should have been tolled·under the circumstances 

therein involved. Therefore, on appeal the court noted that, in view 

of the "vacuous record" in this regard, it could not determine what 

\)(effect~ refusal.t~ toll the lim. itations period would have had on the 1

\\.egulation's validity. 561 F.2d at 1263. 

Second, in Kleppe the court was faced with an interpretation by 

the Board of Mine Operations Appeals of a regulation promulgated by 

the Secretary of Interior under the 1969 Act. Here, the Connnission is 

interpreting its own procedural rule under the 1977 Act. 

Our next inquiry is whether the facts in the present case warrant 

an extension of the 30-day time limit. The primary purpose of a 

limitations period such as that contained in Interim Rule 29 is to 

assure fairness to the parties against whom claims are brought. 

Burnett v. N.Y. Central R.R., supra, 380 U.S. at 428. Limitations 

periods 

'promote justice by preventing surprises through the 

revival of claims that have been allowed to slumber 

until evidence has been lost, memories have faded, and 

witnesses have disappeared. The theory is that even if 

one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation 

and that the right of be free of stale claims in time 

comes to prevail over the right to prosecute them. ' 

Order of Railroad Telegraphers v. Railway Express Agency, 

Inc., 321 U.S. 342, 348-349. Moreover, the courts ought 

to be relieved of the burden of trying stale claims when 

a plaintiff has slept on his rights. Burnett, supra, 

380 U.S. at 428. 

6/ We note, however, that, despite this characterization, the court 

analogized the regulation to the time limits for the filing of pleadings 

under Fed. R. Civ. P. 12(a) and the taking of appeals from final judgments under Fed. R. App. P. 4, both of which can be extended for 

excusable neglect. 

1304 
Tp be balanced· against this policy of repose, however, are considerations 

of whether "the interests of justice require vindication of the plaintiff's 

rights" in a particular case. Id. 

In the present case, the applicant did not sleep on its rights. 

Rather, from the time that it first discovered the potential claim it 

attempted to secure compensation for the idled miners. This was done 

first through a request for payment made by the health and safety 

committee, then through a meeting with management representatives, 

followed by an attempt to secure relief through the filing of a discrimination complaint, and, finally, filing .an.application for compensation 

within 30 days after being informed that this was the proper course to 

follow. Furthermore, Consol does not argue, and the record does not 

indicate, that it in any manner relied on the policy of repose embodied 

in Interim Rule 29's 30-day filing period or was otherwise prejudiced. 

In fac·t, as discussed above, it had notice of the claim to compensation 

soon after the events giving rise to the claim occurred. For these 

reasons, we conclude that the judge erred in finding that a reasonable 

basis was not shown for allowing the late filing of the application 

for compensation in this case. 

Accordingly, we reverse and remand for further proceedings consistent with this decision. 

1305 

PearlmaniNease, Commissioner . I . I . I ' I o,,' 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

UNITED STATES STEEL 

CORPORATION, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY Al."\ID HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 17, 1979 

, 

Docket Nos. PITT 76-160-P 

PITT 76-162-P 

IBMA No. 77-33 

DECISION 

This appeal was pending before the Interior Department Board of 

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

the Commission for decision. 30 U.S.C. §961 (1978). The administrative 

law judge found two violations of 30 CFR §75.1714-2(a) 1/ and assessed a 

penalty of $100 for each violation. U.S. Steel appealed the finding of 

violations and the amount of the penalties. We affirm the judge's 

decision. 

On April 7, 1975, a MESA inspector issued a notice of violation of 

§75.1714-2(a) after observing an employee of U.S. Steel neither wearing 

nor carrying a self-rescue device in an underground section of Maple 

Creek No. 2 Mine. On May 9, 1975, a MESA inspector issued a notice of 

violation of §75.1714-2(a) after observing two men neither wearing nor 

carrying self-rescue devices while performing electrical work at the 

slope bottom of U.S. Steel's Robena No. 1 Mine. 

U.S. Steel argues that 30 CFR §75.1714-2(a) places no obligation on 

the operator with respect to the wearing or carrying of self-rescue 

devices. The company asserts that it complied with the standard by 

establishing a program designed to assure that self-rescue devices are 

available to all employees, by training all employees in the use of the 

devices, and by enforcing its program with due diligence. U.S. Steel 

];_/ 30 CFR §75.1714-2(a) provides: 

(a) Except as provided in paragraphs (b) and (c) of this section, 

self-rescue devices meeting the requirements of §75.1714 shall be 

worn or carried on the person o~ each miner. 

79-9-6 

. 1306 
also argues that the penalties are excessive in view of its good history, prompt abatement and lack of negligence· 

It is well established that under the Federal Coal Mine Health and 

Safety Act of 1969 ]:./ an operator is liable for violations of mandatory 

health or safety standards without regard to fault. Valley Camp Coal 

Co., 1IBMA196 (1972); Webster County Coal Corp., 7 IBMA 264 (1977); 

,Republic Steel Corp., 1 FMSHRC 5, 9-10 (1979). Thus, in the present 

case the issue is not whether the operator. acted negligently, but whether it in fact complied with the mandatory language of 30 CFR §75.1714-

2(a). ~ushton Mining Co.

1

,f8 IBMA 2d55, 259-~b60 (1978). The.edited h ) 

standar requires that se -rescue evices e worn or carrie on t e 

person of each miner." The administrative law judge found, and U.S. 

Steel does not dispute, that its employees were not wearing or carrying 

self-rescue devices. Therefore, we affirm the judge's finding of a 

violation. ]/U.S. Steel's safety program and its efforts to enforce it 

are irrelevant to the finding of a violation. Rather, these factors are 

appropriately considered in the assessment of a penalty. !:±./ 

The judge's decision reflects that he considered the criteria set 

forth in section 109(a)(l) of the 1969 Act in assessing a penalty of 

$100 for each violation. The penalties are appropriate and will not be 

disturbed. 

2/ 30 U.S.C. §801 et~· (1976) (amended 1977). 

3! U.S. Steel's argument relying on North American Coal Corp., 3 IBMA 

93 (1974), is not persuasive. The rationale of the Board's decision in 

North American has been limit~d to the language of the particular standard involved in that case, 30 CFR §75.1720. Webster County Coal Corp., 

supra. See also Rushton Mining Co., supra. The present case presents 

no occasion to determine whether we agree with the Board's interpretation of 30 CFR §75.1720. 

!:±../ Section 109(a)(l) of the 1969 Act provided: 

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. 

(Emphasis added.) 

1307 
Accordingly, the judge's decision is affirmed. 

~QJrJW~,QQ1]wau Marian Pearlman Nease, ~ Commissioner 

1308 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 21, 1979 

CLIMAX MOLYBDENUM COMPANY Docket No, 

a division of AMAX INC. Docket No. 

Docket No. 

Docket No. 

v. Docket No. 

Docket No. 

SECRETARY OF LABOR, Docket No. 

MINE SAFETY AND HEALTH Docket No. 

ADMINISTRATION (MSHA) Docket No. 

Docket No. 

Docket No. 

DECISION 

DENV 79-3-M 

DENV 79-4-M 

DENV 79-5-M 

DENV 79-6-M 

DENV 79-7-M 

DENV 79-8-M 

DENV 79-9-M 

DENV 79-10-M 

DENV 79-11-M 

DENV 79-12-M 

DENV 79-13-M 

These proceedings arose from applications filed by Climax 

Molybdenum Company (Climax) for review of citations issued for alleged 

violations of 30 CFR 57.5-5, pertaining to dust exposure. On 

November 9, 1978, the administrative law judge issued an order to Climax 

to "provide information and clarification" concerning its applications 

for review. Climax was ordered to: (1) provide legible copies of the 

citations; (2) advise the judge whether the citations had been abated; 

and (3) inform the judge whether it was seeking relief by way of a 

review on the merits of abated citations. The order specified no date 

for reply. 

On January 10, 1979, the judge dismissed the applications for 

review for Climax's failure to comply with his November 9th order. 

As of that date, 62 days after the judge issued his order, Climax 

had not responded in any manner to the judge. On January 11, 1979, 

before learning of the judge's dismissal, Climax complied with the 

judge's order. In addition, Climax also filed a motion and brief 

requesting the judge to rule on the question of "immediate" review of 

unabated citations or to certify the issue for interlocutory review to 

the Commission. On February 21, the Commission granted Climax's 

petition for discretionary review of the judge's order of dismissal. 

On review, Climax argues that the judge's dismissal of its applications for review was an abuse of discretion. Climax emphasizes the 

absence in the order of a time limit for response, that it did comply 

with the order (albeit one day after the judge's dismissal order), that 

its time for response was reasonable in light of the complex brief it 

also filed on the issue of immediate review, that dismissing the cases 

was a disproportionate reaction to the facts, and that the judge elevated 

the need for a prompt determination of the issues over the need for a 

just determination. 

79-9-12 

1309 
We are not impressed with Climax's assertions that its delay in 

response was, in part, necessitated by its efforts to brief the jurisdictional questions presented by its applications. The judge's order 

requested information and clarification; it did not request nor require 

an extensive brief. 

However, an order which lacks a date for response gives no guidance 

to its recipients for the timing of their compliance and it thereby 

promotes controversies such as the one before us. Because the lack of a 

date certain for compliance may have significantly contributed to 

Climax's lack of prompt response to the judge's order, we find that the 

dismissal of these applications for review in this instance was an 

unduly harsh sanction and therefore an abuse of the judge's discretion. 1/ 

Accordingly, the decision of the judge is reversed and the cases are 

remanded for further proceedings consistent with this decision. 

Je~aldie, 

~,£~ Chairman 

!~1~::;~ Marian Pearlman Nease, Commissioner 

/ 

];./ At the time in question, the Commission's interim procedural rules 

did not require the judge to issue a show cause order prior to dismissing 

a case seeking review of a citation or withdrawal order for failure to 

comply with a prehearing order of the judge. The Commission's permanent 

procedural rules do provide for a prior show cause proceeding. See 44 

Fed. Reg. 38,232 (1979) (to be codified in 29 CFR §2700.63). Thus, in 

future cases, an opportunity for presentation and consideration of 

misunderstandings such as this one is available. 

1310 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 21, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

UNITED MINE WORKERS OF AMERICA, 

(UMWA), 

v. 

CANTERBURY CGAL COMPANY 

Docket Nos. PITT 78-127 

PITT 78-128 

PITT 78-301-P 

PITT 78-302-P 

DECISION 

These cases arise under the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. §801 et ~· (1976) (amended 1977). On January 2, 

1979, the Commission granted petitions for discretionary review filed by 

the United Mine Workers of America (Union) and the Secretary of Labor. 

For the reasons that follow, we reverse the judge's decision and remand 

for a hearing de nova before a different administrative law judge. 

In this proceeding petitions for assessment of civil penalty filed 

by the Secretary were consolidated with applications for review filed by 

Canterbury. Procedurally, all of these cases were affected by the 

judge's disposition of a notice of violation issued to Canterbury on 

September 23, 1977, under section 104(c) of the Act. 1./ This notice, 

1./ Section 104(c) provides in pertinent part: 

If, upon any inspection of a coal mine, an authorized representative of the Secretary finds that there has been a violation of 

any mandatory health or safety standard, and if he also finds that, 

while the conditions created by such violation do not cause 

imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a 

mine safety or health hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator to comply with 

such mandatory health or safaty standards, he shall include such 

finding in any notice given to the operator under this Act. If, 

during the same inspection or any subsequent inspection of such 

mine within ninety days after the issuance of such notice, an 

authorized representative of the Secretary finds another violation 

of any mandatory health or safety standard and finds such violation 

79-9-10 

1311 
which concerns a "cutter" or a tear in the roof of an underground mine, 

provided the basis for the issuance of two subsequent section 104(c) 

withdrawal orders, ±./ concerning alleged violations related to pillar 

recovery and coal accumulations. 

Canterbury filed a motion for summary disposition regarding the 

104(c) withdrawal orders. In the motion Canterbury argued, among other 

things, that the underlying cutter notice was invalid. The administrative law judge denied the motion without prejudice to renew, and 

ordered the Secretary and Union to present their evidence regarding the 

underlying cutter notice. The Secretary and Union then presented that 

evidence at a hearing. At the conclusion of their presentation the 

judge grante.d a motion by Canterbury for dismissal of the cutter notice 

for failure to make a prima facie case. ll The judge's decision from 

the bench was reduced to writing on April 21, 1978. 

The issues raised by the petitions for discretionary review focus 

almost exclusively on the judge's conduct of the hearing on the cutter 

notice. On review the Secretary and Union argue that they were denied 

a fair hearing on that issue because the judge "took the case away from 

counsel by the frequency and timing of his questions." 

At the outset, we acknowledge the considerable leeway afforded 

administrative law judges in regulating the course of a hearing and in 

developing a complete and adequate record~ The Manual for Administrative 

Law Judges, published by the Administrative Conference of the United 

States, states: 

The Judge may question the witness initially if it is likely to 

forestall extensive examination by others. He should interrupt 

when the witness and counsel are at cross purposes, when the record 

may not reflect with clarity what the witness intends to convey, or 

when for some other reason assistance is needed to assure orderly 

development of the subject matter. At the close of cross or 

direct, the Judge may question the witness to clarify any confusion 

or ambiguous testimony or to develop additional facts. !i_/ 

fn. !/ cont'd 

to be also caused by an unwarrantable failure of such operator to 

so comply, he shall forthwith issue an order requiring the operator 

to cause all persons in the area affected by such violation, ••• to 

be withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines that 

such violation has been abated. 

2/ The cutter notice is the sub.:ittct of PITT 78-301-P; the withdrawal 

orders are the subject of PITT 78-302-P, PITT 78-127 and 128. 

ll In addition, the alleged pillar recovery violation was dismissed on 

the ground that no triable issue of fact was shown to exist and that 

Canterbury was entitled to summary disposition as a matter of law. 

!i_I Ruhlen, Manual for Administrative Law Judges, at 35 (1974). 

1312 
See also 2 Davis, Administrative Law 

examiner should avoid encroaching on 

cessive or improper participation of 

denial of fair hearing." Id. at 9. 

106 F.2d 100, 113 (8th Cir-:-1939). 

§10.02, at 8-9 (1958). "But an 

the domain of counsel ••.• Exexaminers may, of course, amount to 

See also Cupples Co. Mfrs. v. NLRB, 

In the present case, the inherent authority of judges to participate in hearings is not in question. Rather, the Secretary and Union 

~argue that the judge interjected himself into the cutter notice proceedings so often and so extensively that they were denied the 

opportunity to develop their case. We agree. A reading of the entire 

record establishes that the judge's questioning encroached on the domain 

of counsel; he did not permit the parties ~n opportunity to develop 

their evidence in their own way. By numerous interruptions and 

questions, the judge dominated the examination of every witness. See 

Modern Methods, Inc. 12 Ad.L. Dec.2d 57, 60 (FTC, 1962); Better 

Monkey Grip Co., 5 Ad.L. Dec. 2d 452 (NLRB, 1955). 

The record reflects that the judge rarely waited until the close 

of direct or cross examination before he questioned witnesses. A clear 

example of the judge's overzealous participation took place during 

the Secretary's attempt to question his chief witness, Inspector 

McNece. The record reflects the following pattern of questioning: 

QUESTIONER NUMBER OF QUESTIONS 

Secretary . ........................ . 1 

Court . ..................... · ............. 5 

Secretary . ....... ~ .................. 1 

Court ................................... 1 

Secretary .••••••.••••••.•.•..••.••• l 

Court . ............................... . 125 

Secretary . ......................... 6 

Court . ................................. 20 

Secretary . ......................... 2 

Court . ................................. 64 

Secretary .. ....................... . 1 

Court . ................................ . 16 1 

(Tr. 181-234). 

This pattern of unbalanced questioning continued throughout the 

entire hearing. It is also difficult to characterize the judge's 

questions as an effort to clarify the record. Rather, we find the judge 

attempted to develop the evidence ·~{Il his own, and that his intrusive 

questioning hindered rather than advanced the development of a complete 

record. The extensive number of questions asked by the judge further 

reflects his undue interference in the proceedings. Although we do not. 

profess to establish numerical guidelines, the record reflects that the 

judge asked 970 questions while the attorneys for the Secretary, Union, 

and Canterbury asked a combined total of only 334. The claim that the 

judge "took the case away from counsel" is amply demonstrated by the 

record. 

1313 
For these reasons, we find that the judge's conduct during the 

course of the hearing on the cutter notice constituted an abuse of his 

discretion. In making this finding, we have relied on the entire 

record, which discloses a lack of proper judicial restraint by the 

administrative law judge. The effect was to substantially hinder the 

parties in the presentation of their evidence and deny them their right 

to a fair and impartial hearing. ~ Accordingly, we vacate the decision 

of the judge and remand the case for assignment by the Chief Administrative Law Judge for a de nova hearing before a different administrative law judge. !!_/ 

In vacating the decision of the judge, we have by necessity vacated 

all findings made by the judge, including those involving the credibility of witnesses, conduct of counsel, and the summary disposition of 

the alleged pillar recovery violation. As to the latter, we note that 

the record reflects that a genuine issue of material fact was raised in 

the affidavits concerning the mining sequence and its conformance to the 

roof control plan during the pillar recovery operations. Under these 

circumstances, summary disposition was not proper. United States v. 

Diebold, 369 U.S. 654, 655 (1962). J.} 

Frank' F~ ,Jestrab'·/t.3'mniissioner ·., \. \~ ' 

, I ' 7 /,.I/ -~. f.~ ~ ' ,' 

/ /,.· . _....,,..; ..... !_.,"'-' • ~· • · •' ..- 'f.:. l ::l-:tL 

A. E. Lawson, Gommissioner 

·~\\0J.JLuJ~ ~\~\\~JH) '\\1uR 

Marian Pearlman Nease, Connnissioner 

5/ See 5 U.S.C. §556(b) and (d). 

E_/ See Nicodemus v. Chrysler Cor.E_., 596 F.2d 152 (6th Cir. 1979); 

Reserve Mining Co., v. Lord, 529 f~2d 181 (8th Cir. 1976); 

United States·ex rel. Wilson v. Coughlin, 422 F.2d 100, 110 (7th Cir. 

1973); and In re United States, 286 F.2d 556, 565 (1st Cir. 1961). 

II In light of our disposition, it is unnecessary to reach the 

other issues and arguments raised by the parties. 

1314 
FEDERAL MINE SAFETY ~ND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 28, 1979 

LOCAL UNION NO. 3453, DISTRICT 17, 

UNITED HINE WORKERS OF AMERICA 

v. 

KANAWHA COAL COMPANY 

ORDER 

Docket No. HOPE 77-193 

IBMA No. 78-7 

On September 14, 1979, Kanawha Coal Company filed a petition for 

reconsideration of the Commission's decision issued on September 4. 

Kanawha seeks reconsideration of one issue raised in its appeal and 

purportedly not resolved properly by the Commission's decision. For the 

reasons that follow, we deny the petition. 

Kanawha submits that the Commission's decision does not properly 

resolve whether the administrative law judge erred in finding that 

certain miners were idled by a withdrawal order issued to Kanawha and 

entitled to four hours compensation under section llO(a) l/ of the 

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §801 et~ 

(1976~ (amended 1977). Kanawha argues that the Commission erred in 

affirming the judge's decision because the involved miners were not 

idled by the withdrawal order, but by their refusal to accept Kanawha's 

off er of four hours alternative work during the first half of their 

shift. 

The interpretation of section llO(a) by the Commission in Youngstown 

Mines Corp., No. HOPE 76-231 (August 15, 1979), requires the award of 

compensation in the circumstances here. In Youngstown, the Commission 

awarded four hours compensation to miners who accepted and performed 

four hours of alternative work during the first half of their shift and .. 1./ Section llO(a) of the Act, in pertinent part, provided: 

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 the 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.] 

79-9-17 

1315 
were then sent home. The Commission found that "[b]ut for the withdrawal 

order, the miners would have worked and received compensation for the 

final [four] hours of their shiftn. Here, even if the miners had accepted 

alternative work for the first four hours of their shift, alternative 

work was not available for the final four hours. Therefore, the miners 

were idled by the withdrawal order during the second half of their shift 

and are due compensation for this period under section llO(a). Youngstown 

Mines Corp. This case does not present the issue of whether miners who 

refuse an offer of eight hours of alternative work are entitled to compensation under section llO(a). Therefore, we need not embrace the judge's 

reasoning to the extent that his decision can be read to award compensation because miners were unable to perform their "regular duties" or 

"specific jobs". 

Accordingly, the petition for reconsideration is denied. 

~e~ Waldi~, Chairman 

. 

/ / ~ 

Marianf PearJ'.man Nease, Commissioner 

i I 

~) 

1316 
Administrative Law Judge Decisions 

September 1, 1979 - September 30, 1979 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISS50N . OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEF 4 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

Docket No. BARB 78-652-P 

A.C. No. Ol-00758-02023V 

No. 3 Mine 

DECISION 

Appearances: Leo J. McGinn, Esq., 9ffice of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Robert W. Pollard, Esq., Birmingham, A~abama, for 

Respondent. 

Befo:i:e: Administrative Law Judge Michels 

This is a civil penalty proceeding brought under section llO(a) 

of the Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c. 

§ 820(a). The petition for assessment of civil penalty was filed by 

the Mine Safety and Health Administration (MSHA) on August 24, 1978, 

alleging a violation of 30 CFR 75 .1L~03. Respondent answered on 

September 13, 1978, and denied that the alleged violation occurred. 

A hearing was held on May 3, 1979, in Birmingham, Alabama, at which 

both parties were represented by counsel. Posthearing briefs and proposed findings and conclusions have been filed. The proposed findings 

which have not been adopted herein are rejected as immaterial or not 

supported by fact.!/ 

Statement of the Case 

The facts in this proceeding are not in serious dispute. The 

principal issue is whether Respondent was properly charged under the 

"safeguard" provisions of the regulations. A safeguard notice is 

isst.ied by an inspector where he believes a transportation hazard 

exists which is not covered by published standards. Thereafter, the 

safeguard becomes, in effect, a mandatory standard applicable only to 

1/ Respondent's exhibits are identified with a capital "R" and a 

number· MSHA's with a "G" and a number. ' 

1 ~17 
the mine cited. In this case, the min·e was originally placed under 

a safeguard notice for the failure to bave a derail or stop block 

"near" the mine shaft. The safeguard notice.was issued and then was 

abated by the placement of a derail 71 feet from the collar at the 

top of the mine shaft. Two and one-half years later, another inspector 

observed a rail car between the derail, which was still in place, 

though inoperative, and the mine shaft. Thereupon, this second 

inspector cited Respondent for a violation of 30 CFR 75.1403 alleging 

that the safeguard notice was not complied with because a flat car 

was left unattended without a derail, stop blqck or dead man which 

would have prevented the car from falling into the shaft bottom. 

ISSUES 

The issues, as the Respondent has appropriately phrased them, 

are as follows: 

1. Does 30 CFR 75.1403 have any application to the surface work 

areas of an underground mine? 

2. If 30 CFR 75.1403 does apply to the surface work areas of 

an underground mine, does the fact that a loaded supply car parked 

between a derail, required by a previously-issued Notice to Prc"1ide 

Safeguards, and the collar of a mine shaft constitute a violation 

of the previously-issued Notice to Provide Safeguards, which only 

required that a derail be installed on the track leading to the mine 

shaft? 

FINDINGS OF FACl 

Respondent's No. 3 Mine is an underground coal mine located in 

Jefferson County, Alabama (Tr. 21). A supply yard is located on the 

surface of this underground facility. Within the confines of the 

supply yard and running for approximately 200 feet along the surface 

is a rail track (Tr. 76). This track travels through the yard up to 

the collar of the shaft. It goes over fairly level ground for the 

first 100 feet and then for the remainder of the stretch runs up a 

slight incline towards the shaft (Tr. 72-74, 77). Its purpose is to 

serve as a means upon which men and supplies can be transported in 

cars to the mine shaft for entry into the mine. A tow motor or 

forklift is used to move these supply cars along the entire length of 

th~ track to the shaft. A gate is located at the end of the track in 

front of the shaft which is equipped with certain protective devices 

(Tr. 84, 86-87). Upon the cars reaching this point, the gate is 

opened and they are then loaded into an elevator and taken from the 

surface down through the shaft into the mine (Tr. 9-10). The shaft 

is approximately 1,300 feet deep (Tr. 9, 48). 

l'he following references to the testimony are virtually undisputed with some exceptions which are noted. 

1318 
Petitioner's first witness, MSHA Inspector Harlan Blanton, testified that he issued the underlying safeguard notice while he was conducting a spot inspection·at Respondent's No. 3 Mine on January 9, 

1975 (Tr. 7-8). 2/ During this inspection, he observed a supply car 

located on the surface track just outby the manshaft where supplies 

and men are transported to the underground section of the mine (Tr. 

8). Normally, these cars go the entire length of the track along the 

surface until they come to the collar (Tr. 21). Such cars are lowered 

into an elevator at the manshaft and then lowered into the mine or 

later hoisted out (Tr. 9-10). Cars go directly from the track into 

the shaft. Inspector Blanton estimated the shaft is approximately 

1,300 feet deep (Tr. 9). Petitioner's second witness, Inspector 

Whalen, also stated the shaft was 1,300 feet deep (Tr. 48). 

Inspector Blanton examined both the supply car and the track 

it waB located upon and he testified that the car was located in the 

neighborhood of 50 to 100 feet from the collar of the mine shaft (Tr. 

10). He thought it was a regular mine supply car, but he could not 

recall whether it was loaded or empty. He described the car as being 

"unattended" and he defined this term to mean not hooked or secured 

to some other machine, such as a locomotive (Tr. 22-23) (this is not 

consistent with Inspector Whalen's definition of the term referred to 

below). The inspector testified that when he observed the car, a 

Mr. Griffin, whom he identified as Respondent's safety director, and 

Mr. Wayne Kirtz, the chairman of the safety committee, were present. 

Inspector Blanton asked if there was a derail to keep the car from 

"accidentally being pushed into the mine or rolling into the mine" 

(Tr. 11). Thereupon, he and the other members of the group looked 

up and down the track, but their search did not uncover a derail. 

After determining that a derail was not present on this stretch of 

surface track and after concluding that such a safety device was 

necessary, the inspector issued Safeguard No"tice No. 1 HEB pursuant 

to section 314(b) of the Federal Coal Mine Health and Safety Act of 

1969. 3/ This safeguard notice states: "The track on the surface to 

the manshaft was not provided with stop blocks or .derails. Positive 

stop blocks or derails should be installed on the track near the 

manshaft. Served to J. M. Griffin, safety director at the mine 

office at 9:30 a.m. January 9, 1975" (Exh. G-1). The inspector 

cla~med that he explained to the company's safety director and the 

chairman of the safety committee the need for such a safety device 

and they immediately began preparations to install a derail on the 

track. Inspector Blanton described what this derail was: 

2/ Mr. Blanton has been an MSHA inspector since approximately 1970. 

He has approximately 16 years' experience in the industry and holds 

foreman papers issued by the State of Alabama. 

3/ This section remains unchanged as section 314(b) of the Federal 

Mine Safety and Health Act of 1977. 

1319 
·In this case, they undone a joint in the track and put 

a piece of rcil that would open up the track in case a car 

started to down the track it would derail the car and 

wouldn't let it proceed on the rail. ·It would throw it 

off the rail onto the ground. And that way, "it wouldn't 

roll on down into the shaft. 

(Tr. ll). 

Inspector Blanton recalled that this derail was installed within 

50 or 75 feet of the collar of the shaft. He did not tell the 

Respondent where to put this device; however, once it was installed, 

he did approve the derail and its location as he thought it was a 

sufficient distance from the collar to prevent a car from going into 

the shaft (Tr. 16-17, 22). He te~tified that this derail would be 

left open when cars were on the track and these cars would have to be 

located outby the derail if they were unattended (Tr. 12). The 

inspector indicated his belief that if cars were located inby the 

derail--towards the shaft--the derail was ineffective for its purpose 

of preventing cars from falling, accidentally or otherwise, into the 

shaft (Tr. 13). 

On cross-examination, Inspector Blanton stated that he did not 

write on the safeguard notice anything about where or where not the 

Respondent was to park supply cars (Tr. 13-14). However, he did specifically testify that he told Mr. Griffin, the Respondent's safety 

director, that it would no longer be allowable for Respondent to park 

supply cars between or inby the derail and the shaft (Tr. 14-15)~ 

Respondent's witness, Mr. Burchfield, who is the maintenance superintendent at the No. 3 Mine, indicated he was aware of the purpose of 

the derail although he denied he knew that such parking of cars would 

be a violation. 

Inspector Blanton emphasized that the purpose of this safety 

mechanism was to "throw the car off the track to keep it from going 

down the shaft" (Tr. 15, 21). He gave his opinion that pc:.rking a 

supply car between the derail and the shaft was in disregard of the 

derail altogether. He indicated his belief that cars located inby 

the derail could be accidentally bumped or knocked into the shaft by 

the tractors, trucks, and locomotives which were around it (Tr. 20). 

The inspector did not consider such an occurrence to be a remote 

possibility. 

Inspector Blanton further testified that there was a gate at the 

end of the track in front of the shaft which was the entire·width of 

the shaft (Tr. 17). He could not tell by observation that the track 

was on an uphill incline (Tr. 18). He testified that locomotives 

and diesel-powered tractors pushed the cars and he thought it possible that they could be pushed by manpower. 

1320 
Petitioner's second witness, MSl~ Inspector Clarence E. m1alen, 

testified that he issued the notice of violation while he was making 

a spot inspection on September 13, 1977, at the No. 3 Mine. 4/ He 

had been to the mine at different times before. When he issued this 

notice, he was in the company of Mr. Bobby Taylor, who he identified 

as the safety director at the No. 3 Mine (Tr. 28-29). Inspector 

Whalen was going to go underground to observe the perimeter of the 

shaft. For several minutes, he and Mr. Taylor waited for the return 

to the surface of the cage. While waiting, he looked across the 

shaft and observed the track and car in question (Tr. 29). 

Inspector Whalen knew from his previous inspections at the No. 3 

Mine that there was a derail on this track. Also, from observing the 

position of the flat car, he determined that the car was loaded with 

material and located inby the track (Tr. 29-30, 65). He did not measure the distance, but estimated that the loaded car was within 30 to 

35 feet from the entrance to the shaft. After observing this condition, he issued a notice of violation to Respondent which descibes 

the condition or practice which constitutes the alleged violation as 

follows: 

The operator was not complying with a previously issued 

safeguard (No. 1, H.E.B. 75.1403, 1-9-75) at the entrance 

td the service shaft hoist way-east side -- in that a flat 

car loaded with material was left unattended, without a 

derail, stop block, or dead man that would have prevented 

such flat car from falling into the shaft bottom as the 

service shaft conveyance was in the bottom. 

(Tr. 28, Exh. G-3). 

Inspector 'Whalen told Mr. Taylor that the derail would have to 

be put back in operation. Thereupon, Mr. Taylor notified Mr. James 

Burchfield, Respondent's maintenance supervisor. Mr. Burchfield 

directed some workers to move the loaded car outby the derail. Over 

a 30- to 40-minute period, the workers proceeded with picks and 

shovels to make the derail operative (Tr. 31). 

The inspector testified that the car was left unattended; there 

were no automatic brakes or braking devices on it (Tr. 32). He 

thought the condition was dangerous, stating: 

A runaway car in addition to the car being unattended 

there was a road -- material road -- vehicles of the 

yard travelled between the derail and the entrance to the 

4/ Mr. Whalen has been an MSHA inspector since October 1, 1971. He 

has State of Alabama mine foreman certification and had 16 years' of 

industry experience before joining MSHA. 

1321 
shaft at this particular location there. They could have 

-- hypothetically speaking, anything movable could have 

come along and bumped it. 

(Tr. 32). 

Also, he stated that this service shaft is the only one way out 

of the mine and the substructure on top of the man conveyance would 

not withstand the impact of a falling car or object into it (Tr. 

34-35). 

Inspector Whalen testified that tow motors are used to move 

these supply cars on the track (Tr. 40). He stated that the car he 

had observed was heavy and substantially loaded. He thought that 

perhaps half a dozen men would be necessary to push the car. By 

looking at the track which runs toward the service shaft, he determined that it runs uphill to some degree (Tr. 41). However, the 

inspector discounted this by ieiterating that with motor cars it 

could still be shoved over the hill. 

Inspector Whalen further testified that he was aware of the existence of the safeguard notice issued by Inspector Blanton since the 

MSHA office has a posting board on which, among other things, a~~e 

posted all safeguards which are outstanding at a mine (Tr. 41). 

Although he was aware of the existence of the safeguard notice and 

that the Respondent had been required to install a derail, he testified that he had never read the original safeguard notice before he 

wrote the notice of violation (Tr. 42). 

On cross-examination, this inspector agreed that the derail was 

present, however, he determined that the Respondent was not complying 

with it since the derail was inoperative. He did not know,when he 

wrote the notice of violation, whether the safeguard notice contained 

wording which would prohibit the parking of cars at specific places 

along the track (Tr. 43). . 

Inspector Whalen did not issue a safeguard notice for the condition he had observed, as it was his view that a safeguard notice had 

already been issued for the same track (Tr. 46). Although Inspector 

Whalen observed that the derail was not in operating condition, he 

did not cite Respondent for this fact. Rather, he made a determination that the positioning of a car beyond the derail was in disregard 

of the purpose of that safety device. He thought that the sole purpose of the derail was to prevent runaway cars (Tr. 52-53). It was 

his opinion that if a car was placed inby the derail, there was no 

way that it could be effecting its purpose (Tr. 54). 

Inspector Whalen testified that the car he saw did not have a 

braking system. It was stationary when he made his observation and 

he agreed that nothing was blocking the car. Also, this inspector 

1322 
testified that the car was not spragged and was unattended. He 

defined "spragged" as the process of taking either a metal or wooden 

object and inserting it between the spokes of a moving car. The 

inserted object will then lock the wheel and slide it (Tr. 62). By 

"unattended," he meant that no workers were present at the time he 

made his observation (Tr. 62). This is a different definition than 

that of Mr. Blanton. This inspector thought it was important for a 

person to be present in order to sprag the car. 

Respondent's first witness, Mark P. Hinton, a resident engineer 

at the No. 3 Mine, testified that he and one other person made a 

survey of the track leading from the supply yard to the service shaft. 

Mr. Hinton found the distance from the shaft to the derail to be 

71 feet and 1 inch. The elevation drop between the shaft and the 

point of the derail was 88 feet. He stated that he measu£ed a 

1.23-percent downhill grade away from the shaft. Mr. Hinton thought 

this grade was significant in that cars would not roll up hill with 

ease. He did not consider this to be a steep grade (Tr. 72-74). 

Respondent's second witness was James Burchfield. Mr. Burchfield 

was the maintenance superintendent at Respondent's No. 3 Mine when 

the notice of violation was issued. He testified that Bobby Taylor, 

the safety director, told him of the inspection which Inspector Whalen 

was undertaking and he joined the group when they were investigating 

the derail (Tr. 75). 

Mr. Burchfield described how the derail was inoperative at the 

time of Mr. Whalen's inspection and he estimated that it took the men 

10 to 15 minutes to make the switch operative. Mr. Burchfield said 

that tow motors are used to move the supply cars around. He stated 

that the first 100 feet of the supply yard is not level and there is 

an incline to the shaft. He did not think that there would be any 

runaway cars at this point (Tr. 77, 87). He said that there would 

have to be some sort of vehicle ramming. He explained this by saying 

that someone would have to be pushing another supply car with a tow 

motor before there could be a runaway car. He agreed that it takes 

tremendous force to move such a car, even when empty. Additionally, 

Mr. Burchfield testified that two employees are within 50 to 75 feet 

of the shaft at all times (Tr. 78). 

He showed that they have now moved the derail closer to the shaft 

(Tr. 80). It has been placed 17 to 18 feet from the gate at the shaft 

entrance. The cage is 9 feet, 6 inches and the gate swings out 

roughly 14 feet over the track (Tr. 80). The derail is tied in automatically with the hoist by pneumatic air (Tr. 79(b)). 2/ 

5/ Because there are two page 79's in the transcript, one is designated. 79(a) and the other 79(b). 

1323 
Mr. Burchfield has testified that he was aware of the safeguard 

notice and its wording (Tr. 81). However, he claimed he did not have 

any idea that parking a car between the derail ind the shaft would 

be a violation (Tr, 81), The car so parked was 13 inches high and 

approximately 19 feet long. It was loaded with cinder blocks and was 

clearly visible to those in the supply yard (Tr, 82). Mr. Burchfield 

thought'any ramming would have to be deliberate. Tow motors will 

travel at 5 miles per hour. If such an act were to occur, 

Mr. Burchfield could only foresee danger to the cage and hoist; the 

miners would be inside the mine (Tr, 84), Mr, Burchfield was not 

unaware of the purpose of the derail (Tr. 85). 

DISCUSSION AND CONCLUSIONS 

I, 

The first issue~ as phrased above, is whether 30 CFR 75 .1L}03 

has any application to the surface work areas of an underground mine. 

Respondent argues that Part 75 of Title 30 CFR, which is entitled 11Mandatory Safety Standards-Underground Coal Mines" is applicable 

only to conditions in the underground portion of underground mines. 

It argues that only in a few places do these regulations effect the 

surface operations and that in these it is plainly stated within the 

regulation that its application is to the surface area of the mine 

and that section 75.1403 makes no such statement. Finally, it contends that Part 77 of Title 30 CFR, which covers surface mines and 

surface work areas of underground mines, should properly govern this 

condition which the evidence shows occurred in a surface area. 

MSHA contends that the scope of Part 75, as set forth in 30 CFR 

75.1, is stated as including ''some standards are also applicable 

to surface operations." MSHA makes no attempt to to specify which 

of the standards are so applicable, how this is to be determined 

and, finally, whether the specific standard here involved, 30 CFR 

75,1403, is one that is intended to be applicable to surface areas 

of underground mines. 

A review of the mandatory standards set forth in Part 75 reveals 

that some are made specifically applicable to the surface areas of 

underground mines, For instance, 75,705 states specifically that it 

is applicable "both on the surface and underground.'' This also is a 

statutory provision. · Other standards also mention activity which is 

to be conducted on the surface, such as 75,1200, which relates to the 

keeping of maps; 75.1708, which refers to the fire-proofing of surfacE 

structures and is also a statutory provision; and 75,1808, which 

relates to the maintenance of books and records on the surface. 6/ 

6/ Other sections in Part 75 which encompass surface areas include 

75,300-2, 75.1702, 75.1712, 75.1600 and 75,1806, 

1324 
Thus, it is clearly apparent that certain provisions in Part 75, 

even though it relates primarily to conditions within underground 

mines, also cover some surface conditions relating t6 underground 

mines. Furthermore, some of these are statutory provisions. These 

provisions are applicable to surface areas of underground mines even 

though Part 77 of the standards are specifically mandatory standards 

for surface coal mines and surface work areas of underground coal 

mines. 

The sole remair11.ng question, therefore, on this issue is whether 

75.1403 and its subparts are applicable to the surface areas of 

underground mines. The test that I would apply is either (a) that 

the standard itself expressly states that it is applicable to surface 

areas, or (b) that it is clear from its language that it is applicable 

to both underground and aboveground. As to the former, examples are 

those cited above. The latter would be found mainly in subpart (0) 

which refers to hoisting and mantrips. 

For example, 75. lL~OO in subpart (0) is a statutory provision 

covering hoisting equipment used to transport persons at a coal mine. 

Such hoists, especially when used to transport men into and out.of 

the mines, will come to the surfac2 or may even be controlled from 

the surface. Thus, even though the standard does not expressly refer 

to the surface, it is clear that the surface of the underground mine 

is involved. This also would be true with 75.1402, which relates to 

communications. 

Section 75.1403, referring to "other safeguards," is likewise in 

such a category, at least as it has been interpreted in the subsection's designated criteria. The "other safeguards" are those which 

may be applied on a mine-by-mine basis "to minimize hazards with 

respect to transportation of men and materials." As specifically 

define.cl in the criteria, "other safeguards" may include and do 

include, conditions having to do with hoist-transporting materials, 

automatic elevators, belt conveyors, mantrips, and track taulage 

roads. Some of these may not and probably do not concern the surface 

areas of underground mines. Others, however, do concern such areas 

either specifically or because of their obvious application to the 

surface areas. An example of crit.eria applying to the surface, 

though not specifically so stating, would be 75.1403-11 covering 

safety gates for the entrances to shafts. Others have more express 

application to the surface, such as 75.1403-3(f), which requires 

that an attendant be on duty at the surface where men are being 

hoisted or lowered. Section 75.1403-S(e) which is closely related 

to the subject matter of this case is also in the explicit category. 

It is a criterion which states that "[p]ositive stop blocks or 

derails should be installed on all tracks near the top or at the 

landings of shafts, slopes, and surface inclines." Thus, the scope 

of safeguards, as indicated by the criteria, is sufficiently broad 

to cover stop blocks or derails in surface areas. 

1325 
While I do not hold that 75.1403, which provides for safeguards 

with resp~ct to the transportation of men and materials, can be read 

to mean that a safeguard may be written for any condition at the 

surface of an underground mine, I believe it is clear that it applies 

to at least some surface conditions and specifically, to the condition of installing derails or stop blocks at tracks near the top. 

Accordingly, I hold as to this issue that 75.1403 does have 

application to surface work areas of an underground mine and,in particular, to the condition which is the subject of this proceeding. 

II. 

The second question is whether if 75.1403 applies to surface work 

areas, does the fact that a loaded supply car was parked between the 

derail and the collar of the mine shaft constitute a violation of the 

safeguard notice which requires only that a derail be installed on the 

track leading to the mine shaft? 

This question was raised repeatedly in the proceeding, twice in 

motions for summary judgment, and once in a motion to· dismiss at the 

close of MS'HA's case-in-chief. These motions were all denied. Now 

havin6 had the opportunity to study the issue in light of the fu11 

and complete record, I have reached the conclusion that Respondent's 

position is correct and that the notice of violation should be 

vacated and the petition for civil penalty be dismissed. 

The safeguard notice, as previously noted, issued by Inspector 

Blanton on January 9,- 1975, provided that positive stop blocks or 

derails should be installed on the track near the manshaft. Inspector Blanton appeared to be guided by the specific criteria, 30 CFR 

75.1403-8(e), but he claimed that he had issued the notice on the 

authority of section 314(b) of the Federal Coal Mine Health and Safety 

Act of 1969. A derail was thereafter placed on the track approximately 70 feet from the collar of the shaft and this was approved by 

the inspector for abatement. 

Subsequently, about 2-1/2 years later, another inspector, 

Clarence E. Whalen, inspected the same site and issued a notice of 

viol~tion for failure to comply with the safeguard notice, specifically because a flat car was left unattended without a derail, stop 

block or dead man that would have prevented such car· from falling 

into the shaft bottom. 

Among the facts as disclosed and not in serious dispute are 

that the derail, which was originally installed to abate the safeguard notice, was still in place at the time of the second inspection, that it was inoperative because it was filled with dirt, and 

that the inspector did not cite the ineffective condition as a violation of the safeguard notice. The derail in question was 71 feet 

1326 
from the collar of the shaft and was in the location which had been 

approved by th•~ first inspector, Mr. Blanton. The latter. had not only 

approved of tt· · location, but he believed it to be correct on the 

theory that if • :·e derail ·was too close to the shaft and a car was 

bumped, it would go down into the shaft (Tr. 16, 22). Mr. Whalen, the 

second inspector who issued the notice of violation, disagreed with 

Mr. Blanton on this matter of the distance. He testified that had he 

issued the safeguard notice, he would have required the operator to 

put the derail as close to the shaft as possible (Tr. 50). 

This matter of disagreement over the location of the derail 1s 

an important consideration in the decision in this case. It shows, I 

believe, that Inspector Whalen was not particu~arly concerned with 

whether the derail, as originally required, was in place and maintained; rather, his concern was with an unattended car standing on the 

track without the protection of a derail between it and the shaft. As 

his testimony so clearly indicates, he believed the latter to be the 

purpose of the safeguard notice. The difficulty is, as I see it, that 

the safeguard notice does not cove~ the condition of an unattended 

car which is not protected from rolling by either stop blocks or 

derails. It does not in fact state the purpose which Inspector ·whalen 

read into it. 21 

By way of background, it is helpful to consider that notices to 

provide safeguards under the Mine Act are procedurally unusual. I am 

not aware that the Board of Mine Operations Appeals or the Commission 

has dealt with this subject in any depth, if at all. Prior rulings by 

other administrative law judges appear to point out the uncertainties 

in this area leading to apparent inconsistent results. Compare the 

decision of Judge Richard Steffey in Oakwood Red Ash CoalCOrporation, 

Docket No. NORT 75-261-P (January 26, 1976), with the decision of 

Judge George Koutras in Jim Walter Resources, Inc., Docket No. 

BARB 77-103-P (July 5, 1977). 

The statutory provision has been promulgated into 30 CFR 75.1403. 

This provision permit·s an inspector to write what is in effect a 

mandatory standard with 'respect to transportation applicable only to 

a particular mine. Under section 75.1403-1, the general criteria for 

7/ It appears to me that the inspector, rather than issuing a notice 

of violation of a prior safeguard notice, had other.options. He could 

have either (a) issued another safeguard notice specifically covering 

the condition found to be a hazard, or (b) issued a notice of violation under 30 CFR 77.1605(p) which also appears to be applicable to 

this condition. Part 77 of the standards cover surface mines and 

surface areas of underground mines. Section 77.1605(p) provides that 

''[p]osi: ~ve-acting stop-blocks, derail devices, track skates, or other 

adequate means shall be installed wherever necessary to protect persons from runaway or moving railroad equipment." 

1327 
safeguard~ are set forth in subsection (a). This subsection states 

that 75.1403-2 through 11 set out the criteria by which an authorized 

representative of the Secretary will be guided in requiring safeguards 

and it also mentions that other safeguards may be required. Subsection (b) of 75 .1403-1 details the procedure to be followed in 

enforcing this mandatory standard. 

Because a safeguard notice, which for the particular mine in 

effect becomes a mandatory standard, it seems obvious that it should 

be written precisely and exactly so that there will be no question 

about the performance required by the operator. In this case, precision does not seem to be a problem except as. the second inspector 

construed the notice. On its face, the notice clearly requires what 

the first inspector intended, that is) a derail or stop block be 

installed "near" the manshaft. 11 Near 11 is a relative term and the 

inspector by approving a derail at 71 feet, in effect, construed his 

own notice as requiring a derail at that distance. A derail was so 

installed. However, the second inspector now has interpreted the 

safeguard notice as encompassing a condition not expressly set forth 

in the terms of such notice, but included within what he deemed to 

be the purpose. 

Part of the difficulty is that the first inspector apparently 

failed to take into account the possibility that a car could be placed 

between the derail and the shaft collar because of the large distance 

permitted between the derail and the shaft. It seems fairly clear 

that the purpose of the derail was to prevent a car from accidentally 

falling into the shaft and Respondent's maintenance superintendent 

recognized that to be the purpose. The safeguard notice, however, by 

its terms, does not apply to stop blocks or derails for cars. It 

applie.s only to a .derail for the track, which derail was installed 

and approved and further was in place on the day the notice of violation was written. Inspector Blanton, had he so intended, could have 

.originally written or have amended his notice to provide a safeguard 

not permitting a car between the derail and the shaft collar. The 

safeguard notice was not so written, however, and therefore lacks 

sufficient specificity to cover the condition which the subsequent 

inspector found to be a hazard. It is not enough, it seems to me 

that the purpose was violated if that purpose is not expressly stated 

in the notice. 8/ 

8/ This conclusion is not fully consistent with the deterrninatior. 

;ade in my ruling on the second motion for summary judgment issued 

April 20, 1979. My final decision is made with the benefit of a full 

record. To the extent that the summary decision is inconsistent, it 

is hereby reversed. 

1328 
Accordingly, I find that the Respondent was not. in violation of 

the safeguard notice according to the specific terms of that notice 

and that the notice of violation should be vacated and this proceeding dismissed. 

There is evidence that the derail was, in fact, not maintained 

in an operable-·condition, but that circumstance was not included 

within the charge in the notice of violation. 

Finally, it should be noted that changes have been made to correct the condition so that the same hazard cannot occur in the future. 

The derail has been placed at the approval of the second inspector, 

Mr. Whalen, 17 to 18 feet from the shaft collar and it is tied in 

some automatic way with the hoist by pneumatic air. It is impossible 

now to get a car between the derail and the gate at the shaft collar 

( Tr • 7 9 ( b ) ) • 

ORDER 

It is ORDERED that the notice of violation issued herein, No. 1 

CEW, September 13, 1977, is hereby VACATED and this proceeding is 

hereby DISMISSED. 

Distribution: 

~-;.~ . ,~ ,./'.h ~ ~ ,. )/\_ g.'/l~ /'t:Ut__.1-te:..~ . L.,...-/ p;f:~t-"'pt,,/<!.,.{(./.4,t ti~ - /vl · ~ · 

Franklin P. Michels 

Administrative Law Judge 

Leo J. McGinn, Esq., MSHA Trials Branch, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

VA 22203 

Robert W. Pollard, Esq., Jim Walter Resources, Inc., P.O. 

Box 10406, Birmingham, AL 35202 (Certified Mail) 

1329 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD. 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

~c· ".JOLIDATION COAL COMPANY, 

Respondent 

S··p 4 \'1&j ' t. 

Civil Penalty Proceeding 

Docket No. PENN 79-11 

A/O No. 36-00966-03017 

Montour No. 4 Mine 

DECISION APPROVING WITHDRAWAL 

On 'July 16, 1979, the Solicitor filed a motion to approve a 

settlement of $60 for the only citation in this petition. The 

citation, which was issued for failure to wear face shields or 

goggles, was originally assessed at $140. In his motion, the 

Solicitor advised he would likely be unable to prove a violation 

since the operator has an enforced eye protection program. He 

then. cited North American Coal r ~poration, 3 IBMA 93. 

On August 6, 1979, I disapproved the proposed settlement. 

Based upon the Solicitor's representations, I concluded a violation. 

did not appear to exist and that the petition should be withdrawn. 

The parties were then ordered to submit additional statements on 

or before August 20, 1979. 

The Solicitor has now filed· a motion to withdraw the petition 

for assessment of a civil penalty. In his moti~n, the Solicitor 

advises the following: 

A review of the evidence has revealed that Respondent 

has an enforced eye protection program at the mine which 

is aimed at insuring that its miners wear eye protection 

at all times as required by the Act. According to North 

American Coal Corporation, 3 IBMA 93, at 107, no violation 

of 30 CFR 75.1720(a) exists where an operator has established a safety system designed to assure that emp.loyees 

wear safety goggles on appropriate occasions and enforces 

the system with due diligence. If the failure to wear 

glasses is entirely the result of his or her own disobedience or negligence rather than the operator's 

failure to require that the glasses be worn, no violation 

has occurred. 
The Solicitor's representations are well taken. Accordingly, 

the Solicitor's motion to withdraw the petition for assessment of a 

civil penalty is hereby APPROVED. 

Assistant Chief Administrative Law Judge 

Distribution: 

David E. Street, Esq., Office of the Solicitor, U.S. Department of 

Labor, Rm. 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

1331 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG tNIA 22203 

Sf.:? 5 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HECLA MINING COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-91-PM 

A.O. No. 10-00088-05001 

Lucky Friday 

DECISION 

Appearances: Marshall P. Salzman, Trial Attqrney, Office of 

the Solicitor, U.S. Department of Labor, San 

Francisco, California, for the petitioner; 

Fred M. Gibler, Esquire, Kellogg, Idaho, for 

the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding was one of two docketed cases heard in Wallace,. 

Idaho on July 12, 1979. The case was initiated by the petitioner on 

November 28, 1978, when it 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) seeking civil penalty assessments for five alleged violation~ of certain mandatory safety standards 

found in Part 57, Title 30, Code of Federal Regulations. Respondent 

filed a timely answer contesting the petition and the case was docketed 

for a hearing on the merits. However, when the docket was called 

the parties advised that they had reached certain stipulations and 

agreements and had reached a tentative settlement .as to the civil 

penalties which they believe should be assessed in this proceeding. 

Petitioner was afforded an opportunity to present arguments in support 

of its proposed settlement for my consideration pursuant to Commission 

Rule 29 CFR 2700.30. 

Discussion 

The parties stipulated to the Commission's jurisdiction, and agreed 

that the respondent is a large mine operator, has no prior history 
of assessed violations, and that the imposition of civil penalties would 

not impair its ability to remain in business (Tr. 3-4). 

The petition for assessment of. civil penalties filed in this case 

by the petitioner pertains to the following citations and proposed 

penalties: 

Citation No. 

350613 

348401 

348402 

350614 

350615 

Date 

3/28/78 

3/30/78 

4/5/78 

4/6/78 

4/11/78 

30 CFR Section Assessment 

57.3-22 $255.00 

57.3-22 $170.00 

57.16-3 $180.00 

57.3-22 $150.00 

57.6-5 $370.00 

During the hearing, petitioner's counsel indicated that the 

proposed assessments shown above which appeared in the petition 

filed on November 29, 1978, does not reflect the results of an assessment conference which took place prior to the filing of the petition 

but after the initial assessments (tr. 5). As a result of that 

conference the civil penalties reflected in the petition were reduced 

by the assessments office as follows: 

Citation No. 

350613 

348401 

348402 

350614 

350615 

Adjusted Assessments 

$ 90.00 

$106.00 

$130.00 

$ 98.00 

$122.00 

Petitioner argues that Citations 350613 and 350614 sho~ld be 

further reduced to $45.00 and $50.00 respectively. In support of 

this, counsel argues that his investigation indicates that the 

assessment off ice placed significant emphasis on the element of negligence 

in reaching the initial assessments, but that in fact the 

circumstances surrounding the citations in question indicates that 

the degree of knowledge on respondent's part at the time the citations 

issued was significantly lower than that assumed by the assessment 

office, and that the citations were timely abated (Tr. 6). With 

respect to Citations 348402 and 350615, counsel indicated that the 

.adjusted assessments made after the conference are appropriate and that 

respondent had agreed to make payment in the full adjusted amounts 

(Tr. 6). As for citation 348401, counsel asserted that upon further 

investigation of the circumstances surrounding that citation 

petitioner cannot sustain its burden of proof and therefore moved 

for leave to dismiss the citation (Tr. 5-6). 

Citations 350613 and 350614 both involve violations of the 

provisions of 30 CFR 57.3-22 which requires pre-shift and on-shift 

examinations of working places and ground conditions to insure that 

1333 
adequate testing and ground control practices are followed and that 

loose ground be either removed or adequately supported. A review 

of the answer and arguments filed by the respondent in defense of 

these two citations reflects that the miners working in the areas 

where the conditions were cited were aware of the loose ground and were 

in the process of removing or bolting the areas cited so as to insure 

the safety of miners. The on'""coming shifts had apparently conducted 

the required pre-shift examinations, discovered the conditions, and 

were in the process of taking corrective action. In the circumstances, 

I am convinced that these facts obviously influenced petitioner's 

counsel in his case preparation and evaluation of the circumstances 

which prevailed on the day in question, particularly with respect 

to the question of negligence. Accordingly, the proposed settlements 

were approved from the bench (tr. 7), and that approval is herein 

reaffirmed. 

With regard to citations 348402 and 350615, the arguments presented 

on the record convinced me that the proposed settlements should be 

approved (Tr. 7), and that conclusion and finding on my part is also 

herein reaffirmed. As for the remaining citation 348401, petitioner's 

motion to dismiss was granted (Tr. 8). In effect, petitioner 

sought leave to withdraw its petition for assessment of civil penalty 

as to that citation, and the granting of the motion to dismiss is 

likewise reaffirmed. 

In summary, after full and careful evaluation of all of the 

circumstances surrounding the citations at issue in these proceedings, 

including the criteria set forth in Section llO(i) of the Act, I 

am of the view that the settlements and disposition made in these 

proceedings pursuant to 29 CFR 2700.30 will effecuate the deterrent 

purpose of civil penalties for violations such as those alleged in the 

instant citations. 

Order 

Respondent is ordered to pay civil penalties totaling $342.00 

in satisfaction of the settled citations within thirty (30) days 

of the date of this decision and order. It is further ordered that 

citation 348401 be dismissed. 

hutt.~ Administrative Law Judge 

1334 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 5 !979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROBERT L. HELMS CONSTRUCTION 

& DEVELOPMENT CO., 

Respondent 

Docket No, DENV 79-322-PM 

A.O. No. 26-01452-05001 

Settlemeyer Pit 

DECISION AND ORDER APPROVING SETTLEMENT 

This proceeding concerns a petition for assessment of civil 

penalty filed by the petitioner on February 8, 1979, pursuant to 

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

30 U.S.C. 820(a), seeking civil penalty assessments for 19 alleged 

violations of the Act and implementing mine safety and health standards. 

Respondent filed timely answers contesting the citations and 

alleged violations and by notice issued April 13, 1979, the matter. 

was scheduled for hearing in Reno, Nevada, August 8, 1979. However, 

in view of a proposed settlement by the parties, the hearing was 

cancelled and by motion filed August 17, 1979, petitioner has presented 

arguments in support of the proposed settlement. 

The citations, and the proposed settlement amounts are as 

follows: 

Citation No. Date 30 CFR Section Assessment Settlement 

371721 4/13/78 56.26-1 $26.00 $23.00 

371722 4/13/78 56.4-2 $44.00 $39.00 

371723 4/13/78 56.14-1 $72.00 $64.00 

371725 4/13/78 56.14-1 $90.00 $72.00 

371726 4/13/78 56.14-1 $90.00 $72.00 

371727 4/13/78 56.14-1 $90.00 $72.00 

371728 4/13/78 56.14-1 $66.00 $52.00 

371729 4/13/78 56.14-1 $66.00 $52.00 

371730 4/13/78 56.14-1 $90.00 $72.00 

371731 4/13/78 56.14-1 $90.00 $72.00 

371732 4/13/78 56.14-1 $66.00 $52.00 

37173.3 4/18/78 56.5-50A $52.00 $46.00 

371734 4/18/78 56.5-50B $48.00 $43.00 

371735 4/18/78 56.5-50A $52.00 $46.00 

371736 4/18/78 56.5-50B $66.00 $52.00 

371737 4/20/78 56.9-88 $66.00 $52.00 

371738 5/4/78 56.9-88 $32.00 $28.00 

371739 6/28/78 56.9-87 $40.00 $36.00 

1335 
With respect to Citation No. 371724, April 13, 1978, citing 

a violation· of 30 CFR 56.14-1, petitioner moves to dismiss without 

prejudice and in support of its motion asserts that the citation alleges 

a condition similar to that found in MSHA v. Massey Sand and Rock 

Company, Docket No. DENV 78-575-PM. Petitioner s~ates it is 

appealing that decision and if it is affirmed by the Commission 

the citation will remain withdrawn. If not, petitioner proposes 

to reassess the civil penalty. 

In support of its motion to approve the proposed settlement 

petitioner has submitted information concerning those factors required 

to be taken into account under section llO(i) of the Act. That 

information reflects that respondent operates a small-to-medium 

size metal and nonmetal mine, has no prior history of aasessed 

violations, and that payment of the proposed civil penalties will not 

impair its ability to continue in business. Further, petitioner asserts 

that upon investigation it would appear that the evidence which would 

be produced at any hearing on the merits would establish less gravity 

and negligence than was assessed initially by the petitioner's assessments 

office, and that respondent exercised complete and prompt abatement 

of all of the conditions cited. Petitioner therefore believes that 

the proposed settlement does not shock the conscience, is within the 

bounds of reason, and will clearly effectuate the deterrent purpose 

of civil penalties for violations such as those alleged in the 

instant citations. 

I have carefully reviewed all of the pleadings filed in this 

proceeding, includ-ing copies of the citations, abatements, inspector's 

statements, and upon consideration of the arguments presented by the 

petitioner in support of the proposed settlement and disposition of 

this matter I conclude and find that the motion should be granted. 

Accordingly, pursuant to Commission Rule 29 CFR 2700.30, settlement 

is approved. 

Order 

With regard to petitioner's motion to dismiss Citation No. 

371724 without prejudice, I take note of the fact that on July 27, 

1979, the Commission denied petitioner's petition for discretionary 

review of my decision in Massey Sand and Rock Company. Accordingly, 

petitioner's motion to dismiss the citation is granted and the 

citation is dismissed. 

Respondent is ordered to pay civil penalties totaling $945.00 

in satisfaction of the cited violations within thirty (30) days 

of the date of this decision and order. Upon receipt of payment, 

this proceeding is dismissed. 

Administrative Law Judge 

1336. 
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. 

CO~STAL STATES ENERGY CO., 

Respondent 

SEP 5 ~979 

Civil Penalty Proceeding 

Docket No. DENV 79-88-P 

A.O. No •. 42-00089-03004 

Southern Utah Fuel Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

Statement of the Case 

This proceeding concerns a petition for assessment of civil 

penalty filed by the petitioner on November 29, 1978, pursuant to 

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

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

of the provisions of 30 CFR 77.130l(c), cited in Citation No. 245262 

on April 5, 1978, for which petitioner seeks a civil penalty 

assessment in the amount of $305.00. Respondent filed an answer 

denying the fact of violation and contending that the proposed 

assessment was excessive. Respondent requested ·a hearing on the 

petition, and by notice of hearing issued April 13, 1979, the 

matter was docketed for hearing in Salt Lake City, Utah, July 20, 

1979. Subsequently, on June 21, 1979, petitioner's counsel, James 

H. Barkley, telephonically advised my office that the parties had 

reached a tentative settlement of the matter, and as a result of that 

call the hearing was subsequently cancelled for the purpose of 

permitting the parties an opportunity to file the proposed settlement 

for my review and possible approval pur·suant to Commission Rule 29 

CFR 2700.27(d), now 29 CFR 2700.30. In addition, Counsel Barkley 

was afforded an opportunity at the same time to enter his appearance 

in the matter, and this was done on July 2, 1979. 

On July 6, 1979, the parties filed a joint motion and stipulation 

for approval of a proposed settlement whereby respondent agrees to 

pay a civil penalty in the amount of $157.50 for citation 245262. 

In support of the motion, the parties assert that the proposed 

settlement takes into account the following statutory factors set 

out in Section llO(i) of the Act: · 

1337 
History - In the previous 24 months respondent was inspected 

a total of 280 days and has received 224 assessed violations. 

Size - Respondent operates a coal mine which mines approximately 

5,000 tons of coal daily and employees [sic]~approximately 146 

employees. 

Ability to continue in business - Payment of the proposed 

penalty will not impair the respondent's ability to continue 

in business. 

Good faith, negligence and gravity - See the inspector's 

statement Exhibit A attached hereto, which reflects the testimony 

of the inspector if he were to testify. Additionally, the 

inspector would testify that the condition was corrected within 

·the time specified for abatement. 

Such amended proposed penalty .also takes into account the 

uncertainties of litigation. 

Discussion 

Commission Rule 2700.30, 29 CFR 2700.30, concerns the manner 

in which proposed settlements are to be adjudicated, and the rule 

states in pertinent part: 

(b) Contents of settlement. A proposal that the 

Connnission approve a penalty settlement shall include 

the following information for each violation involved: 

(1) the amount of the penalty proposed by the Office of 

Assessments of the Mine Safety and Health Administration; 

(2) the amount of the penalty proposed by the parties to 

be approved; and (3) facts in support of the appropriateness of the penalty proposed by the parties. 

(c) Order approvi11g settlement. Any order by the 

Judge approving a proposed settlement shall be fully supported by the record. In this regard, due consideration, 

and discussion thereof, shall be given to the six statutory 

criteria set forth in section llO(i) of the Act. Such 

order shall become the final decision of the Commission 40 

days after approval unless the Commission has directed that 

such approval be reviewed. (Emphasis added.) 

After full review and consideration of the arguments advanced 

by the parties in support of their proposed settlement, including 

the pleadings filed in this case, I conclude and find that the motion 

should be granted and that the settlement should be approved. The 

condition cited indicates that a surf ace metal detonator magazine 

1338 
was not constructed in accordance with the requirements of section 

77.130l(c) in ·that several nails and bolts were exposed on the 

inside of the ungrounded detonator magazine in question and that 

screens were not provided over the ventilation openings. Among 

other things, subsection (c) requires that magaziues other than box 

~be grounded and provided with screens. Abatement was achieved 

through the construction of a new detonator storage magazine. Although 

not specifically and fully articulated by the parties as part of 

their arguments in support of the proposed settlement, I take 

particular note of the fact that respondent's .answer to the petition 

raises a viable defense to the alleged violation in that respondent 

asserts that mandatory standard 77.130l(c) set forth certain 

requirements for "magazines other than box typ~", whereas the 

explosives magazine described in the citation was a box type magazine. 

I assume that this defense advanced by the respondent is the basis 

for the "uncertainties of litigation" statement made by the parties 

as an additional reason for the proposed settlement. Coupled with 

the fact that the petitioner believes the condition cited was abated 

in good faith, I cannot conclude that the proposed settlement does 

not comport with the intent and purposes of the Act. Accordingly, 

pursuant to 29 CFR 2700.30, settlement is approved. 

Order 

Respondent is ordered to pay a civil penalty in the amount of 

$157.50 in satisfaction of citation 245262 within thirty (30) days 

of the date of this decision and order. Upon receipt of payment, 

this matter is dismissed. 

/ f/lrte ~-?!/£ ~ Koff/Js 1~~ Administrative Law Judge 

Distribution: 

James H. Barkley, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1585 Federal Building, 1961 Stout St., Denver, CO 

80294 (Certified Mail) 

Clayton J. Parr, Esq., 1800 Beneficial Life Tower, 26 South 

State St., Salt Lake City, UT 84111 (Certified Mail) 

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department 

of Labor, 1585 · Federal Office Building, 1961 Stout Street, 

Denver, CO .. 80294 (Certified Mail) 

1339 
flEDE~AL MINE s.A?ETY AND MEt.u.:rH t~EViEVi/ COMf'tiHSS~ON OFFICE OF ADiVllNISTRATIVE. LAW JUDGES· 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

SEP 7 191S 

Civil Penalty Proceeding 

Docket No. PITT 79-191-P 

A/O No. 36-06133-03008 

Westland No. 2 Mine 

DECISION APPROVING SETTLEMENTS 

ORDER TO PAY 

On July 2, 1979, the Solicitor filed a motion to approve settlements for the three violations in this proceeding. Two of the citations 

were issued for inadequate roof support and were assessed at $106 and 

$122. The recommended settlements were for $72 and $98. The Solicitor 

advised the reductions were warranted by the operator's good faith 

abatement. The third citation was issued for failure to wear proper 

eye protection and was assessed at $60. The recommended settlement 

was $38. The Solicitor advised this reduction was warranted because 

the operator's negligence was like that found in North American Coal 

Corporation, 3 IBMA 93 (1974). The Solicitor further advised that the 

mine.r had received a disciplinary slip from the operator. 

On August 6, 1979, I disapproved the proposed settlements. I 

noted then that the amounts originally assessed for the roof control 

violations were the minimum that could be assessed under the circumstances, and that rapid abatement could not justify any further 

reductions. In reference to the proposed settlement for the eye 

protection violation, I noted the Solicitor's citation of North 

American appeared inapposite, since the citation there was vacated. 

In view of these findings, I ordered the parties to submit additional 

statements on or before August 20, 1979. 

The Solicitor has now filed another motion to approve settlements 

for these violations. In his motion, the Solicitor advises the 

following: 

1. The attorney for the Secretary and the respondent's 

attorney Michel Nardi have discussed the alleged violations 

and the six statutory criteria stated in Section 110 of the 

Federal Mine Safety and Health Act of 1977. 

1340 
2. Pursuant to those discussions, an agreed settlement 

has been reached between the parties in the amount of $228.00. 

The original assessment for the alleged violations was $288.00. 

3. A reduction from the original assessment is 

warranted in light of the following circumstances. 

The parties, pursuant to the Disapproval of Settlement 

of August 6, 1979, have again discussed the facts and 

circumstances surrounding these two violations and have 

concluded as follows: 

a. Citation No. 231524 was issued for a violation 

of the operator's roof control plan (30 CFR 75.200). The 

posts were not installed on four foot centers and the width 

of this intersection was therefor~ not in compliance with 

the approved roof control plan. The originally assessed 

penalty of $106 accurately reflects the operator's negligence and the gravity of this violation and should therefore 

be approved. 

b. Citation No. 231525 was also issued when an 

inspector observed that the approved roof control plan 

was not being followed. Here, the total width of an 

intersection was 59 1/2 feet as opposed to the 58 foot 

distancing required by the roof control plan. The 

originally assessed penalty of $122 accurately reflects 

the operator's negligence and the gravity of this 

violation of 30 CFR 75.200 and should therefore be 

approved. 

c. Citation No. 231527 was issued when an inspector 

observed a miner travelling in an open type locomotive 

without wearing eye protection. This violation of 

30 CFR 75.1720(a) was originally assessed at $60.00. 

Here, the miner involved was issued a disciplinary 

siip for failing to wear eye protection as required by 

the operator. These circumstances closely resemble those 

found in North American Coal Company, 3 IBMA 93 (1974) 

and therefore, no penalty should be assessed here. 

I accept the Solicitor's representations. Accordingly, I conclude 

the recommended settlements are consistent with and will effectuate 

the purposes of the Act. The recommended settlements are therefore, 

approved. 

1341 
ORDER 

The operator, having already paid $206, is ORDERED to pay an 

additional $22 within 30 days from the date of this decision. · 

(--------... ........ 

. \ ..) r'\ ''-..(''\.,"'-

.~\ \1 '\ \ n (~- G_i_,J"'---- \ ., ~--01...v-·v--- Paul Merlin --

Assistant Chief Administrative Law Judge 

Distribution: 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of 

Labor, Rm. 14480-Gateway Building, 3535 Market Street, 

Philadelp~ia, PA 19104 (Certified Mail) 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

1342 
FEDERAL iViH-41E SAFETY ANO HEAt"fH REVIEW COMWHSSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

SEP 17 1979 

Civil Penalty Proceeding 

Docket No. WEVA 79-11 

A/O No. 46-01968-03024 

Blacksville No. 2 Mine 

DECISION APPROVING SETTLEMENTS 

ORDER TO PAY 

The Solicitor advises that he and the attorney for the operator 

have discussed the alleged violations in the above-captioned proceedings. Pursuant to such discussion, the Solicitor has filed a 

motion to approve settlements aereed to by the parties. 

Citation No. 260067 was issued for failure to provide a fire 

extinguisher at a greasing station. This violation of 30 CFR 

75.1100 was originally assessed a.t $180. The recommended settlement 

is $130. The Solicitor advises the reduction is warranted because 

the cited standard is not explicit in its requirement for locating 

fire-extinguishers at greasing stations, and because the Respondent 

had no actual knowledge of such a requirement. The Solicitor further 

advises the Respondent believe~ adequate protection for the area was 

provided by the presence of two nearby fire extinguishers at a 

dumping station and at an oil breaker. I accept the Solicitor's 

representations. Accordingly, this recommended settlement is hereby 

approved. 

Citation No. 261295 was issued for failure to support a power wire 

on well insulated J-hooks. The recommended settlement for this violation of 30 CFR 75.516-1 is for the assessed amount of $160. The 

Solicitor simply advises the penalty for this citation is unaffected 

by the settlement motion. This does not provide a sufficient basis 

for approval of the recommended settlement, since proceedings before 

the Commission are de novo. Such a statement will not be acceptable 

in the future. Rather than disapprove this settlement however, I 

·have reviewed the citation, the assessment sheet, and the attached 

inspector's statement. Based upon my own review of the violation, I 

conclude the recommended settlement is consistent with and will 

effectuate.the purposes of the Act.· The recommended settlement is 

therefore, approved. 

1343 
ORDER 

The operator is ORDERED to pay $290 within 30 days from the date 

of this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribut.ion: 

David E. Street, Esq., Office of the 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) 

1344 
FIEDERAL MINIE SAFETY AND MiEAl"fH RIEVIEW COMMESSiON 

OFFICE Of ADMINISIRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

SEP t 7 1979 

Civil Penalty Proceeding 

Docket No. PENN 79-10 

A/O No. 36-03298-03006 

Laurel Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

The Solicitor has filed motions to approve a settlement in the 

above-captioned proceeding. 

The only violation in this petition was issued for failure to 

maintain average concentrations of respirable dust at or below 

2 milligrams of respirable dust per cubic meter of air. This violation 

of 30 CFR 71.100 was originally assessed at $325. The Solicitor 

initially filed a motion recommending a settlement of $195. In a 

telephone conversation with counsel, I indicated the recommended 

settlement would not be ~cceptable. The Solicitor now has filed 

an amended motion recommending a settlement of $225. The reasons 

for this reduction were set out in the initial motion to approve 

settlement. In the initial motion, the Solicitor advised the 

following: 

A reduction from the original assessment is warranted 

under the circumstances of this case. The citation involves a violation of 30 CFR 71.100 for ·the operator's 

failure to provide respirable dust samples within the 

permissible limits. Thereafter, a 104(b) order was 

issued for the operator's failure to abate the citation 

within a reasonable amount of time. Further investigation 

into the factors underlying issuance of the citation and 

order disclosed that the operator's negligence was less 

than originally c-'_culated in the proposed assessment. 

In addition, the operator demonstrated more good faith 

than originally allocated. Although it is true that 

the operator did not reduce the respirable dust in the 

atmosphere to permissible limits within the time specified 

in the original citation, the operator had taken steps to 

at.tempt to abate the condition. In particular, the 

operator had attempted to change the heating system and 

1345 
had ordered new electric heaters in order to alleviate 

the problem. After the 104(b) order was issued, it was 

found that the heaters were not the source of the 

respirable dust problem but rather, the ventilation 

needed to be altered. 

I accept the Solicitor's representations. Accordingly, I conclude 

the recommended settlement is consistent with and will effectuate the 

purposes of the Act. The recommended settlement is therefore, approved. 

ORDER 

The operator is ORDERED to pay $225 within 30 days from the date 

of this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Barbara K. Kaufmann, Esq., Office of the Regional Solicitor, 

U.S. Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

1346 
FEDERAL MINE SAFETY P.ND HEALTH RIEVIEW COMMESS30N 

OFFICE OF ADMli\llSTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

SEP 1 7 1979 

Civil Penalty Proceeding 

Docket No. PENN 79-2 

A/O No. 36-00965-03024 

Westland Mine 

DECISION APPROVING SETTLEMENTS 

ORDER TO PAY 

On July 2, 1979, the Solicitor filed a motion to approve settlements 

in the above-captioned proceeding. In this motion, the Solicitor moved 

to vacate Citation No. 231502 which was issued for failure to maintain 

adequate roof support, relying upon the decision of the Interior Board 

of Mine Operations Appeals in Plateau Mining Company, 2 IBMA 303. 

On August 13, 1979, I disapproved the recommended settlement, 

stating that no authority had extended the decision in Plateau Mining 

to other mandatory standards, particularly standards involving roofs 

which are the major cause of serious injury and death in the mines. 

-In the absence of any such precedent and because inadequately supported 

roof could present a very real danger even when dangered off, I concluded approval could not be granted on the basis of a few brief representations in a motion to approve settlements. However, I did note 

that the factors described by the Solicitor could be considered as 

affecting gravity. 

The Solicitor has now filed another motion to approve settlements. 

In her motion, the Solicitor advises the following: 

A reduction from the original assessment is warranted 

for citation number 231502. As stated in the Solicitor's 

previously submitted motion, the citation alleges a 

violation of 30 CFR 75.200 in that eight bolts above a 

track haulage were broken or missing in a 100 foot 

expanse of roadway. Important to consider in reducing 

the penalty allocation is the fact that the area had been 

dangered off by management and was under repair when the 

citation was issued. In addition, this area was not 

regularly travelled and the roof was in good condition. 

Th;i.s' information· effects the negligence and gravity 

1347 
factors underlying the penalty assessment. The proposed 

assessment gave 12 negligence and 10 gravity points. 

Considering the above, imposition of only 9 negligence 

and 7 gravity points is reasonable. The revised penalty 

point total is 44. Application of the penalty conversion 

table results in a $240.00 penalty assessment. 

The Solicitor has also recommended settlements for the other two 

citations in this petition. In her original motion, she advised the 

following: 

. CITATION NO. 231882; 30 CFR 75.516-2(c): This 

citation was written as two telephone conductor wires 

were without additional insulation and were in contact 

with energized power wires and crossing under a high 

voltage cable. The $180.00 assessment for this cit.ation 

should be reduced to $50.00. This reduction is warranted 

under the circumstances as further investigation has 

rev~aled that the telephone wires in question were not 

energized at the time. The wires were dead and not 

connected to any telephone. Therefore, no power was 

going through the telephone conductor wires and no 

fire hazard existed. This condition had been previously 

cited on October 18, 1978 and abated by disconnecting 

the power. Such abatement was approved. The date this 

citation was written October 30, 1978, the wires were 

still without power. Accordingly, such a reduction 

accurately reflects the negligence of the operator and 

the probability of an injury occurring under the 

circumstances. 

CITATION NO. 231893; 30 CFR 75.17'04: This citation 

alleges that a return escapeway was in an unsafe condition 

because a 25 foot roof fall had occurred and loose 

unsupported roof existed in the area. It is true that a 

violation exists in this case. However, this roof fall 

occurred after the weekly examination of the return 

escapeway had been made. In fact, on just the day· 

previous to issuance of this citation, the area had been 

walked and no roof fall had occurred. Under the circumstances, the operator's negligence is minimal. Although 

a violation technically existed, the negligence factors 

greatly in the imposition of the $195.00 assessment. 

$150.00 is more appropriate. 

1348 
In her supplemental motion, the Solicitor added the following: 

The reasons given by the Secretary for reducing 

the penalty for citation number 231882 should be 

clarified as follows. In an inspection conducted 

prior to the one giving rise to the instant citation, 

a citation was issued because the same telephone 

wires involved in this citation were found not to be 

insulated. The abatement method approved in that 

case was deenergization of the telephone wires. In 

this case, another inspector seeing the uninsulated, 

deenergized wires, issued the citation involved herein. 

For these reasons, the operator's negligence is 

minimal. This criteria has been given considerable 

weight in reducing the proposed penalty amount from 

$180.00 to $50.00. 

I accept the Solicitor's representations. Accordingly, I conclude 

the recommended settlements are consistent with and will effectuate the 

purposes of the Act. The recommended settlements are therefore, 

approved. 

ORDER 

The operator is ORDERED to pay $440 within 30 days from the date 

of this decision. 

~~\~n· Paul 

Assistant 

Merlin 

Chief 

~ Administrative Law Judge 

Distribution: 

Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

1349 
FEDERAL MBNE SAFETY AND ~HEALYH REViEW COf!iHVHSSH.H\l 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

40i5 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 1 8 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTit 

ADMINISTRATIDN (MSHA), 

Petitioner 

v. 

THACKER COAL COMPANY,_ 

Respondent 

Civil Penalty Proceeding 

Docket No. PIKE 78-348-P 

Assessment Control 

No. 15-02%0-02004 

No. 1 Mine_ 

. DEFAULT.DECISION 

Appearances:: Edward H.. Fitch_ IV, Esq. , Office of the· Solicitor, 

Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Before Administrative Law Judge Steffey 

Wh.en the hearing in the above-entitled proceeding was convened in 

Pikeville, Kentucky, on July 26, 1979, pursuant to a written notice of 

hearing dated June 14, 1979, and served on respondent's representative 

on July 17, 1979, by a Federal coal-mine inspector, counsel for the Mine 

Safety and Health Administration entered his appearance, but no one 

appeared at the hearing to represent respondent. ·The Connnission's Interim 

Procedural Rules which were then in effect provided (29 CFR 2700.26(c)): 

(c) Where the respondent fails to appear at a hearing, the 

Judge shall have the authority to conclude that the respondent 

has waived its right to a hearing and contest of the proposed 

penalties and may find the respondent in default. Where the 

Judge determines to hold respondent in default, the Judge shall 

enter a sunnnary order imposing the proposed penalties as final, 

aμd directing that such penalties be paid. 

Counsel for petitioner moved at the hearing that respondent be held 

in default pursuant to Section 2700.26(c) and that the.pena~ties proposed 

by the Assessment Office be imposed. Counsel for petitioner also stated 

that he had just finished discussing the Assessment Office's proposed 

penalties with the inspectors who wrote the notices of violation here 

involved and that the inspectors had advised him that the proposed penalties· 

were in line with the company's size and the other five criteria which 

are required to be used in th.e assessment of penalties. 

1350 
MSHA v. Thacker, Docket No. PIKE 78-348-P (Contd.) 

Petitioner's motion is granted and I find respondent to be in 

default. I further find that respondent has waived its right to a 

hearing and that the penalties proposed by the Assessment Office should 

be imposed as hereinafter· ordered. 

WHEREFORE, it is ordered: 

Thacker Coal Company, shall, within 30 days from the date of this 

decision, pay civil penalties totaling $230.00 which are allocated 

to the. respective violations as follows: 

Notice No. 2 ALG (5/18) 12/11/75 § 75.1710-1 •• ~ ••••• $ 70.00 

Notice No. 1 ALG (6-1) 1/12/76 § 75.1710-1 • • • • • • • • • 74.00 

Notice No. 3 RDM (7-10) 7/13/77 § 75.1725 •••••••••••. 86.00 

Total Penalties Assessed in·This Proceeding •••• $230.00 

~:CA.cv~ C. r;it;Ll'2--:.Y- Ri.chard C. Steffey /Jll t/ 

Administrative Law Judge 

Distribution: 

Edward H. Fitch_ IV, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Thacker Coal Company, Attention: Mr. Jim Childers, Route 1, 

Box 909B, Pikeville, KY 41501 (Certified Mail) 

1351 
5t1J="1EYV AND w;.;~ft;L "'f}\ R l£ V&£Vv COf</HV~rns~ON OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

Ai~LINGTON, VIHG INIA 22203 

SEP 1 8 1979 

SECRETARY 9F LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION Q1SHA), 

Petitioner 

v. 

ENERGY DEVELOPMENT CORPORATION, 

Respondent 

Docket No. PIKE 79-15-P 

Assessment Control 

No. 15-10998-03001 

Holt Tipple 

DECISION. APPROVING SETTLEMENT 

Appearances: Edward R. Fitch IV, Esq. , Off ice of the Solicitor, 

Department of Labor, for Petitioner; 

Frederick L. Delp, Esq., Wood, Grimni & Delp, 

Huntington, West Virginia, for Respondent in 

settlement negotiations. 

When the hearing in the above-entitled proceeding was convened on 

July 26, 1979, in Pikeville, Kentucky, counsel for the Mine Safety and 

Health Administration requested that a settlement agreement entered into 

by the parties be approved. Under the parties' settlement agreement, 

respondent would pay total penalties of $200 in lieu of the total 

penalties of $700 proposed by the Assessment Office. Counsel for MSHA 

stated that he had agreed to accept the reduction in payment of penalties 

on the basis of a letter from respondent's attorney which, in pertinent 

part, reads as follows: 

* * * Pertaining to the above-captioned matter, it is our opinion 

that Energy Development Corporation is not responsible for the 

violations with which the above-captioned proceeding is concerned. Energy Development Corp. is not actively engaged in mining at the present time due to the depressed coal market and 

financial problems resulting therefrom. 

As I related to you by phone, Energy Development Corp. was 

at one time interested .in using the facility where the violations 

occurred and, as a result, had sent a Mr. Paul Washburn to the 

facility to make certain repairs to the facility. Energy Development Corp. did not at that time, nor has it ever, owned, operated, 

or leased the facility to my knowledge. Energy Development Corp. 

has no intentions of utilizing this facility in the future in any 

capacity whatsoever. In addition, it is my understanding and 

belief that the alleged violations occurred as a result of 

activities conducted at the facility by an entity or entities 

other than Energy Development Corp. and prior to the time that 

Energy Development Corp. sent its repairman to make repairs to the 

facility. 

l3Ci2 
MSHA v. Energy Development, Docket No. PIKE 79-15-P (Contd.) 

Although it is Energy Development Corporation's contention 

that it should not be responsible for these violations, it is 

willing to settle this matter for the sum of $200 in order to 

avoid the time and expense involved in a hearing on the matter. 

If this settlement is acceptable, please advise arnl the sum of 

$200 will be remitted forthwith. . 

I find that respondent has given adequate reasons for accepting 

a reduction of the proposed penalties from $700 to $200. In addition 

to the mitigating factors set forth in respondent's letter, the official 

file shows that respondent corrected all of the violations cited in 

the inspector's order. In doing so, respondent made repairs on a 

facility which it never owned, leased, or operated. 

In other settlement offers which .I have approved, I have made a 

detailed evaluation of the Assessment Office's findings with respect 

to the six criteria which are required to be considered in uetermining 

civil penalties. I do not believe that a discussion of the six 

criteria is n'ecessary in this instance because the settlement is being 

approved in light of extremely unique considerations which rarely occur. 

The dangerous conditions found by the inspector at the Holt Tipple 

have been corrected and the tipple's safety has been greatly improved 

for the benefit of any company which may undertake to operate the tipple 

in the future. Since there is considerable merit to respondent's contention that it was wrongly cited for the violations in the first 

instance, I find that its willingness to settle the issues by the 

payment of $200 has served the purposes of the Federal Mine Safety and 

Health Act of 1977. · 

WHEREFORE, it is ordered: 

· (A) The motion for approval of settlement is granted and the 

settlement agreement is approved. 

(13) Energy Development Corporation, pursuant to the settlement 

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

civil penalties totaling $200 which are allocated to the alleged violations as follows: 

Order No. 1 PW (7-1) 10/28/77 § 77.700-l(a) •••.•••••••• $ 30.00 

Order No. 1 PW (7-1) 10/28/77 § 77.505 . ................ 25.00 

Order No. 1 PW (1-1: .10/28/77 § 77.505 .. ............... 25.00 

Order No. 1 PW (7-1) 10/28/77 § 77 .1607 (cc) ............ 20.00 

Order No. 1 PW (7-1) 10/28/77 § 77.400(a) •••••••••••••• 20.00 

Order No. 1 PW (7-1) 10/28/77 § 77.400(a) ••••.•••.••••• 20.00 

Order No. 1 PW (7-1) 10/28/77 § 7 7. 511 . ................ 20.00 

Order No. 1 PW (7-1) 10/28/77 § 7 7 . 513 ...............•. 20.00 

Order No. 1 PW (7-1) 10/28/77 § 77 .1108 ................ 20.00 

---- Total Settlement Penalties in This Proceeding .••••• $200.00 

mu..A~ c. c:J;1c~l?t~¢- Richard C. Steffey J ,} C/ 

Administrative Law Judge 1353 
FEDERAL MtNE SAC:-iETY AND ~~EAtTH REVH::VJ COiVHlfHSS:ON 

SECRETARY- OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON bOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 1 8 \979 

Civil Penalty proceeding 

MINE SAFETY.- AND.:. HEAJ., TIL -

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. PIKE: 78-331:...p 

Assessment Control 

No. 05360-02001 

v. 

No. 1 Mine 

M & E: COAL COMP ANY, 

Respondent 

DE}.,AULT DECISION 

Appearances: Edward H. Fitch IV, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Before Administrative Law Judge Steffey 

When the hearing in the above-entitled proceeding was convened in 

Pikeville, Kentucky on July 26, 1979, pursuant to a written notice of 

hearing dated June 14, 1979, and served on respondent's representative 

on July 13, 1979, by a Federal coal""'llline inspector, counsel for the 

Mine Safety and Health Administration entered his appearance, but no 

one appeared at the hearing to represent respondent. The Couunission' s 

Interim Procedural Rules which were then in effect provided 

(29 CFR 2700.26(c)): 

(c) Where the respondent fails to appear at a hearing, the 

Judge shall have the· authority to conclude that the respondent 

has waived its right to a hearing and contest of the proposed 

penalties and may find the respondent in default. Where the 

Judge determines to hold respondent in default, the Judge shall 

enter a summary order imposing the proposed penalties as final, 

and directing that such penalties be paid. 

Counsel for petitioner moved at the hearing that respondent be held 

in default pursuant to Section 2700.26(c) and that the penalties proposed 

by the Assessment Office be imposed. 

Petitioner's motion is granted and I find respondent to be in default. 

I conclude that respondent has waived its right to a hearing by failing 

to appear at the hearing. 

In this particular case, it should be noted that respondent's reply 

to the show~cause order issued in this proceeding· on April 5, 1979, stated 

that respondent had filed a bankruptcy action in the United States 

District Court, Case No. 78-13, and that an amount of $322.12 had been 

distributed to respondent's creditors on November 17, 1978. 

1354 
MSHA v. M & E, Docket No. PIKE 78-331-P (Contd.) 

Counsel for peti.tioner agreed at the hearing that any penalties 

which may be assessed in this proceeding may be uncollectible, but 

he concluded that the collectibility of the penalties could be determined 

after a decision in this case has been issued. 

There is nothing in the official file to show that the penalties 

proposed by the Assessment Off ice were improperly determined under the 

six criteria set forth in Section llO(i) of the Act. Therefore, I 

shall direct that the proposed penalties be paid pursuant to Section 2700.26(c) quoted above. 

WHEREFORE., it is ordered: 

M & E Coal Company shall pay civil penalties totaling $108.00 

within 30 days from the date of this decision. The penalties are 

allocated to th.e respective violations as follows: 

Notice No. 1 CAW (4-1) 10/22/74 § 75.512 ............. $ 

Notice No. 1 DM (5-1) 2/13/75 § 75.200 ••••••••••••••• 

Notice No. 2 DM (5-2) 2/13/75 § 75.523 ••••••••••••••• 

Total Penalties Assessed in This Proceeding ••••• $ 

~~ C. ~$/A,(- Rich.ard C. Steffey Cl 

Administrative Law Judge 

Distribution: 

24.00 

38.00 

46.00 

108.00 

Edward H. Fitch_ IV, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

M & E Coal Company, Attention: Stirl Eddie Harris, Partner, Box 119 

·Turkey Creek, KY 41570 (Certified Mail) 

1355 
FEDERAL MINE SAFETY AND Hf.Al YH R EVEEVJ CCH\>UJHSS60N 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEV,J,RD 

ARLINGTON, VIRG INI/. 22203 

SEP 1 8 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket Nos. Assessment ·control Nos. 

v. 

LAWSON COAL COMPANY, INC., 

Respondent 

PIKE 78-404-P 

PIKE 79-34~P 

No. 32 Mi.lie 

DEFAULT DECISION 

15-10173-02007 v 

15-10173-03001 

Appearances: Edward H. Fitch IV, Esq., Office of the Solicitor, 

Department of Laoor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Ref ore Administrative Law Judge Steffey 

When the hearing in the above-entitled proceeding was convened in 

Pikeville, Kentucky, on July 26, 1979, pursuant to a written notice of 

hearing dated June 14, 1979, and received by respondent on June 18, 1979, 

counsel for th.e Mine Sa~ety and Health Administration entered his appearance, but no one appeared at the hearing to represent respondent. 

The Commission's Interim Procedural Rules which were then in effect 

provided (29 CFR 2700.26(c)): 

(c) Where the respondent fails to appear at a hearing, the 

Judge shall have the authority to conclude that the respondent 

has waived its right· to a hearing and contest of the proposed 

penalties and may find the respondent in default. Where the 

Judge determines to hold respondent in default, the Judge shall 

enter a summary order imposing the proposed penalties as final, 

and directing that such penalties be paid. 

Counsel for petitioner moved at the hearing that respondent be held 

in default pursuant to Section 2700.26(c) and that the penalties proposed 

by the Assessment Office be imposed. Counsel for petitioner also stated 

that he had just finished discussing the Assessment Office's proposed 

penalties with the inspectors who wrote the notices of violation and 

order involved and that the inspectors believed the penalties had 

appropriately been determined to be in an upper range of magnitude since 

the order involved in Docket No. PIKE 78-404-P had been issued under the 

unwarrantable-failure provisions of the Federal Coal Mine Health and 

Safety.Act of 1969. Petitioner's counsel stated that the six violations 

1356 
MSHA v. Lawson, Docket Nos. PIKE 78-40~., et al. (Contd.) 

alleged by MSHA's Petition for Assessment of Civil Penalty filed in 

Docket No. PIKE 79-34-P were significant and warranted the relatively 

large penalties which had been proposed by the Assessment Office in 

that docket. 

Petitioner's motion tliat respondent be found in default is granted 

and I find respondent to be in default. I conch1de that respondent 

has waived its right to a hearing and that the penalties proposed by 

the Assessment Office should be imposed as hereinafter ordered. I 

note that some of the defenses set forth in respondent's reply to the 

show~cause order issued in this proceeding on April 5, 1979, might have 

been sufficient to justify some reduction in the penalties which were 

proposed by the Assessment Office, but in a default proceeding, it 

would be improper for me to take into consideration allegations made in 

respondent's reply to the snow-cause order, particularly since 

Section 2700.26(c) specifically provides that when a judge determines to 

hold a respondent in default, "* * * the Judge shall enter a summary 

order imposing the proposed penalties as final, and directing that such_ 

penalties be paid" (Emphasis supplied). In short, respondent cannot 

have its evidence considered without availing itself of the opportunity 

of sending a representative to the hearing. 

WHEREFORE, it is ordered: 

Lawson Coal Company shall, within 30 days from tfi_e date of this 

decision, pay penalties totaling $2, 951. 00 which_ are allocated to the 

respective violations as follows: 

Docket No. PIKE 78-404-P 

Order No. 2 Rilli (7-2) 3/3/7'7 § 75.402 ............... $ 1,250.00 

Total Penalti_es in 'Docket No. PIKE 78-404-P $ 1,250.00 

Docket No. PIKE 79-34-P 

Notice No. 2 FIJ (7-49) 6/16/77 § 75.313 ••••..•••••• $ 370.00 

Notice No. 7 FIJ (7-54) 6/16/77 § 77.1701 . .......... 106.00 

Notice No. 1 FIJ (7-57) 6/21/77 § 75.313 . ........... 370.00 

Notice No. 2 FIJ (7-58) 6/21/77 § 75.512 . ........... 275.00 

Notice No. 1 FIJ (7-60) 6/23/77 § 75 .1710 . .......... 305.00 

Notice No. 1 FIJ (7-61) 6/27/77 § 77. 400 ............ 275.00 

Total Penalties in Docket No. PIKE 79-34-P ..... $ 1, 701.00 

Total Penalties in This Proceeding ............. $ 2,951.00 

~:Cf~/() .. /}(f c. r;J :t~/!b--<f: ... Richard C. Steffey // tl ti 

Administrative Law Judge 

1357 
SttF:ZYV AND ~2ldLT£i ~1EV§E\:\f COM~JHSS~ON OFFICE Of ADMIMSn;A-;iVE LM'J JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF WALTER LAWSON, 

JR.' 

Applicant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

SEP 19 19?9 

DiscriminaUon Complaint 

Docket No. HOPE 79-157 

Crane Creek No. 6 Mine 

ORDER DISMISSING COMPLAINT 

Statement of the Case 

This is a discrimination complaint filed by the Secretary on behalf 

of Walter Lawson, Jr., pursuant to Section 105(c)(2) of the Federal Mine 

Safety and Health Act of 1977. A review of the pleadings reflects that 

Mr. Lawson was employed by the respondent as a roofbolter and that he 

was discharged on October 25, 1978, after being observed asleep on the 

job during his work duty on a midnight shift. Sleeping on the job is 

contr;ary to company policy and a dischargeable offense. Mr. Lawson 

filed his initial complaint with the Secretary on November 2, 1978, 

asserting that he was wrongfully discharged because of his health and 

safety activities as a member of both th~ Mine Safety Committee and the 

United Mine Workers of America. Mr. Lawson denied that he was asleep on 

the job and asserted that many miners including the section foreman have 

been observed sleeping during the midnight shift and have not been 

fired, suspended or even reprimanded. · 

Mr. Lawson's discharge was arbitrated on November 6, 1978, pursuant 

to the 1978 Bituminous Coal Wage Agreement, and an award made on November 

20, 1978, reduced the discharge to a 90 day suspension which apparently 

ended on or about January 25, 1979. Thereafter, on December 28, 1978, 

the Secretary filed with the Commission his initial finding that Mr. 

Lawson's complaint was not frivolously brought and the Secretary requested 

an order from the Commission for Mr. Lawson's immediate temporary reinstatemen 

pending a final order on the merits. By notice of hearing issued on 

January 15, 1979, Chief Judge Broderick scheduled a hearing on the 

Secretary's application for Mr. Lawson's temporary reinstatement for 

January 19, 1979. However, on January 18, 1979, the Secretary, on behalf 

of Mr. L.awson, withdrew his applicati.on for temporary reinstatement 

on the·ground that respondent had given the Secretary assurance that 

Mr. Lawson would be reinstated to his former position on the midnight 

shift commencing January 24, 1979, and the hearing was apparently 

cancelled. 
On. January 29, 1979, the Secretary filed his discrimination complaint 

in Mr. Lawson's behalf pursuant to Section 105 (c) (2) of the Act. . 

Respondent filed an answer, and after the completion of rather extensive 

discovery, the matter was scheduled for a hearing on the merits in 

Charleston, West Virginia, September 25, ·1979. 

On September 17, 1979, the Secretary filed a motion to withdraw 

his complaint of discrimination, and in support thereof states as follows: 

1. Following the issuance of the complaint in this 

matter further investigation was conducted by 

the Mine Safety and Health Administration (MSHA). 

2. MSHA's investigation disclosed that Mr. Lawsqn 

was, in fact, found sleeping in the mine on 

October 25, 1978 and that sleeping is a dischargeable 

offense. Mr. Lawson had previously asserted that he 

was not asleep. 

3~ Notwithstanding the above, during the course of the 

investigation, the Operator and the Secretary negotiated 

a settlement which the Secretary believes would have · 

justly provided Mr. Lawson with the statutory remedies 

to which he claimed entitlement. Mr. Lawson refused 

to accept the settlement agreement. 

4. The Secret_ary then undertook further investigation 

to determine whether disparate treatment existed in 

this case. That investigation disclosed no evidence 

of such disparate treatment. 

5. Accordingly, the Secretary now believes that no illegal 

discrimination occurred as to Mr. Lawson and that 

withdrawal from this matter is appropriate. 

6. This withdrawal is requested without prejudice to the 

right of Mr. Lawson to file a complaint on his own 

behalf pursuant to the Act. 

Discussion 

The complaint of alleged discrimination in this case was filed 

by the Secretary on behalf of Mr. Lawson. Thus, it.is clear that the 

Secretary is the moving party and that he initially sought a determination 

and order by the Commission pursuant to Section 105(c)(2) that respondent 

1359 
unlawfully·discriminated against Mr. Lawson by discharging him because 

of his engaging in certain mine safety and health activities protected 

by Section 105(c)(l). Upon further investigation the Secretary now 

believes that Mr. Lawson's discharge.was justified and that no illegal 

discrimination under the Act occurred in connection with that discharge. 

Under the circumstances, I conclude that the motion should be granted, 

subject to any rights which Mr. Lawson may have to pursue this matter 

further on his own behalf pursuant to Section 105(c)(3) of the Act. 

Order 

The Secretary's motion is granted and this matter is DISMISSED 

without prejudice to Mr. Lawson's right to file a complaint on his own 

behalf within thirty (30) days of the date he was notified of the 

Secretary's determination that his rights under the Act were not violated. 

The hearing scheduled for September 25, 1979, is cancelled. 

~~ Administrative 

.· iNiKoutr'/[- d~- Law Judge 

Dis· ribution: 

Michei Nardi, Esq., Consolidation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 (Certified Mail) 

Barbara Krause Kaufmann, Trial Attorney, U.S. Department of Labor, 

Office of the Solicitor, 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Walter Lawson, Jr., Route 2, Box 69D-l, Rock, WV 24747 (Certified Mail) 

1360 
FEDERAL MINE SAFETY ANO HEJ~lTH REVIEW COM[\11SSION 

OFFICE OF ADMIPHSTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 1 9 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TEXAS INDUSTRIES, INC., 

Respondent 

.. . 

Civil Penalty Proceeding 

Docket No. DENV 79-160-PM 

A/O No. 41-00007-05002 

Bridgeport Quarry and Plant 

DECISION APPROVING SETTLEMENT 

On March 26, 1979, Petitioner filed what was, in effect, a motion 

for approval of settlement. This motion was denied in view of the 

substantial reduction in proposed penalties and the absence of 

sufficient explanation in the record for this reduction. 

On July 2, 1979, Petitioner filed a second motion for approval 

of settlement, as well as the inspector's statement for each citation. 

As grounds for the reduction in penalties and the settlement achieved 

by the parties, counsel for Petitioner asserted the following: 

(1) The operator has no history of previous violations, 

(2) The size of the operator's business is between 200,000 and 

300,000 annual hours worked by employees of the operator at the mine, 

and between 900,000 and 3,000,000 annual hours worked by all employees 

of the operator. 

(3) With respect to Citation No. 154249, the amount of the 

assessment for the alleged violation was $78 and the amount of the 

settlement is $18. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

of the violation and under the circumstances the operator 

had taken reasonable precautions to prevent the violation, 

(b) The occurrence of the event against which the 

standard is directed was not likely to happen, 

(c) No lost workdays likely would have happened 

if the event had occurred, 

1%1 
(d) Only one person would have been affected if the 

event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(4) With respect to Citation No. 154250, the amount of the 

assessment for the alleged violation was $78 and the mnount of the 

settlement is $52. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator failed to exercise reasonable care 

either to prevent or to correct the condition or practice 

which caused the violat:on and which was known or should 

have been known to exist. 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Lost workdays or restricted duty likely would 

have happened if the event had occurred, 

(d) Only one person would have been affected if the 

event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(5) With respect to Citation No. 154251, the amount of the 

assessment for the alleged violation was $98 and the amount of the 

settlement is $52. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator failed to exercise reasonable care 

either to prevent or to correct the condition or practice 

which caused the violation and which was known or should 

have been known to exist. 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Lost workdays or restricted duty likely would 

have happened if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

1362 
(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(6) With respect to Citation No. 154252, the amount of the 

assessment for the alleged violation was $78 and the amount of 

settlement is $18. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

of the violation and under the circumstances the 

operator had taken reasonable precautions to prevent 

the violation, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) No lost workdays likely would have happened if 

the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(7) With respect to Citation No. 154253, the amount of the 

assessment for the alleged violation was $106 and the amount of the 

settlement is $28. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

of the violation and under the circumstanes the operator 

had·taken reasonable precautions to prevent the violation, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Lost workdays or restricted duties likely would 

have happened if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

1363 
(8) With respect to Citation No. 154254, the amount of the 

assessment for the alleged violation was $170 and the amount of the 

settlement is $98. Petitioner believes that this settlement wili 

effectuate the purposes of the Act and should be approved because: 

(a) The operator failed to exercise reasonable 

care either to prevent or to correct the condition or 

practice which caused the violation and which was known 

or should have been known to exist, 

(b) The occurrence of the event against which 

the standard is directed was likely to happen, 

(c) Fatal injuries likely would have happened 

if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(9) With respect to Citation No. 154255, the amount of the 

assessment for the alleged violation was $122 and the amount of the 

settlement is $22. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known of 

the violation and under the circumstances the operator 

had taken reasonably precautions to prevent the violation, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Lost workdays or restricted duty likely would 

have happened if the event had occurred, 

(d) Only one person would have been affected if the 

event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(10) With respect to Citation No. 154256, the amount of the 

assessment for the alleged violation was $106 and the amount of the 

settlement is $28. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

1364 
(a) The operator reasonably could not have known of 

the violation and under the circumstances the operator 

had taken reasonable precautions to prevent the violation. 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Lost workdays or restricted duty likely would 

have happened if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(11) With respect to Citation No. 154258, the amount of the 

assessment for the alleged violation was $114 and the amount of the 

settlement is $38. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

of the violation and under the circumstances the operator had taken reasonable precautions to prevent the 

violation, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Permanent disabling injuries likely would have 

happened if th~ event had occurred, and 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(12) With respect to Citation No. 154259, the amount of the 

assessment for the alleged violation was $140 and the amount of tte 

settlement is $44. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

pf the violation and under the circumstances the 

operator had taken reasonable precautions to prevent 

the violation, 

1365 
(b) The occurrence of the event against which 

the standard is directed was likely to happen, 

(c) Fatal injuries likely would have happened if 

the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(13) With respect to Citation No. 154260, the amount of the 

assessment for the alleged violation was $140 and the amount of the 

settlement is $48. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

of the violation and under the circumstances the operator 

had taken reasonable precautions to prevent the violation, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Fatal. injuries likely would have happened if 

the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the ·time given for 

abatement. 

(14) With respect to Citation No. 154261, the amount of the 

assessment for the alleged violation was $122 and the amount of the 

settlement is $34. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

of the violation and under the circumstances the 

operator had taken reasonable precautions to prevent 

the violation, 

(b) The occurrence of the event against which the 

$tandard is directed was likely to happen, 

(c) Permanent disabling injuries likely would 

have happened if the event had occurred, 

1366 
(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(15) With respect to Citation No. 154262, the amount of the 

assessment.for the alleged violation was $122 and the amount of the 

settlement is $40. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

·of the violation and under the circumstances the 

operator had taken reasonable precautions to prevent the 

violation, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Permanent disabling likely would have happened 

if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator abated the violation within the 

time given for abatement. 

(16) With respect to Citation No. 1542.63, the amount of the 

Jsessment for the alleged violation was $106 and the amount of the 

settlement is $40. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known of 

the violation and under the circumstances the operator had 

taken reasonable precautions to prevent the violation, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Permanent disabling injuries likely would have 

happened if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator abated the violation within the 

time given for abatement. 

1367 
(17)' With respect to Citation No. 154264, the amount of the 

assessment for the alleged violation was $106 and the awount of the 

settlement is $36. Petitioner believes that this settlement will 

·effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

of the violation and under the circumstances the 

operator had taken reasonable precautions to prevent 

the violation, 

(b) The occurrence of the event against which 

the standard is directed was not likely to happen, 

(c) Permanent disabling injuries likely would 

have happened if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

·(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(18) With respect to Citation No. 154265, the amount of the 

assessment for the alleged violation was $150 and the amount of the 

settlement is $98. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator failed to e~ercise reasonable care 

either to prevent or to correct the condition or practice 

which caused the violation and which was known or should 

have been known to exist, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Fatal injuries likely would have happened if 

the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

(19) With respect to Citation No. 154266, the amount of the 

assessment for the alleged violation was $106 and the amount of the 

settlement is $60. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

1368 
(a) The operator failed to exercise reasonable 

care either to prevent or to correct the condition or 

practice which caused the violation and which was known 

or should have been known to exist. 

(b) The occurrence of the event against which 

the standard is directed was likely to happen, 

(c) Lost workdays or restricted duties likely 

would have happened if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violati~n wi~hin the time given.for 

abatement. 

(20) With respect to Citation No. 154267, the amount of the 

assessment for the alleged violation was $98 and the amount of the 

settlement is $32. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

the violation and under the circumstances the operator 

had taken reasonable precautions to prevent the 

violation, 

(b) The occurrence of the event against which 

the standard is directed was likely to happen, 

(c) Lost workdays or restricted duty likely 

would have happened if the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator abated the violation within the 

time given for abatement. 

(21) With respect to Citation No. 154268, the amount of the 

assessment for the alleged violation was $150 and the amount of the 

settlement is $38. Petitioner believes that this settlement will 

effectuate the purposes of the Act and should be approved because: 

(a) The operator reasonably could not have known 

of the violation and under the circumstances the 

operator had taken reasonable precautions to prevent 

the violation, 

1369 
(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Only one person would have been affected if 

the event had occurred, and 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

·(22) With respect to Citation No. 154269, the amount of the 

assessment for the alleged violation was $170 and the amount of the 

settlement is $48. Petitioner bel~eves that this settlement will 

effectuate the purposes of the Act and should be approved because: 

.Ca) The operator reasonably could not have known 

of the violation and under the circumstances the 

operator had taken reasonbly precautions to prevent the 

violation, 

(b) The occurrence of the event against which the 

standard is directed was likely to happen, 

(c) Fatal injuries likely would have happened if 

the event had occurred, 

(d) Only one person would have been affected if 

the event had occurred, and 

(e) The operator made special efforts to insure 

abatement of the violation within the time given for 

abatement. 

In view of the above, Petitioner's motion is granted. 

ORDER 

It is ORDERED that the settlement reached by P€~itioner and 

Respondent in the above-captioned proceeding is hereby APPROVED. 

It is further ORDERED that Respondent pay the sum of $872 within 

30 days of the date of this decision. 

Forrest E. Stewart 

Administrative Law Judge 

1370 
FEDERAL IVllNE SAFETY AND HEALTH REVIEW COMMISSION . . OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG tNIA 22203 

SEP 1 S 1979 

UNITED STATES STEEL CORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Application for Review 

Docket No. HOPE 79-152 

Order No. 253998 

November 22, 1978 

Gary No. 14-3 Seam Portal 

DECISION 

-Appearances: Billy M. Tennant, Esq., United St'ates Steel Corporation, 

Pittsburgh, Pennsylvania, for Applicant; 

David F. Barbour, Esq., Office of the Solicitor, MSHA, 

u.s. Department of Labor, for Respondent. 

Before: Administrative Law Judge Stewart 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

United States Steel Corporation (Applicant) filed a timely application pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (hereinafter, the Act), 30 u.s.c. § 801 et seq., 

requesting review of Order No. 253998, dated November 22, 1978:--

ORDER NO. 253998 

Order No. 253998 was issued on November 22, 1978, by inspector 

Joseph Barnett under sect.ion 104(d) of the Act. The inspector cited 

an alleged violation of 30 CFR 75.200. The condition or practice 

at issue was described as follows: 

The approved roof control plan was not being followed 

in that the No. 5 chain pillar split was driven up to 

22 feet wide and the right wing had cut through to gob 

and the place was driven 2 cuts inby. Turn timbers had 

not been set at mouth of place to meet requirements of 

the approved roof control plan. 

1371 
The ·order contains a finding that the violation was of such a 

natur.e as could significan.tly and substantially contribute to the 

cause and effect of a mine safety hazard. 

The order was terminated 2 hours later. The attempt to recover 

the No. 5 chain pillar was abandoned and it was timbered off. 

Order No. 253998 was issued in the course of a regular inspection of the Gary No. 14-3 Seam Portal. The inspector proceeded to 

the 2 Right Pump Heading Section, in the company of Delbert Parks, 

mine inspector for Respondent, and Lloyd Kruger, a member of the 

UMWA Safety Commission. 

The inspector observed what he believed to be two conditions or 

pract1ces in violation of Respondent's roof control plan at the 

No. 5 Train Post Split. The first three cuts of the retreat mining 

sequence had been made. The inspector testified that the second cut 

in this sequence had been made to a width of 22 feet and that the 

wing had been cut through into the adjacent gob area• He also testified that the third cut had been taken before the required turn posts 

had been set. 

Applicant submitted Proposed Findings 'of Fact which are set 

forth in substance as follows as additional findings of fact in this 

proceeding: 

Inspector Barnett, a duly authorized representative 

of the Secretary, conducted an inspection of Gary No. 14 

mine on November 22, 1978. Barnett, accompanied by Parks 

and Kruger, a UMWA representative, entered the mine at 

8:30 a.m. and travelled to the 2 Right Pump Heading section. 

Although the section crew had preceded Barnett into the mine 

by 30 minutes, no mining had begun in the section when 

Barnett arrived at 8:45 a.m. 

Barnett testified that a cut was driven in No. 5 chain 

pillar split to a width of 22 feet and the wing had been 

cut through into the gob; in fact, the cut was 20 feet wide 

but, because of a bump, a hole 3 feet long and 4 inches high 

had developed near the roof and had slid down to increase 

the width to 21 feet 5 inches. 

Barnett testified that (a) the hole into the gob was 

8 feet wide and from the bottom to the top of the coal seam, 

i.e., 6 feet, and (b) that the hole was circular, beginning 

about 2 feet from the bottom and having a diameter of 3 feet; 

in fact, the hole was 3 feet long and 4 inches high. 

Barnett testified that no timbers had been installed 

along the rib where the hole into the gob was located; in 

fact, two or three timbers had been set there. 

1372 
Barnett testified that there were bit marks to indicate that the miner had cut into the gob; in fact, there 

were no such bit marks. The hole into the gob could not 

have been cut by a continuous miner because of the location and dimensions of the hole. 

Barnett testified that (a) breaker timbers had been 

installed but that no turn timbers had been installed; and 

(b) that no timbers were installed; in fact, both breaker 

timbers and turn timbers had been installed. 

Barnett testified that the line brattice was installed 

on the right side and that no timbers were installed on the 

left side; in fact, the line brattice was hung on timbers 

installed along the left side and a check curtain was hung 

on timbers installed on the right side. 

Barnett testified that he issued the unwarrantable 

failure order because the company did not seem very interested in correcting the condition and that he would have 

issued only a citation if the condition had been corrected 

within a reasonable period of time. 

Parks told section foreman Hyatt to install crib 

blocks, which were delivered from the surface to the section 

and installed to breaker off ~he area later in the day. 

Barnett testified that he discussed the matter with 

Christian underground;. in fact, Christian did not work that 

week and did not talk to Barμett that day because he was at 

a hospital with his mother. 

Respondent's roof control plan contains the requirement that four 

turn posts be set after completion of the second cut. The inspector's 

testimony that these timbers had not been set was effectively refuted 

by that o.f Delbert Parks and David Hyatt, the foreman in charge of the 

section on the morning in question. Both testified that they observed 

four turn posts set as required. It is possible that the turn posts 

were obscured from view by the line brattice or by the check curtain 

which were hung on the timbers installed in the area. 

Respondent's roof control plan requires that breaker posts be set 

in the area of the third sequential cut before starting wing extraction. The testimony of Respondent's witnesses established that the 

hole in the wing leading to the gob was caused by a "bump" or sudden 

bursting of the pillar wall. The hole had not been cut by the Respondent. The inspector's assertion that it was a circular hole approximately 3 feet in diameter and that it began 1-1/2 feet above the floor 

is rejected. The hole was approximately 3 feet long by 4 inches wide. 

Respondent did not attempt wing extraction out of sequence. 

1373 
Respondent did not violate its roof control plan or section 

75.200 as alleged in Order No. 253998. 

Underlying Citation 

Citation No. 253245 was issued by inspector Joseph Barnett on 

September 5, 1978, during the course of a regular mine inspection. 

The inspection party included a representative of the UMWA and two 

members of Respondent's safety department, Delbert Parks and Richard 

Wooten. This group arrived at the 18 Left Section at approximately 

8:45 a.m. At that time, the entire crew on the section was setting 

timbers. The inspection party proceeded up the shuttle car roadway 

to the working place, which was located in the 13 pillar space. 

There, the inspector noted what he believed to be a violation of 

30 CFR 75.200. He alleged that the following condition or practice 

existed: 

The approved roof control plan was not being followed 

in that the roadway leading to the No. 13 and 14 pillar 

splits was not timbered down to meet the requirement of 

the plan (16 to 20 feet wide and no additional roof supports were added) in the 18 Left Section. 

The inspector issued a citation pursuant to section 104(d)(l) of 

the Act, thereby indicating a finding that the alleged violation was 

caused by an unwarrantable failure of Applicant to comply with the 

cited safety standard. He also found that the violation was significant and substantial. 

Respondent's roof control plan requires that roadways outby 

pillars which are being mined be limited to a width no greater than 

18 feet. If the roadway exceeds 18 feet, at least one row of posts 

are required to be installed so as to limit the width to 16 feet. The 

widths of two specific areas of roadway are at issue here: the first 

of these is that portion of the roadway which extended for one pillar 

outby No. 13 pillar (hereinafter, the roadway between pillars B and 

C), and the second is that portion which was immediately adjacent to 

pillar No. 13 (hereinafter, the roadway between pillar No. 13 and 

pillar C). The inspector issued Citation No. 253245 after taking 

several measurements in these two areas of roadway. At one point, the 

inspector testified that he took a total of six to nine measurements. 

Under cross-examination, he admitted that he had no specific recollection of the exact number of measurements taken. 

The inspector testified that the roadway between pillars B and C 

was up to 20 feet in width. Delbert Parks took a total of some 

15 measurements in this area and achieved different results. He found 

that the width of the roadway varied for the most part from 16 to 

17-1/2 feet. At its widest, the roadway was only 18-1/2 feet. At 

that point, th,~ continuous miner had taken a 4- to 6-foot long "nick" 

out of the rib. 

1374 
The inspector also testified that the roadway between pillar 

No. 13 and pillar C was up to 19 feet in width. Respondent's section foreman testified that this section of the roadway was within 

the 18-foot maximum. 

The inspector testified that he examined the preshift-onshift 

examination record book for September 5, 1978, before he went underground that morning, and he observed therein an entry which noted 

the need to post a. pillar split on the 18 Left Section. The inspector claimed to have made a notation on that particular page. Under 

cross-examination, he was confronted with a copy of the page. It 

contained neither the notation he claimed to have made nor any indication of a need to post the pillar split. 

United States Steel Corporation submitted Proposed Findings of 

Fact to the effect that: 

Inspector Barnett, the duly authorized representative 

of the Secretary, who conducted the inspection of Gary 

No. 14 mine on September 5, 1978, testified (1) that he 

examined the preshift book before going underground and that 

the fireboss had recorded therein that No. 13 pillar split 

in 18 Left section needed safety posts; when in fact, there 

was no such entry in the fireboss book (2) that Gary No. 14 

·Mine operated three production shifts daily; when in fact, 

the mine operated two production shifts and one construction 

shift daily (3) that Delbert Parks and Richard Wooten, members of the company safety department, and Buchanan, a UMWA 

. safety committeeman, accompanied him underground; when in 

fact, Buchanan was not there but a UMWA representative named 

Walters was in the group. 

The mine did not operate between August 30 and 

September 5, 1978, beca,1se of a shortage of railroad cars 

and the Labor Day holiday. The night shift was a construction shift so the day shift on September 5 was the first 

production shift since August 30. The production crew 

assigned to 18 Left section entered the mine about 

30 minutes before Barnett entered the mine. On arrival at 

the section, Foreman White examined the working places prior 

to energizing equipment. White discovered that, at the 

remaining push block at No. 13 pillar where he planned to 

begin mining, the bottom was wet and muddy and several 

timbers were laying in the mud. It appeared likely that the 

continuous miner had knocked the timbers out as it backed 

out of the working place because the area was steeply 

sloped, the timbers were skinned as though they had been 

struck and there were prints on the roof caused by the timbers when they were installed and later dislodged. Mine 

foreman Christian instructed White to clean the area of 

1375 
the.mud, water and coal before replacing the timbers. The 

crew was hauling the ~ud and coal away in a shuttle car as 

Barnett arrived at about 8:45 a.m., and had already begun 

to reset the timbers. No mining had yet taken place on the 

shift. Barnett sa~d that the area at the push block and 

the roadway outby the block were too wide; Parks and White 

disagreed. Barnett had made no comment about the roadway 

width as he traveled along it to No. 13 pillar and took no 

measurements then; White, Christian, and Parks traveled 

along the roadway and observed nothing unusual about its 

width or the condition of the roof. The roof support plan 

provides for roadways 18 feet wide, but requires that if 

said width is exceeded, a row of posts must be installed to 

limit the width of the roadway to 16 feet. Parks and Wooten 

took between 12 and 15 measurements along the roadway. All 

measurements were less than 18 feet except at one location 

where a nick in one.rib resulted in a width of 18-1/2 feet. 

Barnett testified that he and Buchanan took six measurements 

along the roadway and found a width up to 20 feet; in fact, 

Buchanan was not there and Barnett took no measurements. 

Parks drew a yellow chalk line designating a width of 

16 feet along the roadway. After a row of timbers was 

installed along the chalk line, it wa~ not possible to walk 

between the rib and the row of timbers. The ribs were fairly 

straight. Generally the mine has good roof conditions; particularly, in 18 Left section the ribs were not sloughing 

and the rib rolls did not present a hazard there. 

These proposed findings are accepted as additional findings of 

fact with the exception of Applicant's assertion that Inspector 

Barnett took no measurements. There is no evidence that the inspector 

did not testify truthfully and accurately to the best of his recollection in this proceeding. The inspector could have been mistaken 

in his belief that the mine operated three production shifts daily 

and, considering the large number of mines inspected, there was obviously room for honest error in attempting to recollect the names of 

persons accompanying the inspector and in attempting to reconstruct 

all of the notations that had been made in fireboss books. The difficulty in making measurements across the roadway accurate to within 

a few inches with no means to ascertain that the tape was perpendicular to the ribs was also obvious. In addition to the possibility 

that the measurements were not made in a manner to record the shortest distance across the roadway, there was the possibility that the 

measurements were made in the area of small nicks or even from nicks 

on each side, Although the ribs were fairly straight the record 

indicates that there was at least one large nick. 

Some of the uncertainty as to the measurements and the method by 

which they were taken might have been eliminated if the conditions 

alleged by the inspector had been pointed out to the operator's 

1376 
representative at the time the inspector took his measurements. 

The results could have thereby been verified and any differences 

as to places and methods of taking measurements might have been 

reconciled by discussions between the parties. 

The inspector's testimony with respect to the distance between 

pillar No. 13 and pillar C is suspec~. The only measurement of width 

dLscussed by him in any detail was 16 feet. He did not identify the -

location of the 19-foot width. Moreover, his recollection of the 

extent to which pillar No. 13 had been mined was in error. He testified that only the first cut had been taken from the pillar. In fact, 

the pillar had been split and its wing extracted. Only the push 

remained. 

The inspector's conclusion that this part of the roadway was too 

wide is further undermined when note is taken of the efforts required 

for abatement. Delbert Parks testified that posts were set only in 

the ~oadway between pillars Band C. The testimony of Respondent's 

witnesses is persuasive. The roadway in question exceeded the 18-foot 

maximum width requirement only in the area of the "nick." 

The inspector's conclusion that unwarrantable failure existed on 

the part of Respondent had two bases, both of which are rejected here. 

He testified that the condition was visually obvious an<l, therefore, 

should have been observed by the section foreman. As noted above, 

the roadway was no more than 6 inches too wide for a distance of 4 to 

6 feet. The amount by which the width exceeded the 18-foot requirement and the distance for which it did so will not support an inference that the condition was visually obvious. 

The inspector had concluded that the operator had actual knowledge of the condition as evidenced by an entry in the preshift-onshift 

examination record book to the effect that further posting was needed 

on the section. As noted above, no such entry had been made. 

The inspector also noted that the condition was abated by 11 a.m. 

that same morning and that Respondent took extraordinary steps to gain 

compliance by assigning the entire crew to correct the situation. 

The record will qot support a finding of unwarrantable failure 

on the part of Respondent. Citation No. 253245 was not properly 

issued under section 104(d) of the Act. 

1377 
ORDER 

The application for review is GRANTED and Order No. 253998, 

issued November 22, 1978, is hereby VACATED. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Billy M. Tennant, Esq., United States Steel Corporation, 600 Grant 

Street, Pittsburgh, PA 15230 (Certified Mail) 

David F. Barbour, Esq., Office of the Solicitor, MSHA, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

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

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

1378 
FEDERAL MINE SAFETY ANO Ht::ALTH REV!EW COMMISSSON . . OFFICE OF ADMINISTRATIVE LAW JUDGES · · 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SEWELL COAL COMPANY, 

Respondent 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP ? C 197~ 

Civil Penalty Proceeding 

Docket No. WEVA 79-31 

. A.O. No. 46-01478-03014 

: Sewell Underground Mine 

No. 1 Mine 

DECISION AND ORDER DISMISSING PENALTY PETITION 

On January 15, 1976, the operator was cited for. failure to provide 

a canopy on a Galis 300 roof bolting machine in use in the 012 section 

of the Sewell No. 1 Mine. Due to the pendency of a petition for waiver 

of the requirement, the time for abatement was repeatedly extended 

until the section was abandoned on September 28, 1978. 

On January_ll, 1979, a proposed order of assessment issued assessing 

a penalty of $295.00 for the violation of 30 C.F.R. 75.1710-l(a) 

alleged. On April 28, 1979, the petition for waiver of the canopy 

requirement was granted on the ground that the minimum mining height 

of 4fr inches in the 012 section was inadequate to permit use of a canopy 

on the Galis roof bolter without diminishing the safety of the miners. 

Sewell Coal Company v. MSHA, Docket No. M 76-131, 44 F.R. 48383, 

August 17, 1979. 

On April 26, 1979, the operator was cited for failure to provide 

a canopy on a Joy 16SC shuttle car in use in the 014 section of the 

Sewell No. 1 Mine. The citation notes that the "minimum height of 

the coal seam was 43 inches." The notice of abatement states that on 

September 19, 1978, the Joy shuttle car was replaced with another 

shuttle car "which had a proper canopy." 

On January 11, 1979, a proposed order of assessment issued 

assessing a penalty of $305.00 for the violation of 30 ~.F.R. 75.1710-l(a) 

alleged. On April 28, 1979, a petition for waiver of the canopy 

requirement on all Joy 16SC shuttle cars in use in the Sewell No. 1 

Mine was granted wherever the minimum mining height did not exceed 

48 inches. Sewell Coal Company v. MSHA, supra. 

117Q 
On April 5, 1979, the Secretary through his Regional Solicitor 

in Philadelphia, Pennsylvania filed a petition for assessment of civil 

penalties for the two canopy violations charged. Thereafter the matters 

were assigned to Judge Littlefield who retired on July 1, 1979. After 

reassignment the presiding judge issued a notice of hearing and pretrial 

order. In response, the parties' filed a motion to approve settlement 

on August 24, 1979 in the amount of $25.00 each and a total of $50.00 

for the two can·opy violations charged. The motion made no reference 

to the decision of April 28, 1979 on the petition for waiver of the 

canopy requirement but did state "the use of canopies on Galis drills 

had caused injuries to employees performing tramming operations." It 

was further represented that "At the time of the inspection, no cab or 

canopy was commercially available for Respondent's use on a shuttle 

car working in 43 inch high coal." 

Based on the undisputed facts of record, I find that on the dates 

the aforesaid notice and citation issued compliance with the "improved" 

mandatory safety standard set forth in 30 C.F.R. 75.1710-l(a) was 

impossible without diminishing the safety of the miners and depriving 

them of the protection afforded by section 318(i) of the mandatory 

safety standards, 30 U.S.C. § 878(i). I further find that for the 

reasons set forth in the attached Memorandum Opinion the Secretary's 

failure to comply with the mandatory safety standard set forth in 

section 318(i), 30 U.S.C. § 878(i) of the Mine Safety Act has deprived 

the miners of the protection afforded by that standard and thereby 

rendered null, void and unenforceable the "improved"mandatory safety 

standard set forth in 30 C.F.R. 75.1710-l(a). 

Accordingly, it 1s ORDERED that the parties' motion to approve 

settlement be, and hereby is; DENIED the captioned petition DISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

~arshall H. Harris, Regional Solicitor, David Street, Esq., U.S. Department of Labor, Office of the Solicitor, 3535 Market Street, Room 

14480, Philadelphia, PA 19104 (Certified Mail) 

Gary W. Callahan, Esq., The Pittston Coal Company Group, Sewell 

Coal Company, Lebanon, VA 24266 (Certified Mail) 

1380 
F.EDERAL MINE SAFETY AND C--HEALTH REVIEW COMMISSION 

SECRETARY OF.LABOR, 

OFFICE OF ADMINISTRATIVE LAW .JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 2 0 1979 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 79-31 

Petitioner A~C. No. 46-01478-03014 

v. 

·Sewell No. l Underground Mine 

SEWELL COAL COMPANY, Sol. No. 5672 Mine 

Respondent 

MEMORANDUM OPINION 

This opinion is filed to set forth the Presiding Judge's views 

with respect to his dismissal of the captioned petition on the ground 

that the improved mandatory safety standard (30 CFR 75.1710-l(a)) 

relating to the use of canopies on electric face equipment is null, 

void and unenforceable. Since invalidity of a standard deprives the 

Secretary and the Commission of subject matter jurisdiction, the Presiding Judge may, ~ sponte, take notice of the jurisdictional 

defect. 

I 

The overriding purpose of the Mine Safety and Health Act, 

30 U.S.C. § 801 et~., as amended, is to reduce and redistribute 

1381 
the human costs incident t_o producing coal to fire the engine of the 

.modern American industrial machine. As Orwell noted: 

Our civilisation * * * is founded on coal, more compietely than one realises until one stops to think about it. 

The machines that keep us alive, and the machines that make 

the machines, are all directly or indirectly dependent upon 

coal. In the metabolism of the Western world the coal-miner 

is second in importance only to the man who ploughs the 

soil.· He is a sort of grimy caryatid upon whose shoulders 

nearly everything that is not grimy is supported. For this 

reason the actual process by which coal is extracted is well 

worth watching, if you ge.t the chance and are willing to 

take the trouble. [Emphasis in original.] 

G. Orwell, The Road to Wigan Pier, 31 (Berkeley-Medallion, 1963, first 

published in England in 1937). 

Having finally taken the trouble, Congress in 1969 passed the 

Federal Coal Mine Health and Safety Act and under Titles I and III 

thereof established certain minimum mandatory safety standards, "to 

protect the health and safety of coal miners, and to combat the 

steady toll of life, limb, and lung, which terrorizes so many unfortunate families." H. Rep. No. 91-563, 9lst Cong., 1 Sess. 2, 

reprinted in [1969], U.S. Code Cong. & Admin. News 2503. 1/ 

1/ "Yet despite this considerable Congressional attention, our nation 

still experiences deaths and serious injuries in our-mines at a rate 

which casts shame on an advanced, industrialized society. Every working day of the year, at least one miner is killed and sixty-six miners 

suffer disabling injuries in our nation's mines." S. Rep. ·95-181, 

95th Cong., 1 Sess. 4 (1977). 

Coal mining has never been a safe occupation, nor is it safe 

today. Statistics show 91,662 coal miners were killed between 1906 

and 1976. If coal mining is considered a means of waging industrial 

war, it would rank third in the number of dead behind World War I and 

World War II. 

Between 1930 and 1976, coal miners sustained more nonfatal disabling injuries than have all of America's soldiers in all of America's 

principal wars between the Revolution and Vietnam. 

1382 
See United Mine Workers v. Kleppe, 532 F.2d 1403; 1405-06 (D.C. Cir. 

1976), cert. denied, 429 U.S. 858 (1976). 

As the same court later noted: 

The part of th.e Act aimed at assuring the maintenance within 

mines of appropriate health and safety conditions is built 

around the concept of the mandatory standard. The legislative history reveals two competing concerns in the minds of 

persons affected by the legislation, and the mandatory standard concept was adopted as a way of reconciling the apparapparent inconsistency. On the one hand, Congress' inability 

to respond rapidly to changing conditions of knowledge and 

technology made it desirable to create a power of amendment 

at the agency level. On the other hand, strong fears were 

voiced by representatives of both industry and labor that 

a freely exercised power of amendment might result in an 

unpredictable and capricious administration of the statute, 

which would redound to the benefit of no one. [Emphasis in 

original.] 

The mandatory standard concept evolved to deal with 

this dilemma combines a comprehensive set of "interim" 

mandatory standards, promulgated by Congress, with elaborate consultative procedures for the formulation of additional "improved" mandatory standards. These Section 101 

procedures, which may never be used to decrease the level 

of protection afforded miners under an existing standard, 

prescribe the precise manner in which the Secretary is to 

promulgate the new mandatory standards. [Footnotes 

omitted.] 

Zeigler Coal Company v. Kleppe, 536 F.2d 398, 402-03 (D.C. Cir. 1976). 

Returning to the theme of a Congressionally-mandated, irreducible, 

minimum of protection, the court again emphasized that: : 

-Recognizing also the need for conditions to improve with 

scientific and technological advancement [Congress] established procedures by which existing standards could be 

changed, but were careful to provide that the levels of 

protection afforded miners may not be reduced below standards operative prior to amendment [citing Sec. lOl(b), 

·30 U.S.C. Sec. 811 (b) (1969); Sec. 10l(a)(9) of the 1977 

Amendments]. 

Id. at 408. 

1383 
Accordingly, I conclude that since the statute prohibits the Secretary from promulgating under the guise of an "improved" standar'd 

one that decreases the level of protection afforded miners, any action 

by the Secretary which results in such a diminution of protection is 

null, void and unenforceable. 5 U.S.C. § 706(2)(C). 

Indeed, as long ago as May 1977, the Interior Secretary'i delegate, the Board of Mine Operations Appeals, forecast a decision 

invalidating the "improved" standard in question. Thus, in upholding 

a judge's decision finding that contrary to the intent of Congress, 

enforcement of the "improved" standard diminished the safety of the 

miners, the Secretary's delegate noted that: 

(The record supports SOCCO's allegations of the following 

elements of diminution of safety: excessive [equipment] 

operator fatigue; the dangerous practice of operating 

equipment from outside the operator's compartment; operators injuring their heads and other parts of their bodies 

when they lean out of the equipment to see; running into 

other miners who could not be seen; difficulties in stepping out of operators' compartments creating the danger of 

being trapped in case of fire; jarring of operators' heads 

against canopies lowered to provide clearance; and ma~1y 

others.) The problem which we foresee, however, is that 

excessive litigation will result from this decision. That 

problem is minor though compared to the fact that the regulation involved will not do ju.stice to the apparent intent 

of the statute the chief aim of which is to protect miners 

in circumstances where protection is needed. We are using 

the device of this Preface to express our hope that rule-

.making or some other administrative vehicle can be used to 

eliminate the dual spectre ·of unnecessary and costly litigation and the prospective ineffectiveness of this 

regulation. · 

Southern Ohio Coal Company, 7 IBMA 331, 355-356 (1977). 

1384 
Despite these well-founded qualms, the Board, as a creature 

of the Secretary, shrank from the responsibility of declaring the 

".improved" standard invalid. With the advent of the new and independent Federal·Mine Safety and Health Review Commission on March 9, 

1978, however, it is clear that the Presiding Judge has such jurisdiction and authority. '!:_/ Congress clearly did not intend the 

Commission to rubber-stamp violations of invalid standards. 

It is true that under section lOl(d), 30 U.S.C. § lOl(d) of the 

amended Act, Congress has authorized direct review in courts of 

appeals of improved standards "promulgated under" the new section 101. 

Furthermore, the period for filing such a review is limited to 60 days 

after promulgation. Here, the "improved" standard was issued on 

October 3, 1972, at a time when the limited, preenforcement direct 

review of section lOl(d) did not exist. Thus, unless section lOl(d), 

together with its exclusivity provision is given retroactive effect, 

it is clear that under established law the Presiding Judge has authority to pass on the _validity of the "improved" standard in question. '}_/ 

2/ Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 548-551 

(3d Cir. 1976); Matter of Restland Memorial Park, 540 F.2d 626, 627-

628 (3d Cir. 1976); National Industrial Contractors v. OSHRC, 583 F.2d 

1048, 1052 (8th Cir. 1978); Bituminous Coal Operators' Association v. 

Marshall, 82 F.R.D. 350, 353-354 (D.D.C. 1979). 

!/ See Secretary of Labor v. Penn Allegh Coal Company, PITT 78-97-P 

(April 7, 1978), appeal pending. The legislative history states only 

that the the validity of standards promulgated after March 9, 1978, 

shall not be subject to collateral attack before the Commission. 

S. Rep. 95-181, 95th Cong., 1st Sess. 20 (1977). 

1385 
It seems obvious, however, that for all of the policy reasons 

advanced by the United States Court of Appeals for. the Third Circ·uit 

in Atlantic & Gulf Stevedores, supra, section lOl(d) does not control 

the question of the Commission's authority to consider the validity of 

the "improved" standard in question in this case. As noted, section 

lOl(d) is inapplicable to this case since it is limited to improved 

standards issued under the new section 101, effective March 9, 1978, 

whereas the "improved" standard in question was promulgated on 

October 3, 1972, 37 FR 20690, under the provisions of section 101 of 

the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 811 

(1969). It is also worth noting that section lOl(d) requires only 

persons "·who may be adversely affected" to resort to its provisions. 

Thμs, mine operators who were not in business during the 60-day 

period or who had no reason to believe they were aqversely affected, 

may eventually be faced with enforcement proceedings in which they 

find it necessary to challenge the validity of "improved" standards 

issued before 1978. Section lO(b) of the APA, 5 U.S.C. § 703 provides 

that "[e]xcept to the extent that prior, adequate, and exclusive 

opportunity for judicial review is provided by law, agency action is 

subject to judicial review in civil or criminal proceedings for 

judicial enforcement.'' This provision, passed in response to the 

Court's decision in Yakus v. United States, 321 U.S. 414 (1944), 

requires the courts to determine in each case whether Congress, by 

establishing a special review procedure, intended to preclude or to 

permit judicial review of agency action in enforcement proceedings. 

Attorney General's Manual on the APA, 100-101 (1947). 

1386 
More recently~ the Suprene Court held that an exclusivity provision 

does not preclude the courts from determining whether a particular 

administrative regulation was properly designated as a standard 

falling within that provision. As the court noted, in an enforcement 

proceeding the Government has the. burden of showing that a standard 

claimed to be subject to a preclusion and exclu.sivity provision is 

the type of standard Congress intended to exclude f.rom judicial 

review. Adamo Wrecking Co. v. United States, 434 U.S. 275, 282-285 

(1978). Consequently, if the effect of 30 CFR 75.1710-l(a) is to 

reduce the protection afforded the miners by the mandatory safety 

standard set forth in section 318(i) of the Mine Safety Act, 30 U.S.C. 

§ 878(i), it follows that the canopy requirement is not properly 

designated an "improved standard." It seems likely, therefore, that 

the courts will strictly construe the exclusivity provision so as to 

avoid invalidation on constitutional grounds. !±_/ 

!±_/ As the court in Atlantic & Gulf Stevedores, supra , noted an 

exclusivity provision--in effect a binding 60-day statute of limitations--may be unconstitutional since it would subject citizens to 

fines, penalties, and imprisonment for violations of standards that 

would otherwise be declared invalid and unenforceable. Id. at 550. 

Furthermore, because the prohibition is largely unqualified, it 

may be unconstitutional on its face. As Mr. Justice Rutledge noted 

in his dissent in Yakus v. United States: 

"Once it is held that Congress can require the courts criminally 

to. enforce unconstitutional laws or statutes, including regulations, 

or to do so without regard for their validity, the way will have been 

found to circumvent the supreme law and, what is more, to make the 

courts parties to doing so. This Congress cannot do. 

"* * * The idea is entirely novel that regulations may have a 

greater immunity to judicial scrutiny than statutes have, with respect 

to the power of Congress to require the courts to enforee them without 

regard to constitutional requirements. At a time when administrative 

action assumes more and more of the law-making function, it would seem 

the balance of advantage, if any, should be the other way. 

"* * * Clearly Congress could not require judicial enforcement of 

an unconstitutional statute. The same is true of an unconstitutional 

regulation." 321 U.S. 414, 468-469 (1944). 

1387 
Constitutional questions aside, to the extent the exclusivity 

provision precludes administrative oversight of the Secretary's l.awmaking function by an independent commission, it may be politically 

unwise-if not downright pernicious. He is no friend of the administrative process who would immunize the vast and powerful lawmaking 

authority of an administrative bureaucracy such as the Labor Department from close scrutiny by both the administrative judiciary and 

ultimately the Article III courts. If the rule of law is to be 

upheld and is to be made meaningful, the citizen must be afforded 

the fundamental right to challenge lawless action at any time 

enforcement threatens to deprive him of his life, liberty or 

property. 

II 

Section 318(i) of the mandatory safety standards, 11 30 U.S.C. 

§ 878(i) (1969), requires that all features of electrically-operated 

equipment taken into or used inby the last open crosscut must be 

designed, constructed and installed, in accordance with the specifications of the Secretary (1) to assure that such equipment will not 

cause a mine fire or explosion, and (2) to prevent to the greatest 

5/ Section 30l(a) of the.Act, 30 U.S.C. § 86l(a) (1969), states: 

•

11 [ t]he provisions of sections 302 through 318 of this title shall 

be interim mandatory safety standards applicable to all underground 

coal mines until superseded in whole or in part by improved mandatory 

safety standards promulgated by the Secretary under the provisions of 

section 101 of thisAct * * *·" 

The Act provides the Secretary no exemption from compliance with 

mandatory standards. 

1388 
extent possible other accidents in the use of su~h equipment. In 

addition, the standard provides that: 

The regulations of the Secretary or the Director of 

t~e Bureau of Mines in effect on the operative date of 

this title relating to the requirement of investigation, 

testing, approval, certification, and acceptance of such 

equipment as permissible shall continue in effect until 

modified or superseded by the Secretary * * * 

Pursuant to this authority, the Secretary continued in effect 

regulations relating to the construction, design and installation of 

the electrical features of face equipment, including electric motordriven or self-propelled mine equipment and access.ories, 30 CFR 

18.20 through 18.52, ~/ but never issued regulations relating to the 

design, construction or installation of cabs or canopies. 

Instead, the Secretary· invoked the section 101 proce.dures to 

issue an "improved" standard 30 CFR 75.1710-l(a) under section 217(j) 

of the mandatory standards, 30 CFR 75.1710, 30 U.S.C. § 877(j) (1969). 

Section 317(j) provides: 

An authorized representative of the Secretary may 

require in any coal mine where the height of the coalbed 

permits that electric face equ~pment, including shuttle 

cars, be provided with substantially constructed canopies 

or cabs to protect the miners operating such equipment 

from roof falls and from rib and face rolls. 

6/ These regulations require that the electrical features of selfpropelled electric face equipment consist of "intrinsically safe 

circuits" and that such equipment be "safe for its intended use. 11 

1389 
Ignoring the requirements of section 318(i), the Secretary promulgated 30 CFR 75.1710-l(a) under the guise of an "improved" 

·standard. This regulation delegated to mine.operators and equipment 

manufacturers responsibility for the design, fabrication and installation of canopies on their existing oversized electric face equipment. 

37 FR 20689-90. At no time, has the Secretary promulgated specifications for the design, construction and installation of cabs and canopies which require the canopies provide for the safety and comfort of 

the equipment operators. ]_/ At no time, has the Secretary required 

manufacturers of mining equipment to design, construct and install 

canopies "with the safety of the [equipment] operator as the prime 

requisite."!/ At no time, has the Secretary required operators to 

purchase equipment of a size compatible with the safe use of canopies. In fact, it is the position of the Solicitor that the existing 

"improved" standard does not require an operator to replace his existing oversi=ed equipment with lower profile equipment compatible with the safe use of canopies. 9/ 

]_/ See Southern Ohio Coal Company, 8 IBMA 55, 57 (1977), reconsideration denied. As to Secretarial findings regarding the availability 

of canopy technology, the Board stated: 

"The Secretary did not find that practical technology is available. to design and construct a canopy for installation on selfpropelled electric face equipment such as would resu~t in no diminution of safety in any mine, and logically he could not. * * * [A] 

Secretarial finding that technology exists to install substantially 

constructed canopies to protect miners from nonmassive roof falls 

is of no value where the question is whether technology exists for 

the installation of canopies which do not otherwise diminish safety 

in that mine. 11 (Emphasis in original.) Id. at 57. 

8/ Robert E. Barrett (former Administrator, MESA), Special Study on 

Cabs and Canopies, 5 (August 15, 1975). 

2._/ See Florence Mining Company, et al. v. MESA, M 76-115, ~al. 

56-62 (October 31, 1977). This decision became final for the Department of the Interior when the Solicitor withdrew MESA's appeal to the 

Board of Mine Operations Appeals on December 13, 1977. 

1390 
While the Secretary argues that he is at liberty to "ignore" the 

requirements of section 318(i) and to "choose" to delegate his 

r.esponsibility for the design, construction and installation of safe 

canopies to the mine operators, I can find no warrant for this construction in the Act or its legislative history. Instead, I find 

that as applied to this operator and others similarly situated, the 

"improved" standard promulgated as 30 CFR 75.1710-l(a) diminishes 

the safety of the miners below that contemplated by the mandatory 

standard set forth in section 318(i). On this. showing it follows 

that the "improved" standard, both on its face and as applied, is 

invalid under section 10l(a)(9) of the Act, as amended. 10/ 

In June 1976, after 4 years of experience with the "improved" 

standard, the Secretary extended the timetable for installation "in 

order to permit development of additional technology on cab or canopy 

design in conjunction with accomplishing equipment design changes to 

adapt cabs or canopies * * *" in mining heights under 42 inches. 

41 FR 23199 (June 9, 1976). In July 1977, a year later, the canopy 

program was indefinitely suspended in mining heights under 42 inches 

due, in part, to the admitted and persistent lack of feasible solutions to the human engineering problems encountered when mine operators ~ttempted to retrofit canopies on both new and existing 

equipment. 42 FR 34876-77 (July 7, 1977). 

10/ Section lOl(b) (now section 10l(a)(9)) provides: 

"No improved mandatory health or safety standard promulgated 

under this title shall reduce the protection afforded miners below 

that provided by any mandatory health or safety standard." 

1391 
III 

The Secretary's abdication of his statutory responsibility 

has resulted in the development of an ad hoc research and development program which harasses coal operators and makes guinea pigs 

out of miners who are forced to work under canopies which are 

untested. _!!/ 

Nevertheless, the Secretary has attempted to justify abdication 

of his responsibility by claiming that because -the mine safety hws 

are to be construed as "technology forcing," the mine operators may 

11/ Testimony in modification cases as to the burdens placed upon 

the ope~ators and the hazards to which miners are exposed is voluminous. See Florence Mining Company, et ~l. v. MESA, M 76-115 et al. 

(October 31, 1977);.Bishop Coal Company, et al. v. MESA, M 76-13, 

et al. (December 16, 1977), appeal pending; Penn Allegh Coal Company 

v. MESA, M 76-27 (June 15, 1977), appeal pending; Southeast Coal Com-

~ v. MESA, M 76-33 (May 4, 1977), appeal pending; Southern Ohio 

Coal Compani v. MESA, M 76-349 (October 29, 1977), affirmed as modified, 7 IBMA 331 (May 23, 1977), reconsideration denied, 8 IBMA 55 

(June 30, 1977). A description of the ad hoc compliance procedure. is 

contained in Robert E. Barrett, Special Study on Cabs and Canopies 

(August 15, 1975), and in a memorandum from the Deputy Assistant 

Administrator, dated July 11, 1977, which establishes guidelines for 

the granting of extensions of any 104(b) notices (104(a) citations 

under the 1977 Act) if the coal operators demonstrate good faith 

attempts to install canopies on some pieces of equipment on some 

sections of some mines. 

1392 
be forced to bear the burden of research, experimentation, design, 

fabrication, construction, and installation of cari:opies. 1J:_/ 

A_ccepting as true that the Act is intended to be technology forcing, 

the cases previously cited by the Secretary do not support his argument. 13/ 

12/ Neither former Administrator Barrett nor the Secretary is unaware 

of the meaning and force of section 318(i). In his Special Study on 

Cabs and Canopies, page 9, Mr. Barrett recommended that all equipment 

manufacturers should be put on notice that MESA will strictly enforce 

section 318(i). In the most recent suspension of the canopy requirements, the Secretary observed: 11 [M]ine operators have been forced to attempt to retrofit new 

equipment, which in many cases involves major changes and alterations 

in the design of the operator's compartment and the machine to resolve 

human engineering problems. To meet and correct this situation, MESA 

is developing specifications for cab and canopy compartment configurations for new mining equipment pursuant to section 318(i) of the [1977 

Act]." 42 FR 34877 (July 7, 1977). 

I take this to mean that equipment manufacturers eventually will 

be required to construct equipment according to·human engineering 

specifications established by the Secretary; that this equipment will 

bear a plate certifying that it is 11 permissible 11 ; and that operators 

will not be permitted to use equipment not bearing a permissible 

plate. It is to be hoped that the Secretary will also specify on the 

permissible plate the minimum mining height in which the particular 

piece of equipment plus canopy may be used with safety. 

QI See Chrysler Corporation v. Department of Transportation, 

472 F.2d 659, 675, 678 (6th Cir. 1972) (agency required to provide 

objective criteria for testing newly-developed technology as well as 

objectively defined performance criteria for automobile manufacturers 

required to develop and install "airbags"); Society of the Plastic 

Industry v. OSHA, cert. denied, 421 U.S. 992 (1975), 509 F.2d 1301, 

1309-1310 (2d Cir. 1975) (small numbers of vinyl choloride and polyvinyl chloride manufacturers required to utilize existing innovative 

technologies to reduce exposure to carcinogens). Both AFL-CIO v. 

Brennan, 530 F.2d 109 (3d Cir. 1975), and HUD v. Hodgson, 4~F.2d 

467 (D.C. Cir. 1974), held that the Occupational Safety and Health 

Act is technology forcing~ But neither states that a regulation 

promulgated in the guise of forcing technology is valid per se. 

If the Secretary had heretofore imposed on mine equipment manufacturers the responsibility for developing, designing and constructing canopies under section 318(i), the regulatory scheme might 

well be deemed technology forcing. However, delegating-the research 

and development responsibility to each coal operator is analogous to 

the Secretary of Transportation requiring car dealers, not manufacturers, to develop, design and install airbags. Car dealers would 

not--and coal operators do not--have the requisite research and 

development resources. 

1393 
The ultimate poverty of the Secretary's "technology-forcing" 

argument is revealed in a recent holding of the Third Circuit. In 

American Iron and Steel Institute et al. v. OSHA, 577 F.2d 825 

(3d Cir. 1978) (Petition for Certiorari filed December 9, 1978), 

the steel industry claimed, inter alia, that a regulation requiring 

employers to "research, develop and implement any other engineering 

and work practice controls necessary to·reduce exposure" to coke 

oven emissions, was unauthorized by the Occupational Safety and Health 

Act. Over the Secretary's argument that the requirement was valid as 

"technology forcing, 11 the court held: 

29 U.S.C. §665(b)(5) grants authority to the Secretary 

to develop and promulgate standards dealing with toxic 

materials or harmful agents "based upon research, demonstrations, experiments, and such other information as may 

be appropriate." Under the same statutory provision the 

Secretary is directed to consider the latest scientific 

data in the field. As we have construed the statute, the 

Secretary can impose a standard which requires an employer 

to implement technology "looming on today's horizon," and 

is not lmited to issuing a standard solely based upon technology that is fully developed today. Nevertheless, the 

statute does not permit the Secretary to place an affirmative duty on each employer to research and develop new 

technology. Moreover, the speculative nature of the 

research and development provisions renders any assessment 

of feasibility practically impossible. In holding that the 

Secretary lacks statutory authorization to promulgate the 

research and development provision, we note in passing that 

we need not reach petitioners' challenge to the provision 

as fatally vague. Accordingly, we hold the research and 

development provision of the standard to be invalid and 

'unenforceable. [Emphasis supplied.] 

Id., 577 F.2d at 838. 14/ 

14/ The Secretary of Labor did not seek review.of this holding. 

The pertinent language of 29 U.S.C. § 665(b)(S) tracks the language 

of section lOl(c) of the 1969 Act; section 10l(a)(6)(A) of the 

1977 Act. 

1394 
As I have stated above, the Federal Coal Mine Health and Safety 

· Act of 1969 and its successor place an affirmative obligation on the 

Secretary to conduct the research necessary to ensure that the standards he promulgates enhance, rather than decrease, the level of protection afforded the miners. Like the Occupational Safety and Health 

Act, the 1969 and 1977 Mine Safety Acts.do not permit the Secretary 

to place an affirmative duty on each operator to research and develop 

new technology. The Secretary recognizes that workable and safe 

canopy technology looms on some future horizon, not today's. }J_/ 

Thus, the regulation at issue which requires each operator to conduct such research and development--and thereby places miners at 

risk--is beyond the authority of the Secretary to promulgate and 

must be deemed invalid and ~nenforceable. 

15/ See 42 FR 34876 (suspension of canopy requirements); Southern 

Ohio coal Company, 7 IBMA 331, 355-356, reconsideration denied, 

8 IBMA 55, 57 (1977). 

1395 
FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION . . OFFICE OF ADMINISTRATIVE LAW. JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 2 1 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA),. 

Petitioner 

v. 

SEQUATCHIE VALLEY COAL CORP. , 

Respondent 

Docket No. BARB 79-152-P 

A.c. No. 40-01172-03001 

No. 1 Strip Mine 

DECISION 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

.u.s. Department of Labor, for Petitioner; 

William C. Myers, Esq., Stophel, Caldwell & Heggie, 

Chattanooga, Tennessee, for Respondent. 

Before: Administrative Law Judge Michels 

The above-captioned civil penalty proceeding was brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 

1977, ·30 u.s.c. § 820(a). The Mine Safety and Health Administration 

(MSHA) filed a petition for the assessment of civit penalties on 

December 12, 1978, alleging that Respondent committed violations of 

30 CFR 77.403(a), 77.1605(a), 77.1109(c)(l), and two separate violations of 77.410. On January 24, 1979, Respondent filed its answer 

contesting the violations;. A hearing was held on June 21, 1979, in 

Chattanooga, Tennessee, at which both parties were represented by 

counsel. 

Citation No. 7-0002, February 8, 1977 

· Ev.idence was first received regarding Citation No. 7-0002 

(February 8, 1977), which alleged a violation of 30 CFR 77.403(a). 

The condition or practice cited by the inspector is as rollows: 

"Roll protection structure was not provided for the Caterpillar 

992 endloader, 1971 Model, SN 25K 542, at this mine." The regulation, 77.403(a), provides in pertinent part that: "[a]ll rubbertired or crawler-mounted self-propelled scrapers, front-end loaders, 

dozers, graders, loaders, and tractors, with or without attachments, 

that are used in surface coal mines or the surface work areas of 

underground coal mines shall be provided with rollover protective 

structures * * * " 

1396 
On the basis of the evidence presented, and in light of the 

statu.tory criteria, a decision was made from the bench finding a violation of the standard and assessing a penalty of $25.. This decision 

from pages 61-64 of the transcript, with some minor corrections, is· 

set forth below: 

In a case like this, I believe that I would be derelict 

in my duties and obligations if I should find that there was 

no violation, the principle reason being that the law does 

place the burden upon the operator to know and comply with 

the regulations. I believe that this was the intention.of 

Congress; and it would be my obligation to follow that. Of 

course, my further obligation would be to take into account 

the circumstances and try to alleviate, if required, any 

undue hardships that might possibly develop. 

It is possible, of course, that the inspector had seen 

this condition before when he had previously inspected this 

mine. I believe his testimony was to the effect that he 

didn't remember exactly the times that he had been there 

before, and it's possible that other inspectors had been 

there; but I believe the rule would be that the inspector 

would not be held bound if he should miss a violation on 

any particular occasion. Also, his explanation that he 

became aware of this for the first time when he submitted 

the number of the machine to determine the year seems 

plausible to me; so I would accept that explanation. 

Accordingly, I find that the failure as charged to have 

the roll-over protection did violate 77.403(a). 

Taking into account, then, the criteria as required by 

law; and of which there will be at least three that will 

apply not only to this alleged violation, but to others as 

well, if they are found to be violations; and the first 

would be the history of prior violations. My ruling would 

be that there is not a significant history of past 

violations. 

Another applicable item: criteria as to the size of 

the operator. My belief is that this is a small operator, 

based on the tonnage mentioned, and I would so find. 

And I believe it is also clear not only from the circumstances, but from the testimony, that the size of the 

penalties here indicated would not affect the operator's 

ability to continue in business. 

As to this particular violation, I find that the operator achieved a rapid compliance in good faith in light of 

the type of violation charged. 

1397 
So far as gravity is concerned, this can be a serious 

violation under some circumstances because of the hazard 

in a machine turning over. However, the inspector did 

testify here that he saw no imminent danger, and further 

believed it to be nondisabling due to the location. And, 

at least, as I understand the ·testimony, there was not a 

strong probability at this point of an injury. So, in 

summary, I would find that it would be a small amount of 

gravity or seriousness. 

Negligence. Certainly, in a technical sense, the operator is held to knowledge of the requii:'eroonts; and in this 

case, however, I would take into account the fact that 

Mr. Studer did testify that he was not aware of these 1974 

amendments and I believe, therefore, that this would be a 

mitigating circumstance. 

The assessment of the penalty was $38.00, and the Secretary has indicated that he believes, because of the 

seriousness, it should be a higher penalty even than that. 

From my ordinary experiences, this does not seem to be a 

very high penalty to me; however, I have already indicated 

that I believe the gravity here is small in this particular 

circumstance, and I have taken into account that -- the 

smaller degree of negligence. 

Furthermore, in this matter the notice was issued more 

than two years ago. It's my view that it's not so much the 

idea of a penalty that's involved here as it is to change 

the practice which might lead to the hazard; and that was 

done, and this is all past history. And in these circumstances, I conclude and find that a penalty of $25.00 

would be adequate. That would be my assessment for this 

violation. 

The above bench decision and assessment are hereby AFFIRMED. 

Citation No. 140056, April 13, 1978 

Thereafter, the parties agreed to stipulate as to the fact of the 

violation set forth in Citation No. 140056 (April 13, 1978), and the 

correctness of the assessment if a violation should be found. The 

·condttion asserted was that " [ t]he front windshield was shattered on 

the Fiat .Allis Model 745-4B Company ff L2 being used at this mine." 

The citation alleges a violation of 30 CFR 77.1605(a) which provides 

that: "[c]ab windows shall be of safety glass or equivale~t, in good 

condition and shall be kept clean." 

Although stipulating to the fact of the violation, Respondent 

raised a defens.e as to the validity of the inspection in which the 

1398 
citation was issued. This inspection was undertaken by the landing of 

a helicopter at the mine site and Respondent contended that the place 

of ·landing was unsafe because of its proximity to blasting operations. The record is fully developed on the helicopter landing and 

the activities which were in progress at that time (Tr. 69-116). The 

evidence showed that blasting was not actually taking place at the 

moment of landing, so there was not an imminent danger. However, had 

blasting been taking place, it could have put the helicopter in danger 

(Tr. 116). Since both Petitioner and Respondent were concerned with 

the safety aspects of the inspectors' helicopter landings, the parties 

were directed to try to reach an understanding on such landings for 

future inspections at this particular mine. Respondent was willing to 

drop its contention of unsafe inspection practices by MSHA if it would 

be allowed to designate an area in which helicopter landings could be 

made safely and unannounced (Tr. 120). The inspector, Jerry McDaniel, 

testified that in the circumstances such a designation would not 

affect the element of surprise. The area designated would not change 

so that inspectors would not have to call in advance to .determine its 

location for landing. Because of the novelty of the proposal, the 

Solicitor agreed to submit the matter to MSHA for its consideration. 

Counsel was directed to report to the court within 30 days. On July 2, 

1979, Respondent filed a copy of its letter to Petitioner Wherein it 

designated specific areas for helicopter landings. It claimed that 

"the designated areas will not prejudice the surprise factor in such 

inspection." Thereafter, on August 2, 1979, Petitioner MSHA advised 

the court and Respondent that in the future it will land its helicopters within the areas designated by the Respondent. Thus, this particular contention was resolved by mutual agreement. 1/ 

A bench decision was issued at the hearing·on the merits of the 

violation, subject to reconsideration should an agreement not be 

reached on the landing area. Such reconsideration has been rendered 

unnecessary in light of the agreement referred to above. The following. decision appears on page 12~ of the transcript: 

In view of the stipulations, my finding is that there 

is a violation, and the penalty assessed is that which was 

as.sessed by the Office of Assessments, namely, $18.00. 

Since the parties have resolved the helicopter landing issue, I 

hereby AFFIRM the above decision and assessment. 

Citation Nos. 140377-140379, April 13, 1978 

Following this decision, Petitioner and Respondent introduced 

evidence on Citation No. 140377 (April 13, 1978), which alleges a 

1/ I want to take this occasion to commend the parties and their 

counsel for the anicable resolution of a sticky problem. 

1399 
violation of 30 CFR 77.410 stating that: "[t]he automatic reverse 

alarm installed on the front-end loader SN 25 K 542 was not in 

operating condition." That regulation requires that: "[m]obile 

equipment, such as trucks, forklifts, front-end loaders, tractors 

and graders, shall be equipped with an adequate automatic warning 

device which shall give an audible alarm when such equipm:nt is put 

in reverse." Evidence was also presented on Citation No. 140378 

(April 13, 1978), which similarly alleges a violation of 30 CFR 

77.410 for failure to have a reverse alarm on a grader. Finally 

considered was Citation No. 140379 (April 13, 1978), which charges 

a violation of 30 CFR 77.1109(c)(l) for the same machine, the grader, 

for failure to provide a fire extinguisher. Section 30 CFR 

77.1109(c)(l) provides: . "Mobile equipment., incuding trucks, frontend loaders, bulldozers, portable welding units, and augers, shall 

be equipped with at least one portable fire extinguisher." 

On the basis of the evidence presented, and in light of the 

statutory criteria, a decision on these three remaining citations 

was issued from the bench. That decision, with so~ corrections, 

if'1 as follows: 

In the violation regarding the loader, the charge was 

that it did not have a backup alarm. The inspector testified that the men were not working at the time, but all the 

evidence was, in his mind, that it had been working previously and that there was some kind of interruption in the 

work. From all appearances, that machine was to go back 

into operation. The mi.ner who operated the machine gave no 

indication whatsoever that the machine was being taken out 

of service for repair or was out of service. The indications were that it was to go back into operation. 

I realize that Mr. Studer did testify that the machine 

was out of service -- he understood or thought, at least, 

for some kind of service repair. But I believe that, as I 

view the situation, the circumstances suggest that it was 

there in operation; it was an operational machine. 

Now, it's true, I think that that alarm possibly could 

have gone inoperational when it was sitting there, but that 

seems to me unlikely. The machine operator was not aware 

of when it was or was not operating or working. It seems 

likely to me that it was not working previously while that 

machine was functioning. So accordingly, I would find a 

violation here of 30 CFR 77.410 on this loader. 

I do that fully cognizant of the various comments and 

arguments Respondent made that these [alarms] are somewhat 

unreliable and that they can go out at any time, and I 

recognize that in some circumstances this couid be a very 

1400 
harsh rule. I would take into account any indication that 

it had been recognized that this was out of order and something was being done about it. I don't see that ~ind of 

circumstance here in this one instance; so accordingly, I 

would find a violation and will consider it in the criteria. 

We have already taken into account certain other criteria 

previously, and so I have to consider here only the three. 

The matter was abated in good faith rapidly, . so I' 11 take 

that into consideration. 

Now, as far as the gravity is concerned, there were 

other men working there. These backup alarms, it seems to 

me, are extremely important to safety because they are the 

alarm to anybody in back of the machine, and quite clearly, 

its failure to operate could result in a serious injury. 

As far as negligence is concerned, I will take into account 

the various references to the fact that these alarms are 

sometimes unreliable. I would take that fully into account. 

So I find that -- in this particular case, at least, small 

negligence; although there is some necessarily. 

In light of that fact, I would reduce that penalty to 

$30.00. So accordingly, that would be my finding as to the 

assessment. 

The other two violations as alleged are another 77.410, 

which involves the lack of a backup alarm, and also a violation of 77.1109(c)(l), which is the alleged lack of a fire 

extinguisher, also on the same grader. Now, on these two 

violations, I'm going to bunch them together. I have a difficulty here. It's not that I don't think that the inspector could issue such notices and they should be sustained 

if there is evidence -- it's not only his belief, of course; 

but I think that the evidence should sustain his belief 

that the machine was operational. 

Now, this machine, I suppose, in one sense, is operational; but as I understand the testimony, the machine was 

only used infrequently, perhaps once a month. In light of 

the fact that it would be normal to inspect the machine 

used so infrequently for the safety devices, it seems probable to me that before it was put into operation, that any 

such deficiencies might be corrected. This is not to take 

away from what the inspector did. I think he probably 

acted reasonably and he acted on information which, ·as he 

understood it, was given to .him by Mr. Studer. The only 

way.I can reconcile this is that there was a misunderstanding between the two men as to what was said and as to what 

Mr. Studer really intended to say. Mr. Studer testified 

here today that the machine did have a backup alarm; that 

1401 
it was not operational; however., that the machine was not 

in operation at the time and that the policy was that the 

·alarm would be made operational. I don't know that this 

is quite so clear with the fire extinguisher. [The inspector testified that Mr. Studer, the machine operator, said 

there was not a fire extinguisher provided on it 

(Tr. 155. )l 

I have to agree that the testimony is somewhat in 

conflict. It depends on precisely what Hr. Studer said 

there. I would think -- we have no testimony on it; but 

I would think if the machine had the brackets, it would 

be clear that when it was put into operation the fire 

extinguishers would be put on it. But as I indicated, I 

don't see the testimony being that clear; I just simply 

can't resolve it that easily. 

In the circumstances, since this was only an occasionally used machine, I'm just going to give the benefit 

of the doubt in this instance to the Respondent. As I 

say, in so ruling, I am not in any way indicating that I 

believe that the inspector was wrong. He called it as he 

saw it, and I am simply deciding on the basis of the 

record, the testimony, and the evidence on both sides as 

we now have it. And that would be my judgment, then, as 

to both of those citations, that I would rule that the 

evidence does not sustain the violations, and that 

-accordingly, they should be dismissed; and I do hereby 

dismiss them. 

The decision above assessing a penalty of $30 in Citation No. 

140377 and dismissing the petition as to Citation Nos. 140378 and 

140379 is hereby AFFIRMED. Further, Citation Nos. 140378 and 140379 

are hereby VACATED. 

In SUllllI\ary, a finding of violation has been made regarding 

Citation No. 7-0002 and a penalty of $25 assessed; violations found 

in Citation Nos. 140056 and 140377 and penalties assessed of $18 and 

$30, respectively; and the petitions for Citation Nos. 140378 and 

140379 were dismissed and the citations vacated. 

ORDER 

It is ORDERED that Respondent pay total penalties of $73 within 

30 days of the date of this decision. 

d~.f),~ Franklin P. Michels 

Administrative Law Judge 

1402 
FiEDERAL MINE SAFETY A.ND HIEA.lTti REVCEW COMMBSSBON . OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 2 5 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BETH ANN COAL CORPORATION, 

Respondent 

Docket No. NORT 79-18-P 

A/O No. 44-04823-03001 

No. 2 Mine 

DECISION APPROVING SETTLEMENT 

AND 

ORDERING PAYMENT OF CIVIL PENALTY 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, 

U.S. Department of I.:1bor, for Petitioner; 

John R. Lark, Secretary-Treasurer, Beth Ann Coal 

Corporation, Big Rock, Virginia, for Respondent. 

Before: Judge Cook 

A petition for assessment of civil penalty was filed pursuant to 

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

in the above-captioned proce.eding. An answer was filed and a prehearing order was issued. Notices of hearing were issued setting the 

above-captioned proceeding for hearing on the merits beginning at 

2 p.m., June 27, 1979, in Abingdon, Virginia. 

At the hearing counsel for the Petitioner appeared, h~wever, no 

one appeared for the Respondent. During the course of a recess the 

Administrative Law Judge conducted a telephone conference with counsel 

for the Petitioner and Mr. Lark, who represented the Respondent. Both 

parties then conferred and reached a settlement agreement. Thereafter, 

at the hearing, counsel for MSHA informed the Judge that a motion 

requesting approval of settlement would be filed. On July 6, 1979, 

MSHA filed a motion requesting approval of settlement wherein it 

requested that the Respondent be granted 90 days from the date of 

appro.val in which to pay the agreedupon settlement figure. A complete 

transcript of the hearing was filed on September 13, 1979. 

1403 
Information as to the six statutory criteria contained in section llO of the Act has been submitted. This information has provided 

a full disclosure of the nature of the settlement and the basis for 

the original determination. Thus, the parties have complied with the 

intent of the law that settlement be a matter of public record. 

An agreed settle.ment has been reached between the parties in the 

amount of $590 .. The assessment for the alleged violations was $682. 

The alleged violations and the settlement are identified as 

follows: 

30 CFR 

Citation No. Date Standard Assessment Settlement 

323139 04/26/78 75.313 $ 84 $ 84 

323140 04/26/78 75.523 122 87 

323141 04/26/78 75.516-2 60 25 

323142 04/26/78 75.703 90 90 

323143 04/26/78 75.604 90 90 

32314!~ 04/26/78 75.ll07 122 100 

322390 05/25/78 75.604 ll4 114 

As grounds for the proposed settlement, MSHA states, in part, 

follows: 

1. As shown by the Inspection Report (Appendix A), 

the No. 2 Mine was· operated by the Beth Ann Coal Corporation near Big Rock in Buchanon County, Virginia. The 

mine had a daily production of approximately 200 tons of 

marketable coal, one production shift, one employee on the 

surface and six employees underground. The front side of 

the Proposed Assessment (Appendix B) prepared by the MSHA's 

Office of Assessments shows MSHA records had the corporation producing 50,878 tons of coal in 1978, of which the 

mine produced a total of 12,500 tons of coal that year. 

The mine and operator should be classified as small for 

purposes of assessing a civil penalty. 

2. During the telephone conversation on June 28, 

1979, Mr. Lark explained*** that the coal in the ground 

is owned or leased by one United Coal Company (formerly 

Wellmore Coal Company), and the Beth Ann Coal Corporation 

had contracted with United Coal Company to mine the coal 

at a rate of so much money a ton. The Beth Ann Coal 

Corporation is presently insolvent and has no cash flow. 

The only means of obtaining money to pay the corporation 

debtors is to have United Coal Corporation or one of its 

1404 

as 
lessees operate the mine and reimburse Beth Ann for its 

equipment. However, the anticipated equipment sale has 

been delayed because there have been unforeseen delays in 

preparing the mine so it can again produce coal. Based 

substantially on the foregoing information, the Office of 

the Solicitor agreed to reduce the civil penalties to the 

amounts indicated above because larger penalties could 

adversely affect the ability of the operator to remain in 

business. * * * 

3. The Office of Assessments reports there is no 

history in that office of prior paid violations concerning 

this mine. 

* * * * * * * 

5. Citation No. 323139 issued citing 30 CFR 75.313 

because the methane monitor was inoperable on a cutting 

machine. 

Gravity: Both former inspector Roby R. Fuller and 

present inspector Larry F. Clevinger appeared in the 

courtroom and were interviewed by the undersigned 

attorney concerning the issues posed by this proceeding. 

Both inspectors agree that the mine has no history of 

liberating methane. See also the issuing inspector's 

statement, Appendix C, concerning this violation. Consequently, the gravity by reason of the inoperable methane 

detector would be that some mines not known to liberate 

methane have had methane ignitions. Both inspectors 

agree that the chance of methane building to the 5% to 

15% explosive range in this Eagle coal seam is unlikely. 

The violation is nonser1ous. 

Negligence: Appendix C (the inspector's statement) 

shows the condition had been recorded in the book of weekly 

examinations so the Respondent had information that the violation existed and continued to mine coal. The violation 

is intentional or the same as gross negligence. 

Abatement: 

provided by the 

of good faith. 

The condition was abated within the time 

inspe.ctor which demonstrates a normal degree 

Penalty: The Office of Assessments proposed a civil 

penalty of $84.00 (appendix B), and because the violation 

is intentional the Office of the Solicitor would be 

unwilling to reduce the amount of the penalty. 

1405 
6. Citation No. 323140 issued citing 30 CFR 75.523 

because the panic bar on the roof bolt machine was 

inoperable. 

Gravity: A panic bar has saved lives. Nevertheless, 

an emergency of some sort must occur before the panic bar 

switch is needed. Furthermore, a roof bolting machine does 

not travel fast or have much mobility. In fact, some roof 

bolting machine models are not equipped with brakes because 

such vehicles travel at such low speed. The need for a 

panic bar is less on a roof bolter than on a shuttle car 

or other faster, more mobile equipment. The violation is 

serious since death or injury is possible as a result of 

the condition. See the Inspector's statement concerning 

this violation, Appendix D. 

Negligence: The Inspector's statement, Appendix D, 

notes that the roof bolt machine operator has some supervisory responsibilities. However, the operator of the 

machine may not have had occasion to depress the panic 

bar and he still would then not know it was not operable. 

Abatement: The condition was abated within the time 

provided by the Inspector which demonstrates a normal degree 

of good faith. 

Penalty: The Office of Assessments proposed a civil 

penalty of $122.00 (appendix B), which the Office of the 

Solicitor has agreed to reduce to $87.00 because the negligence is not well established and because of the financial 

condition of the operator. 

7. Citation No. 323141 issued citing 30 CFR 75.516-2 

because the telephone wire was not hung on insulated hangers 

in two places. 

Gravity: The two inspectors are both electrical 

inspectors and both agreed that a telephone wire never has 

over 24 volts and usually has only six to nine volts. Thus, 

although the mine is very wet there is no shock hazard 

because of the low current. Since the mine does not liber-

· ate methane there is only a remote danger from that source 

by reason of the wire on the mine floor. The violation is 

nonserious. 

Negligence: Inspector Roby cannot remember whether an 

insulated hanger had been provided for the wire and the wire 

had been knocked off or whether there never had been a hook 

provided for the wire. Both inspectors agree that the wire 

could have been knocked down suddenly without being observed. 

1406 
Although the negligence would be gross negligence if no 

hanger had been provided, MSHA cannot prove that there was 

any negligence involved in the violation. 

Abatement: The violation was corrected within the time 

provided which demonstrates a normal degree of good faith. 

Penalty: The Office of Assessment proposed a civil 

penalty of $60.00. The inspector's statement, Appendix E, 

concerning this violation merely stated that the mine operator, Buford Hackney (a former HSHA inspector also), supervises some of the work--apparently the presumption would be 

that if Mr. Hackney saw the wire after it fell there would 

be an intentional violation. However, at a hearing MSHA 

could not prove negligence since we do not know if hooks 

were provided or when or what caused the wire to fall. 

Thus, the Office of the Solicitor (considering the financial problems of the operator, the nonserious nature of 

the violation, and the inability to prove negligence) will 

settle for a civil penalty of $25.00. 

8. Citation No. 323142 issued citing 30 CFR 75.703 

because the roof bolting machine was no longer frame 

grounded since the wire had broken. 

Gravity: For there to be an electric shock some component in the roof bolting mrichine must first malfunction 

because the frame ground wire is a backup protection. 

However, as noted in the inspector's statement, Apendix F, 

there is a possibility that a miner could receive a shock 

as a result of this condition--especially since the mine 

1.s wet. 

Negligence: The condition would not be discovered 

until the weekly electrical examination was made. 

Abatement: The condition was abated when the inspector 

next returned, so the condition was abated with a normal 

degree of good faith. 

Penalty: The Office of Assessments proposed a civil 

penalty of $90.00 (appendix B). The Office of the Solicitor considers the proposed civil penalty to be reasonable, 

and recommends that it be approved. 

9. Citation No. 323143 issued citing 30 CFR 75.604 

because one or more permanent splicings on the trailing 

cable to the cutting machine were not insulate~ until 

moisture was excluded. 

1407 
Gravity: As noted in the inspector's statement, 

Appendix G, the mine is wet so moisture could have e~tered 

the openings and caused an arc, resulting in an electric 

shock or burn. 

Negligence: Although Appendix G notes that the mine 

operator is foreman of the mine also, there is no showing 

that he or anyone knew or should have known of the condition. The cable must be examined at the beginning of 

the shift, but the break may have occurred after the~ 

examination. 

Abatement: The violation had been abated when the 

inspector returned, so a normal degree of good faith was 

demonstrated. 

Penalty: The Office of Assessments proposed a civil 

penalty of $90.00 (Appendix B), and the Office of the 

Solicitor deems the proposed civil penalty reasonable and 

recommends that it be approved. 

10. Citation No. 323144 issued citing 30 CFR 75.1107 

because the cutting machine was not provided with fire 

resistant hydraulic fluid, nor did it have the fire 

suppression device which can be used as an alternative 

requirement. 

Gravity: The Inspector's statement, Appendix H, sho~s 

the Inspector had no opinion about gravity or negligence. 

The reason being that the mine is so wet that fire in the 

cutting machine is remote. 

Negligence: The person installing the hydraulic fluid 

may not have noticed the color which is the means of 

identifying fire retardant fluid, so the violation is the 

result of a normal degree of negligence, and not gross 

negligence as deemed by the Office of Assessments. 

Penalty: As shown by Appendix B, the Office of Assessments recommended a civil penalty of $122.00. The Office 

of the Solicitor will agree to settle for a civil penalty 

of $100.00 because no gross negligence can be proven. 

11. Citation No. 322390 issued citing 30 CFR 75.604 

because Inspector Clevinger observed three permanent 

splices in the trailing cable to a roof bolting machine 

which had not been effectively insulated against water. 

Gravity: The mine is wet so an arc could have 

occurred or a shock or burn resulted to a miner. See the 

inspector's statement, Appendix I. 

1408 
Negligenc~: The Mine Operator was in the mine that 

shift so he should have seen smoke rising from each of the 

three breaks in the cable. The violation was intentional. 

Abatement: The condition was abated within the time 

provided which demonstrates a normal degree of good faith. 

Penalty: The Office of Assessments recommended a 

civil penalty of $114.00 and the Office of the Solicitor 

would not be ~illing to reduce this proposed civil penalty 

in view of the intentional nature of the violation. 

In view of the reasons given above by counsel for MSHA 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. 

In view of the fact that the transcript in this case was not 

received until more than 30 days after it normally should have been 

received, it appears that payment of the penalty within 60 days 

after the date of this decision will comply with the settlement 

agreement. 

ORDER 

Accordingly, IT IS ORDERED that the proposed settlement, as outlined above, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that Respondent, within 60 days of the date 

of this decision, pay the agreed-upon penalty of $590 assessed in this 

proceeding. 

Distribution: 

/ ~--;iii John F. Coo<. 

1Administrative Law Judge ---./ 

John H. O'Donnell, Esq., Office of the Solicitoi, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

John R. Lark, Secretary-Treasurer, Beth Ann Coal Corporation, 

Drawer NN, Big Rock, VA 24603 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

1409 
FEDERAL MINE SAF[TY 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. 

FLAT TOP MINING, INC., 

Respondent 

SEP 2 6 1979 

Civil Penalty Proceeding 

Docket No. PIKE 79-29-P 

Assessment Control 

No. 15-10331-03001 

No. 6 Surface Mine 

DEFAULT DECISION 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Before Administrative L.aw Judge Steffey 

When the hearing in the above-entitled proceeding was convened in 

Pikeville, Kentucky, on August 10, 1979, pursuant to a written notice of 

hearing dated June 19, 1979, and received by respondent on June 29, 1979, 

counsel for the Mine Safety and Health Administration entered his appearance, but no one appeared at the hearing to represent respondent. 

Section 2700.63(a) of the CollDllission's Rules· of Procedure which became 

effective on July 30, 1979, provides that when a party fails to comply 

with an or4er of a judge, an order to show cause shall be directed to the 

party before the entry of any order of default. An order to show cause was 

sent to respondent on August 14, 1979, pursuant to 29 CFR 2700.63(a). 

Respondent filed on August.30, 1979, a reply to the show-cause order stating 

that it had overlooked the hearing date because of some perso~nel changes. 

Respondent concluded that it was at fault in failing to appear at the hearing and submitted a check in the amount of $1,465.00 which was the total 

of.the civil penalties proposed by the Assessment Office for the seven 

violations alleged in MSHA's Petition for Assessment of Civil Penalty. 

At the hearing, the inspector who wrote the citations which support 

MSHA's Petition for Assessment of Civil Penalty testified that Citation 

No. 72833 which he issued on March 15, 1978, alleging a violation of 

30 CFR 77.1302(a) had been issued in error. At the time Citation 

No. 72833 was issued, it was MSHA's policy to cite a violation of 

Section 77.1302(a) if a vehicle used to haul blasting agents lacked a 

non-sparking lining inside the space used to haul blasting agents. The 

inspector stated that subsequent to March 15, 1978, MSHA changed its 

interpretation of Section 77.1302(a) to permit the transportation of 

1410 
MSHA v. Flat Top, .Docket No. PIKE 79-29-P (Contd.) 

blasting agents, as opposed to actual explosives, in an unlined compartment. The inspector stated that he believed Citation No. 72833 should 

be vacated because it had alleged a violation of Section 77.1302(a) 

under a factual situation which is no longer considered to be a violation 

of Section 77.1302(a) (Tr. 8-10). 

The inspector's vacation of Citation No. 72833 had the effect of 

making it unnecessary for respondent to pay the penalty of $345.00 which 

had been proposed by the Assessment Office for the violation of Section 77.1302(a). I have discussed respondent's overpayment with an 

employee who works in the Assessment Office and he has indicated that 

respondent's payment of $345.00 with respect to Citation No. 72833 

will be refunded. Therefore, the order accompanying this decision will 

dismiss MSHA's Petition to the extent that it seeks assessment of a 

penalty for an alleged violation of Section 77.1302(a) with respect to 

Citation No. 72833. The order will also recognize that penalties 

totaling $1,120.00 proposed by the Assessment Office for the remaining 

six violations have already been paid by respondent. 

I find respondent to be in default for failure to appear at the hearing held on August 10, 1979. Section 2700.63(b) of the Conunission's 

Rules of Procedure provides that if a judge finds a respondent to be in 

default, he shall enter a sununary order assessing the proposed penalties 

as final. 

WHEREFORE, it is ordered: 

(A) For the reasons given above, MSHA's Petition for Assessment of 

Civil Penalty filed in Docket No. PIKE 79-29-P is dismissed to the extent 

that it seeks assessment of a civil penalty for a violation of 30 CFR 77.1302(a) 

with respect to Citation No. 72833. 

(B) If the penalty of $345.00 proposed by the Assessment Office 

for the violation of Section 77.1302(a) referred to in paragraph (A) 

above, has not already been refunded to respondent, that amount should be 

refunded within 30 days from the da.te of this decision. 

(C) Respondent's obligation to pay civil penalties totaling 

$1,120.00 has already been satisfied by its submission on August 20, 1979, 

of Check No. 4604 dated August 28, 1979, in the amount of $1,465.00, 

of which $345.00 has been or will be refunded. 

1411 
MSHA v. Flat Top, Docket No. PIKE 79-29-P 

The penalties totaling $1,120.00 which respondent has already paid 

are allocated to the respective violations as follows: 

Citation No. 72821 3/13/78 § 

Citation No. 72824 3/13/78 § 

Citation No. 72825 3/13/78 § 

Citation No. 72829 3/13/78 § 

Citation No. 72831 3/15/78 § 

Citation No. 72832 3/15/78 § 

Total Penalties in This 

Distribution: 

77 .1606 (c) ................ $ 160.00 

77 .1605 (a) ................ 140.00 

77 .1110 . .................. 140.00 

77 .1302 (£) ................ 305.00 

77 .1301 (b) . ............... 195.00 

77 .1301 (c) (9) . ............ 180.00 

Proceeding ................ $1,120.00 

~~ C. r;Jb.,~,, Richard C. Steffey P--~c;rAdministrative Law Judge 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Flat Top Mining, Inc., Attention: Lowell Pennington, Secretary/ 

Treasurer, 2230 Idle Hour Building, Room 206, Lexington, KY 

40502 (Certified Mail) 

1412 
FEDERAL MINE SAFETY AND HEALTH REVlr=:W COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 2 6 1979 

DISCIPLINARY PROCEEDING No. D-79-2 

DECISION 

Before: Judge Merlin 

The above-captioned matter came on for consideration as scheduled 

on September 19, 1979. After hearing from those involved, I rendered 

the following bench decision: 

This case is a disciplinary proceeding which is 

being heard pursuant to the Commission's order dated 

August 20, 1979. This matter was referred to the Commission on July 27, 1979., by Administrative Law Judge 

George A. Koutras, for possible disciplinary proceedings due to the failure of counsel to appear at a hearing in two penalty cases styled Secretary of Labor v. 

CO-OP Mining Company, DENV 79-128-P and DENV 79-129-P. 

The parties through their counsel did not appear because 

counsel had agreed between themselves to settle these 

cases. However, they did not advise the administrative 

law judge sufficiently in advance of the hearing so that 

his approval of the proposed settlement could be obtained. 

The operator's counsel eventually entered an appearance 

at the hearing after being personally contacted at least 

twice by Judge Koutras, once after the hearing was scheduled to begin. The Solicitor entered no appearance. 

By letter dated August 24, 1979, addressed to Judge 

Koutras, the Associate Regional Solicitor accepted full 

responsibility for what had occurred and extended a full 

apology. In addition, the attorney in the Solicitor's 

office, who had failed to appear in the two penalty 

cases, wrote to Judge Koutras on August 24, 1979, apologizing for his conduct. 

On September 10, 1979, the Regional Solicitor filed 

a motion for summary disposition of these proceedings 

stating that both the Associate Regional Solicitor and 

the particular attorney involved had been personally 

1411 
reprimanded by the Regional Solicitor and by the Solicitor. The Associate Regional Solicitor attached to his 

motion a copy of a memorandum to all regional solicitors 

from the Solicitor dated September 10, 1979, stating, 

inter alia, that failure or refusal by an attorney in the 

Solicitor's Office to appear at a hearing before an 

adjudicative officer, such as an administrative law judge 

of any tribunal before which the Solicitor practices, or 

any other conduct disrespectful to such officer, is a 

fundamental violation of Solicitor-office policy, which 

will not be tolerated. The Solicitor's memorandum further 

sets forth that she considers this a very serious matter 

and that failure to adhere to stated policy could result 

in an attorney's dismissal. On September 10, I denied the 

motion for summary disposition. 

At the hearing this morning, the Regional Solicitor, the Associate Regional Solicitor, and the attorney 

involved, again apologized. In addition, counsel for the 

operator also has apologized. I accept these apologies. 

Counsel for the operator has supported the Solicitor's representations that the Solicitor did not exercise any coercion upon him with respect to his conduct. 

I accept these representations, and I find there was no 

coercion. 

I also take note of the Solicitor's memorandum 

dated September 10, 1979. However, I do not believe 

this occasion should pass without a statement from 

me on behalf of the Commission with respect to what 

has transpired and what is involved in this situation. 

The Commission and its judges have been charged by 

Congress with the responsibility of hearing and deciding 

cases under the Federal Mine Safety and Health Act of 

1977. As the Solicitor's memorandum of September 10 now 

recognizes, the Solicitor's attorneys have an obligation 

to comply with orders of the Commission and its judges. 

In particular, there is no excuse for defying an administrative law judge by failing to comply with a specific 

order to appear at a hearing. The absolute necessity 

for the Solicitor and the operator's counsel to comply 

with notices of hearing and other orders issued by 

administrative law judges of the Commission is rendered 

even more urgent by the stringent circumstances under 

which the Commission and its judges operate. The Commission has, at present, only 15 judges who are located 

in Arlington, Virginia. The Commission soon will have 

two more administrative law judges located in Denver. 

1414 
In order to dispose of the growing number of cases which 

come on for hearing under the Act, the judges of the 

Commission, who are so few in number, must travel widely 

and establish precise hearing schedules well in advance. 

The schedule of Judge Koutras, an individual of 

undoubted diligence, during the weeks in question graphically illustrates the point. On July 10, he heard a case 

in Spokane, Washington. On July 11 and 12, he heard 

cases in Wallace, Idaho. On July 17, he heard a case in 

Helena, Montana. The subject penalty cases were scheduled 

for hearing in Salt Lake City on July 19 and the notices 

of hearing for them were issued 3 months in advance. Only 

with such planning and only with such schedules can the 

Commission, through its judges, discharge its statutory 

responsibilities of hearing and deciding all the cases 

that come on for hearing. Obviously, neither the Solicitor 

nor any operators' counsel can be allowed to frustrate or 

thwart the Commission's fulfillment of its statutorilyimposed obligations by conduct such as occurred in this 

case. Nothing less than the efficient enforcement of the 

Mine Safety and Health Act is at stake. 

There is an additional matter involved which must 

be discussed. The failure of counsel to appear at the 

hearing and otherwise comply with Judge Koutras' orders 

were due to the fact that they did not understand the 

crucial role which the 1977 Act gives administrative 

law judges in settlement cases. Under the 1977 Act, it 

is not enough for the parties themselves to agree upon 

a settlement. Section llO(k) specifically provides that 

no proposed penalty shall be compromised, mitigated, or 

settled, except with the approval of the Commission. 

Accordingly, administrative law judges must approve any 

settlement. Without the judge's appr~val, there is no 

settlement. Indeed, without the judge's approval, 

there is nothing. Therefore, not only was it improper 

as a matter of attorney conduct and courtesy for counsel 

not to appear before Judge Koutras as he had ordered; 

but, in addition, because he had not given his approval 

to the proposed settlement, there was no settlement, 

and, therefore, counsel should have been prepared to 

go to hearing on the designated date. The legislative 

·history of the 1977 Act makes clear that Congress was 

dissatisfied with the performance of the Department of 

Interior in settlement cases under the prior 1969 Act. 

Under that statute, approval by administrative law · 

judges was not necessary for settlements. The judges 

of the independent Commission were injected four-square 

into the settlement process by the 1977 Act in order, in 
the ·words of the Senate Report, to assure that abuses 

involved in the unwarranted lowering of penalties as a 

resul~ of off-the-record negotiations be avoided and 

that the public interest be adequately protected before 

approval of any reduction in penalties. Senate Report 

No. 95-181, p. 45. 

Conduct of counsel in this case, as well as the 

statements of the operator's counsel at the hearing 

before Judge Koutras, demonstrate an unfortunate lack 

of understanding of the judge's role in settlement 

cases under the 1977 Act. There was also a failure to 

appreciate that last-minute settlement agreements reached 

only between the parties are insufficient where the judge 

is not afforded adequate time in advance of the hearing 

to review the matter and determine if his approval is 

warranted. In this respect, counsel have to be aware of 

the long and difficult hearing schedules followed by the 

judges. Counsel have to be aware of the logistics as well 

as the legalities of the process. I hope that in addition 

to instructing her attorneys that they must appear in 

accordance with orders from administrative law judges, the 

Solicitor also will instruct her attorneys as to how 

settlements must be handled under the law. 

It is disturbing that at the hearing before Judge 

Koutras, the operator's counsel did not understand that 

the Commission is a wholly separate and independent entity 

from the Department of Labor. However, some of the Solicitor's own attorneys appear at times to operate under the 

same misapprehension. It should not be necessary ·at this 

late date to tell attorneys who practice under the Act 

that the House version of the 1977 Act gave all enforcement responsibility, including hearings, to the Secretary 

of Labor, whereas the Senate bill established an independent Commission with five Commissioners appointed by the 

President. Having been given the choice, Congress enacted 

the Senate version which became the law and is now the 

1977 Act. Accordingly, the Commission is entirely separate 

from the Secretary of Labor and from the Solicitor of 

Labor. The enforcement and adjudicatory functions in mine 

safety and health have been separated. The Conimission is 

answerable to Congress, not to the Secretary of Labor. It 

should not be necessary at this late date to set forth 

such fundamentals to attorneys who practice under the Act, 

but I do so now because it is apparent that ignorance of 

such basics still exists. 

It is my hope that the conduct of the Sol{citor's 

attorney and operator's counsel in this case will never 

1416 
occur again. I recognize, as do all the judges of the 

Commission, that the Solicitor has delegated much authority to her regional solicitors. The internal organization 

of the Solicitor's office is solely a matter for her 

determination. However·, attorneys in all the Solicitor's 

regional of fices should understand that they are bound to 

follow orders of the administrative law judges of the 

independent Commission and they should understand how the 

settlement process is designed to operate under the 1977 

Act. Conduct such as has occurred in this case cannot be 

tolerated by the Commission and if repeated will inevitably 

result in disciplinary proceedings and disciplinary sanctions against the individual attorneys involved with all 

the adverse consequences such proceedings and actions may 

entail. 

Finally, this case demonstrates the wisdom of having 

a regulation authorizir.g a judge to exercise disciplinary 

authority in appropriate instances. Because of this 

regulation, the administrative law judge in this case was 

not left powerless to deal with the situation which made 

discharge of his statutory duty difficult, if not impossible. The Commission in considering the matter and then 

referring it to the Chief Judge or his designee, in accordance with section 2700.80 of the regulations, demonstrated its awareness and sensitivity to the problems 

encountered by the judge in this instance. Moreover, 

under the regulation, the time lapse involved in referring 

this matter to the Commission, then referring it back to 

the Chief Judge, and lastly in setting a hearing, although 

only a short period of time, afforded those involved, and, 

most particularly, the Solicitor herself, the opportunity 

to consider the matter and take appropriate action including, as set forth above, her personal reprimand of the 

attorneys involved and the memorandum to all attorneys as 

well as the written apologies to Judge Koutras. Accordingly, under the procedures set forth in the regulations, 

the problem has been recognized while at the same time 

precipitate action by the Commission against the individuals involved has been rendered unnecessary. 

Hopefully, because of the action already taken by 

the Solicitor and in light of the comments I have made 

here today, the matter has been completely resolved with 

better enforcement of the Act as the result. As previously sta~ed, I accept the apologies, both written and 

oral, of all counsel involved. In addition, as already 

stated, I take note of the Solicitor's memorandum dated 

September 10, 1979. 

14~I 
In view of the complete nature of the apologies, 

in light of the Solicitor's memorandum, and since this 

is the first time such a situation has arisen, I determine that no disciplinary proceedings are warranted. 

Therefore, it is hereby ordered that no action whatsoever be taken and that these proceedings be and are 

hereby dissolved. 

The bench decision is 

Assistant Chief Administrative Law Judge 

Distribution: 

James L. Abrams, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Tedrick A. Housh, Jr., Regional Solicitor, U.S. Department of 

Labor, Room 2106, 911 Walnut Street, Kansas City, MO 64106 

(Certified Mail) 

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

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Thomas A. Mascolino, Assistant Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Morell E. Mullins, Associate Solicitor, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

Carl E. Kingston, Esq., 53 West Angelo Avenue, Salt Lake City, 

UT 84115 (Certified Mail) 

Honorable Carin A. Clauss, Solicitor of Labor, U.S. Department 

of Labor, 200 Constitution Avenue, NW., Washington, DC 

20210 (Certified Mail) 

Administrative Law Judge George A. Koutras, Office of 

Administrative Law Judges, Federal Mine Safety and Health 

Review Commission, 4015 Wilson Blvd., Arlington, VA 22203 

1418 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 2 6 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DAVIS COAL COMPANY, 

Respondent 

Docket No. WEVA 79-25 

A/O No. 46-02208-03005 

Marie No. 1 Mine 

DECISION APPROVING SETTLEMENT 

AND 

ODERING PAYMENT°""OF CIVIL PENALTY 

Appearances: Barbara Krause Kaufm~nn, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Paul E. Pinson, Esq., Williamson, West Virginia, for 

Respondent. 

Before: Judge Cook 

A petition for assessment of civil penalty was filed pursuant 

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

(Act) in the above-captioned proceeding. An answer was filed and a 

prehearing order was issued. Subsequent thereto, Petitioner filed a 

motion requesting approval of settlement and for dismissal of the 

proceeding. 

Information as to the six statutory criteria contained in section 110 of the Act has been submitted. This information has provided a full disclosure of the nature of the settlement and the basis 

for the original determination. Thus, the parties have complied with 

the intent of the law that settlement be a matter of public record. 

An agreed settlement has been reached between the parties in the 

amount of $326.30. The assessment for the alleged violations was 

$3,263. 

The alleged violations and the settlement are identified as 

follows: 

1419 
30.CFR 

Citation No. Date Standard Assessment Settlement 

7-0044 7/18/77 70.508 $180 $18.00 

23226 4/21/78 77 .1107 240 24.00 

9910140 7/19/78 70.508 106 10.60 

9910248 8/28/78 70.212 84 8.40 

26321 10/5/78 75.200 470 47.00 

26028 10/12/78 75.603 160 16.00 

26252 10/25/78 77 .410 150 15.00 

26253 10/25/78 77 .400(c) 210 21.00 

26254 10/25/78 77 .202 130 13.00 

26255 10/25/78 77 .504 84 8.40 

26256 10/25/78 77 .505 98 9.80 

26257 10/25/78 77 .410 170 17.00 

26258 10/25/78 77. 701 150 15.00 

26259 10/25/78 77 .506 150 15.00 

26260 10/25/78 77.505 98 9.80 

26881 10/25/78 77 .502 84 8.40 

26882 10/25/78 77.800-2 106 10.60 

26884 10/25/78 77 .410 395 39.50 

26885 10/25/78 77 .J 109(c) (1) 84 8.40 

26886 10/25/78 77 .1104 114 11.40 

The Petitioner makes the following representations as relates to 

the statutory criteria of negligence, gravity and good faith: 

30 CFR Good 

Citation No. Standard Gravity Negligence Faith 

7-0044 70.508 nonserious ordinary normal 

23226 77 .1107 serious ordinary normal 

9910140 70.508 serious ordinary normal 

9910248 70.212 serious ordinary normal 

26321 75.200 serious ordinary normal 

26028 75.603 serious ordinary normal 

26252 77.410 serious ordinary normal 

26253 77 .400 serious ordinary normal 

26254 77 .202 serious ordinary normal 

26255 77 .504 serious ordinary normal 

26256 77.505 serious ordinary normal 

26258 77. 701 serious ordinary normal 

26259 77.506 serious ordinary normal 

26260 77 .505 serious ordinary normal 

26881 77.502 nonserious ordinary normal 

26882 77 .800-2 serious ordinary normal 

26884 77.410 serious ordinary normal 

26885 77.110-0l[sic] serious ordinary normal 

26886 77 .1104 serious ordinary normal 

1420 
As relates to Citation No. 26257, information submitted by the 

Petitioner reveals that the alleged violation was caused by ordinary 

negligence, that it was of moderate gravity, and that the Respondent 

demonstrated good faith in attempting rapid abatement. 

Information submitted by the Petitioner also reveals that the 

Respondent's size is rated at 111,516 tons of coal per year. The 

Respondent's history of previous violations is rated at five assessed 

violation points for each citation, and eleven inspection day points 

as relates to all .citations except Nos. 7-0044 and 9910140, which are 

rated at twelve inspection day points each. 

The Petitioner advances the following justifications in support 

of the proposed settlement: 

* * * * * * 

3. A reduction from the original assessment is warranted in view of the detriment on the operator's ability 

to continue in business which would result from payment of 

a greater penalty amount. 

Respondent's financial condition is precarious. From 

1972 through 1975, Davis suffered losses which it was able 

to carry forward to 1976. By doing this it was able to 

reduce the amount of tax payable on its 1976 profit of 

$190,008 (see Exhibit A). That, however, was the last 

profit made by Davis. 

* 

In 1977 Davis was closed for approximately eight months 

due to floods and strikes. It lost $332,548 (see Exhibit 

B). In 1978 Davis was closed for six months due to strikes 

at the Norfolk and Western Railroad and by the United Mine 

Workers of America. The Respondent's unofficial corporate 

balance sheet, dated September 30, 1978, shows an operating loss of $848,860.57, (See Exhibit C, page 3). The 

balance sheet dated May 31, 1979, shows an operating loss, 

in the first five months of the year of $271,903.04 (See 

Exhibit D). 

Davis has been able to stay in business only through 

the recent acquisition of a long term loan from Pikeville 

National Bank and Trust. It has used the money from the 

loan to pay its immediate obligations and thus, prevent 

default on the loans for its mining equipment. Davis is 

now operating solely on borrowed capital. Additional 

liabilities in the form of the proposed civil penalties 

will have an adverse effect on Davis's ability to meet its 

short term obligations and operating expenses and thus to 

stay in business. 

1421 
Respondent is currently in the process of applying to 

FHA (through Pikeville National Bank and Trust Company .of 

Pikeville, Kentucky,) for a loan with which to pay its 

current obligations. The owners of Davis are pledging to 

the government as collateral for this loan all the corporate stock in Davis and in its sister corporation, Burning 

Springs,_ Collieries Company, Inc., as well as all equipment 

and interest in real estate held by both corporation [sic]. 

As Davis' financial condition approaches bankruptcy at~­

this time, this loan is necessary to the continued existence of ~he mining operation. 

The Board of Mine Operations Appeals discussed the 

penalty criteria of the Coal Act which were identical to 

that of the Mine Act and concluded as follows: 

••• the intent of Congress was to give the 

Secretary great latitude in the assessment of 

monetary penalties so as to permit him to weigh 

the equities and render justice on a case-bycase basis • • • We believe Congress intended a 

balanced consideration of all statutory factors, 

including the size of the mine and the ability 

to [remain] in business to permit assessments 

which would be equitable and just in all situations ••• Robert G. Lawson Coal Company, 

1 IBMA 115, 118 (1972). 

Thus, penalties set under the Act may be tailored to 

the financial circumstances of each violator. This is not 

to say that financial difficulties automatically require 

major reduction in proposed penalties. All of the statutory criteria must be considered. Should a violation pose 

grave risks of clear and reckless negligence, reduction 

based upon financial hardship would be difficult to justify. However, the Secretary believes that the circumstances under which Davis found itself were dire enough 

to warrant the proposed settlement and the record revealed 

no extraordinary culpability or gravity of the violations 

which would have precluded the operator from receiving full 

consideration of his financial difficulties. 

All citations involved in this matter except 7-0044 

were issued under Section 104(a) of the Act. No. 7-0044 

is a 104(b) Notice issued under the 1969 Act. Copies of 

the inspe~tor's statements and the proposed assessment are 

attached hereto. 

* * * * * * * 

1422 
The Secretary contends that the proposed settlement 

amount of $326.30 is sufficient under the circumstances to 

induce not only compliance with the Act, but also to allow 

Davis to continue mining. The proposed settlement properly 

balances the public interest which underlies the mandatory 

penalty provisions, the penalty criteria, and the settlement 

approval provisions of the Mine Act. 

In view of the reasons given above by counsel for the Petitioner 

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. 

ORDER 

Accordingly, IT IS ORDERED that the proposed settlement, as outlined above, be, and hereby is APPROVED. 

IT IS FURTHER ORDERED that Respondent, within 30 days of the 

date of this decision, pay the agreed-upon penalty of $326.30 

assessed in this proceeding. 

Law Judge 

Distribution: 

Barbara Krause Kaufmann, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480, Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Paul E. Pinson, Esq., P.O. Box 440, Williamson, WV 25661 

(Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

1423 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 2 6 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CENTRAL PRE-MIX CONCRETE 

COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. DENV 79-220-PM 

A.O. No. 45-00593-05001 

Fort Wright Pit Mine 

Docket No. DENV 79-221-PM 

A.O. No. 45-00594-05001 

Yardley Pit Mine 

DECISIONS 

Appearances: Marshall P. Salzman, Trial Attorney, U.S. Department of Labor, Office of the Regional Solicitor, 

San Francisco, California, for the petitioner; 

Richard M. Rawlings, Spokane, Washington, for the 

respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil penal ties filed by the petitioner against the respondent on January 18, 

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

Act of 1977, 30 u.s.c. § 820(a), charging the respondent with a total 

of five alleged mine safety violations issued pursuant to the Act and 

implementing safety standards. Respondent filed timely answers in the 

proceedings and requested a hearing regarding the proposed civil penalties initially assessed for the alleged violations. A hearing was 

held in Spokane, Washington, on July 10, 1979. The parties waived 

the filing of posthearing briefs, and the arguments presented on the 

record at the hearing have been considered by me in the course of 

these decisions. 

Issues 

The issues presented in these proceedings are (1) whether respondent has violated the provisions of the Act and implementing regulations as alleged in the proposal for assessment of civil penalties, 
and, if so,- (2) the ~ppropriate civil penalties that should be assessed 

for each proven citation, based upon the criteria set forth in section 

llO(i) of the Act. Additional issues raised by the parties are discussed in the course of these decisions. 

In determining the amount of a civil penalty assessment, section llO(i) of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the 

appropriateness of such penalty to the size of the business of the 

operator, (3) whether the operator was negligent, (4) the effect on 

the operator's ability to continue in business, (5) the gravity of 

the violation, and (6) the demonstrated good faith of the operator 

in attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 801 ~seq. 

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

3. The Commission's rules and procedures concerning mine health 

and safety hearings, 29 CFR 2700.1 et seq. 

Stipulations 

The parties stipulated as to the Commission's jurisdiction and 

the fact that the citations in both dockets were in fact issued on 

the dates indicated and that they were duly served on the respondent. 

Further, the parties stipulated that the respondent is a small-tomedium-sized sand and gravel operator, has no prior history of violati9ns under the Act, and that the imposition of civil penalties will 

~~i.impair its ability to remain in business (Tr. 5-6). 

DISCUSSION 

Docket No. DENV 79-221 

The proposal for assessment of civil penalty filed in this docket 

pertains to two citations issued by MSHA inspector James Arnoldi on 

August 9, 1978, citing the respondent with violations of the provi-

_,lo~i 30 CFR 56.14-1. Citation No. 347026 charges that the tail 

pulley of the conveyor from the culvert-lined tunnel was not guarded. 

Citation No. 347027 charges that the tail pulley at the concrete-lined 

tunnel was also not guarded. 

, _ Pet_itioner' s Testimony and Evidence 

MSHA inspector James Arnoldi testified that the Yardley Pit Mine 

is a sand and gravel operation where material is mined by a stationary 

1425 
dragline and transported by conveyor belts to the crusher and screening areas and from there to the stockpile. He confirmed that he 

inspected the tail pulley of the belt conveyor from the culvert-lined 

tunnel, which is a covered, corrugated metal short tunnel. The tail 

pulley itself was a movable machine part and it was not guarded. He 

believed a person could possibly come in contact with the unguarded 

tail pulley, and that that person would be someone who would be there 

for cleanup or maintenance. The dragline operator would not, however, 

leave his machine. The inspector indicated that if someone were 

caught in the unguarded pulley, he could lose an arm or leg or be 

mangled. The pulley was about 18 inches or 2 feet off the ground and 

a walkway was alongside the conveyor. The unguarded pulley was in 

plain sight and the operator should have known about the condition. 

Employees were not working in the area when he observed the condition. 

The condition was abated within the time permitted (Tr. 7-11). 

On cross-examination, Inspector Arnoldi indicated that the operator does instruct employees not to enter the tunnel area while the 

belts are in operation (Tr. 12). In response to bench questions concerning the abatement, petitioner's counsel stipulated that the citation was terminated within the time specified (Tr. 13). Inspector 

Arnoldi stated that while the operator does not permit his employees 

to work in or around unguarded pulley areas, the fact is that employees do not always heed these instructions and are constantly getting 

caught in unguarded pulleys, and MSHA accident reports bear this out 

(Tr. 14). 

Inspector Arnoldi testified that he considers an unguarded pulley 

to be a hazard if there is access to it and a person can reach into 

it or get caught in it, even though an operator has lock-out procedures and instructs employees not to go near the equipment while it 

is in operation. The inspector stated that the location of the tail 

pulley in question was at a place where employees would not normally 

pass by on a regular basis, that it was located in an isolated~p}ace, 

and that the area in question was part of the material transportation 

system. Furthermore, no one is stationed there at all times to maintain the belt. He was influenced to issue the citation because he 

is obligated to enforce the standard and the fact that MSHA's accident reports indicate that people are being caught in pulleys •.. The 

location of the pulley would dictate when he would cite a violation 

of section 56 .14-1 (Tr. 14-16). Based on his observation of .. the tail 

pulley and his experience, if an employee were in the area he. might 

come in contact with the unguarded tail pulley and be injured (Tr. 

16) •· 

Regarding the unguarded tail pulley at the concrete-lined .tunnel, 

Inspector Arnoldi confirmed that it was unguarded and that emplo-yees 

normally do not work in the area. Cleanup and maintenance employees 

could possibly come in contact with the unguarded tail pulley.. .This 

pulley was also 18 inches to 2 feet off the ground and presented the 

1426 
same hazard i;ts the other citation. The likelihood of an accident was 

very small, ·but the result would be the same as the other citation, and 

the condition was in plain view (Tr. 17-18). Although the inspector 

agreed that the tunnel was in a remote area, the shift foreman or personnel in that area should have been aware of the unguarded pulley 

(Tr. 20). 

In response to bench questions, Inspector Arnoldi indicated that 

while the mine had been previously inspected by MESA, his inspection 

was his first time at the mine under MSHA. Although Mr. Arnoldi 

indicated that his inspector's statement must have been based on his 

looking at previous inspection reports indicating previous citations 

of the same safety standard, he has never cited the same standard · 

since this was his first inspection of the mine, He cited the violations because at some time someone would go to the location of the 

exposed pulleys and possibly get caught in them (Tr. 22). The pinch 

points would be some 6 inches inside the belt frames, and while the 

frames provided some protection, they were inadequate for this purpose (Tr. 23). 

Respondent's Testimony and Evidence 

Richard M. Rawlings, safety ~irector, testified that he accompanied Inspector Arnoldi during his inspection, and he discussed the 

citations and the pulleys with Mr. Arnoldi. With regard to the 

culvert-lined tunnel, Mr. Rawlings indicated that the entrance was 

was protected with a chain and a "Do Not Enter" sign, and employees 

were instructed not to enter the tunnel while the belt was in operation. He indicated that this was satisfactory to other MESA inspectors during prior inspections. As for the second tunnel, there was 

no chain or sign at that location, but he could not recall discussing this location with Mr. Arnold (Tr. 25-27). 

On cross-examination, Mr. Rawlings indicated that if someone were 

standing right next to the pulleys, he could see that they were not 

guarded. A foreman is in charge of the tunnel facility and management 

personnel, including himself, would be responsible for inspecting the 

equipment to see that pulleys are guarded. He did not believe the 

conditions cited were dangerous, and indicated that the company had 

' previously been cited for violations of the same standard at other 

facilities. If an employee disregarded instructions and performed 

maintenance or other work while the pulley was moving, 'he could get 

hurt (Tr. 27-29). 

In response to bench questions, Mr. Rawlings stated that some 

pulley locations at the Yardley Pit Mine location are guarded and the 

··· circumstances of their location, including whether there is a lot of 

· ··'foot traffic nearby, dictate whether guards should be installed and 

he makes these determinations himself. The factors he considers 

include how often employees are required to be in the area and 

1427 
whether chains or signs are posted (Tr. 30). Wire mesh guards were 

fabricated·and installed to abate the citations. The tail pulleys 

are greased once a week, and once every month or two material is 

cleaned out of the pulleys. Employees are not in the area when the 

belts are running. Greasing is done before the belts are started 

and cleanup is done while the belts are off. There is no standard 

procedure or lock-out system when this work is done. If someone were 

cleaning the belt while it was running, they could be in violation 

of company rules, and he did not know whether greasing is done while 

the belt is running (Tr. 31-33). The pulleys at the other end of the 

belt are 20 feet high where the material dumps off the end of the 

belt; there is no walkway there, and they are not guarded (Tr. 31). 

Petitioner's Arguments 

Petitioner argued that the pulleys cited were in fact not 

guarded, and contrary to the ones at the other end of the belts, they 

could be contacted by persons in the area. Although the chances of 

someone contacting them may be remote, the standard speaks in terms 

of "may be contacted," and in the circumstances presented here, the 

chances are not so remote that the term "may be contacted" loses its 

meaning (Tr. 34). 

Respondent's Argument 

Respondent argues that the culvert-lined tunnel was guarded by 

a chain and sign and that employees are instructed not to enter the 

area. Furthermore, the inspector stated that the chances of an accident occurring at this location were remote or improbable. As for 

the concrete-lined tunnel, while there was no chain or sign, two 

boards were blocking the entrance. Although one person does go to 

the tunnel once a week to grease the pulleys, no one is there when 

the belt is running (Tr. 35-36). Respondent indicated that guards 

would have been provided if the inspector had pointed out the. n~ed 

for them, but respond.ent simply did not feel that guards were' .· -

required because of the locations of the pulleys (Tr. 42). 

Docket No. DENV 79-220 

Petitioner moved to dismiss Citation No. 347030, August 16, 1978, 

30 CFR 56.14-1, on the ground that it could not sustairi its burdep.of 

proof as to the fact of violation. The motion was granted and the 

petition for assessment of civil penalty as to that alleged violation 

is d~smissed (Tr. 44). -

The two remaining citations are as follows: 

Citation No. 347209, August 16, 1978, 30 CFR 56.14-1, charg~~·" 

that ''the guard on the 'V' belt drive at the raw crusher was noi 

adequate. It dia not extend low enough to protect personnel from 

the pinch point." 

1428 
Citation. No. 347031, August 16, 1978, 30 CFR 56.12-32, charges 

that 11 the electric motor inside the long concrete lined conveyor 

tunnel did not have a cover plate." 

Petitioner's Testimony and Evidence 

Inspector Arnoldi confirmed that he inspected the Fort Wright 

facility in August 1978, and he described the operation as a sand and 

gravel pit where materials were loaded with end loaders, transported 

to a hopper, and then fed on a conveyor for transportation to a 

crusher where it is sized and transported by belts to various stockpiles. The V-belt raw crusher was not adequately guarded because i~ 

did not come down low enough to cover the drive pinch point. The belt 

and pulley was a movable machine part. The crusher operator worked 

in the area and he would be in danger of getting caught in the pinch 

point. A walkway was alongside the pulley within a few inches from 

the unguarded moving machine part. Although he could not recall how 

high off the ground the pinch point was located, he would estimate 

it was 2 or 3 feet and not overhead. The respondent should have 

known the pulley was unguarded because supervisors were in the area 

and the area was in the open at the main crusher. The citation was 

abated within the allotted time ar,d if someone were caught in the 

pinch point, they could get their arm or leg mangled or torn off 

(Tr. 44-47). The pull wheel for the V-belt drive was guarded, but 

the bottom of the drive wheel, where the pinch point was located, 

was not (Tr. 48). 

In response to bench questions, Inspector Arnoldi indicated that 

an 8- to 10-inch area was unguarded and that the crusher operator 

would be traveling back and forth in the area several times during 

a shift, and the walkway was alongside the pulley just inches away. 

He observed the crusher operator there at the time the citation issued 

and the crusher was running. Abatement was achieved by installing a 

screen over the exposed pulley area (Tr. 49~51). 

Regarding the missing cover plate citation, Inspector Arnoldi 

confirmed that the motor in question did not have a cover plate. The 

motor was some 2 feet long and 18 inches high. The motor junction 

box cover was missing and someone could possibly have gotten into it 

·and this posed a shock hazard in the event of poor spli_cing. The 

uncovered area was 4 inches by 4 inches, and the wires inside the box 

were spliced, insulated, and wrapped. The insulation would not wear 

out and there was no danger to exposed insulated wires. The danger 

presented was the possibility of someone working around the exposed 

box and getting a hand tool in the open box and breaking the splices 

or contacting the conductor. The box was in plain view, supervisors 

were in the area, and the condition should have been observed. He saw 

no one working in the area, but somebody would have occasion to work 

there cleaning, greasing, or performing maintenance using a shovel, 

1429 
grease gun, or water to wash out the tunnel and this would add to the 

shock hazard. A cover was put on the box within the time fixed for 

abatement (Tr. 57-55). 

Respondent's Testimony and Evidence 

Respondent presented pictures of the location and equipment which 

were cited (Exhs. R-1 and R-2; Tr. 58). Mr. Rawlings stated that he 

believed the guard which was installed on the V~belt was adequate. 

Although someone could get their pants' legs caught in the bottom 

pulley, they would have to be on their knees to get an arm or hand 

caught. The violation was abated the same afternoon that it was 

issued and the area in question was not an area where people walked 

through (Tr. 60). 

As for the cover plate, Mr. Rawlings stated it too was abated 

the same afternoon and that employees were not exposed to any hazard 

since they would have to break the insulation on the splices to be 

exposed to any hazard (Tr. 60-61). 

Findings and Conclusions 

Docket No. DENV 79-221-PM 

Fact of Violation--Citation Nos. 347026 and 347027, 30 CFR 56.14-1 

Respondent is charged with two violations of the provisions 

of 30 CFR 56.14-1, which reads as follows: "Mandatory. Gears; 

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

couplings; shafts; sawblades; fan inlets; and similar exposed moving machine parts which may be contacted by persons, and which may 

cause injury to persons, shall be guarded." 

As I previously stated in a recent decision concerning ~he ~uarding requirements of section 56.14-1, Massey Sand and Rock Compqny, 

Docket No, DENV 78-575-PM (June 18, 1979), petition for discretionary 

review denied, July 27, 1979, I believe that when an inspector cites a 

violation of this section of the mandatory standards, it is incumbent 

on him to ascertain ?11 of the pertinent factors which led h~m to conclude that in the nQ"Imal course of his work duties at or near sue~ · 

exposed machine parts, an employee is likely to come into contact with 

such exposed parts and be injured if such parts are not guarde¢, 

Here, it seems obvious to me from the inspector's testimony :ln support· of the citations, that he relied chiefly on the fact that a 

person coming in contact with such unguarded machine parts co#ld possibly be injured, and that conclusion was based on certain MSHA accident reports which apparently reflect that employees who are c;aiH1tltt 

in unguarded pulleys are in fact injured, While I accept the g;eneral 

proposition that a person who becomes entangled in an unguarded 

machine part is likely to be injured, this conclusion simply b.~gs the 

1430 
'question as to whether a specific pulley location in a mine is 

required to be guarded pursuant to the requirements of section 

56,14-1, In this regard, petitioner conceded on oral argument that 

the key words of the regulatory language, "may be contacted," is critical to any determination as to whether the standard has been violated, As I construe that language, it means that on a case-by-case 

basis, petitioner must establish that the unguarded area in question, 

by its location and proximity to the comings and goings of mine 

personnel, exposes them to the hazard or danger of being caught in 

the unguarded pulley, In my view, this question can only be determined by consideration of the prevailing circumstances at the time 

the citation issued, 

With regard to the unguarded tail pulley at the culvert-lined 

tunnel (Citation No. 347026), the inspector testified that the equipment was part of the material transportation system and that it was 

located in an isolated area where employees would not normally pass 

by on a regular basis. The respondent's defense is that the tunnel 

was protected by a chain and a "Do Not Enter" sign, and that 

employees are instructed not to enter the tunnel while the belt is 

moving. Respondent also pointed out that the unguarded pulleys at 

the other end of the belts are located some 20 feet high where material dumps off the end of the belt, and since there is no walkway 

there, they are apparently "guarded by location" and no guards are 

required, As for the unguarded tail pulley in the concrete-lined 

tunnel, respondent conceded ~hat it was not protected by a chain or 

a sign, 

The inspector indicated that the exposed unguarded pulley pinch 

point areas were some 18 inches to 2 feet off the ground, adjacent to 

walkways, and some 6 inches inside the belt frames, Although the 

inspector conceded that no one is stationed at the unguarded tail 

pulley locations on a regular basis, Safety Director Rawlings candidly 

admitted that the tail pulleys are greased once a week by employees 

and that materials are cleaned out of the pulleys on a monthly basis. 

Although Mr, Rawlings alluded to the fact tha the cleaning and greasing of the belts is supposed to be done when the belts are not running and before they are started up, he could not state whether 

greasing was ever accomplished while the belts were running, Furthermore, although he confirmed that employees were instructed not to be 

in the area wr..;.1e the belts were running, he admitted that there is 

no standard operating procedure or lock-out system when work is being 

performed on the belts and that employees who disregarded instructions 

and performed maintenance or other work on the pulley while it was 

moving could be injured. Under these circumstances, I conclude and 

find that the unguarded pulleys, adjacent to a walkway where men 

obviously passed while performing work on the belts and pulleys on a 

weekly and monthly basis, presented a hazard to those men and were 

required to be guarded, Since they were not, I conclude and find 

that the petitioner has established the violations, and the citations 

are AFFIRMED, ' 

1431 
Gravity 

I believe that the question of gravity must be determined on the 

basis of the conditions or practices which existed at the time the 

citations in question issued, General or speculative conclusions as 

to the hazards involved with respect to unguarded pulley locations 

simply are not sufficient to justify a finding that the conditions 

cited presented a grave threat to the safety of mine personnel, On 

the facts presented here, the inspector saw no one in the area of the 

unguarded pulleys, indicated that no one is stationed there on a regular basis, and conceded that the tunnel areas were somewhat remote 

and that employees did not pass through there on a regular basis, He 

also indicated that the chances of an accident were "very small," 

Respondent's unrebutted testimony is that one of the tunnels was 

chained off and a "Do Not Enter" sign was posted, and while the other 

one was not chained or posted, several boards blocked the entrance, 

Under the circumstances presented with respect to the citations, I 

cannot conclude that the conditions cited were serious, and I find 

that they were not, 

Negligence 

Both the inspector and Safety Director Rawlings were of the view 

that the location of the unguarded pulleys would dictate whether they 

were required to be guarded pursuant to section 56,14-1, Mr, Rawlings 

indicated that some pulley locations are in fact guarded and that he 

is the person who decides whether a particular location should be 

guarded and his decision in this regard is dictated by the circumstances presented, including consideration of whether there is a lot 

of foot traffic in the area and how often employees are required to 

be at any given location, As an example of areas not required to be 

guarded, he cited elevated pulley areas where there are no walkways. 

On the facts presented in this case, I find that Mr, Rawlings knew 

or should have known that greasing and cleanup were being performed 

in the unguarded pulley areas adjacent to walkways, and while employees may not be required to go to those areas frequently, the fact is 

that those employees working in and around unguarded pulleys were 

exposed to a potential hazard, and I conclude that Mr, Rawlings should 

have been aware of these circumstances, Consequently, I conclude and 

find that the failure to guard the locations cited resulted from a 

failure by the respondent to exercise reasonable care and that this 

constitutes ordinary negligence, 

Good Faith Compliance 

Abatement was achieved through the fabrication and installation 

of wire mesh guards, and petitioner stipulated that the citations 

were abated within the time fixed by the inspector (Tr, 13), 

1432 
Findings and Conclusions 

Docket No, DENV 79-220-PM 

Fact of Violation--Citation No, 347029, 30 CFR 56,14-1 

Respondent is charged with a violation of the provision of 30 CFR 

56,14-1, which reads as follows: "Mandatory, Gears; sprockets; 

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

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

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

to persons, shall be guarded," 

The inspector issued this citation because he believed that the 

guard which had been installed on the raw crusher V-belt drive was 

inadequate, He believed it was inadequate because the existing guard 

did not extend low enough to cover the pinch point at the pulley drive 

where an area approximately 8 to 10 inches remained unguarded. Exhibit 

R-1 is a picture of the V-belt drive in question and it clearly shows 

the area of the existing guards and the location which was not guarded. 

The existing guards are a combination of a wire mesh screen and what 

appears to be a piece of metal sheeting located over and adjacent to 

the vulley apparatus. The guard which was installed to abate the 

citation is a piece of wire mesh screen which covers the entire belt 

drive and pulley mechanism. 

Section 56.14-1 requires, among other things, that belt drive, 

head, tail, and takeup pulleys, and "similar exposed moving machine 

parts which rnay be contacted by persons, and which may cause injury" 

be guarded. Based on theevidence and testimony adduced in these 

proceedings, I find and conclude that the V-belt drive location 

cited was in fact a pulley of the type described by and within the 

meaning of the standard and was required to be guarded to preclude 

persons from coming in contact with it and possibly being injured. 

On the facts presented here, the inspector testified that there 

was a danger of someone getting caught in the unguarded portion of 

the pulley in question. A walkway was locat~d some inches away from 

the unguarded pulley and the crusher operator would have occasion 

to walk along the walkway several times during the course of the 

shift, and at the time of the citation, he observed such an operator on duty in the area and the crusher was operating. Respondent's defense is based on the fact that the operator believed that 

the existing guard was adequate. However, respondent's witness, 

Mr. Rawlings, conceded that someone could get their pants' legs 

caught in the exposed pulley which was not guarded. The fact that 

one would have to be on his knees for this to occur is not controlling, and while it may indicate that the chances of an accident happening is somewhat remote, it may not serve as an absolute 

defense to the asserted violation. Since the pulley area was in 

1433 
fact guarded to some extent, I can only assume that the existing 

guards were installed by the respondent out of recognition of the 

fact that the pulley area did present a hazard, and that there was 

a possibility of someone walking along the adjacent walkway could 

become entangled in the exposed pulley which was not guarded. In 

the circumstances, I conclude and find that the pulley area cited 

was in fact not adequately guarded and that petitioner has established a violation. Accordingly, the citation is AFFIRMED. 

Gravity 

I find that the circumstances presented establishes that the violation was serious. The walkway was inches from the exposed unguarded 

pulley area and the crusher operator has occasion to walk up and down 

that walkway during the course of the shift, and respondent candidly 

admitted that had he caught a pant's leg in the pulley, he could have 

been injured. 

Negligence 

The inspector's testimony that the unguarded pulley area was 

unguarded and in plain sight to supervisors who may have been there 

remains unrebutted. Furthermore, since portions of the pulley were 

guarded to some extent, I find tht the respondent was on notice that 

the pulley presented a hazard since it seems obvious that the existing guards were installed out of recognition of that fact. I further 

conclude that the respondent should have been aware of the fact that 

the unguarded pulley area adjacent and next to the walkway presented 

a hazard and that respondent's failure to install a guard in that 

area resulted in its failure to exercise reasonable care and that 

this constitutes ordinary negligence due to the respondent's failure 

to correct an unsafe condition which it knew or should have known 

existed. 

Good Faith Compliance 

The citation issued on August 16, 1978, and the inspector fixed 

the time for abatement as August 21, 1978. Respondent's testimony 

reflects that the guard was installed on the afternoon of the day 

the citation issued. I find that this indicates that ~he respondent 

exercised rapid abatement in correcting the condition and this fact 

has been considered by me in assessing a civil penalty for this 

citation. 

Fact of Violation--Citation No. 347021, 30 CFR 56.12-32 

Section 56.12-32 provides: "Mandatory. Inspector and cover 

plates on electrical equipment and junction boxes shall be kept in 

place at all times except during testing or repairs." 

1434 
I find that the preponderance of the evidence adduced with 

respect to this citation supports a finding of a violation of section 56.12-32. Respondent did not dispute the fact that the required 

cover plate was in fact not in place and its testimony did not rebut 

the findings made by the inspector in this regard. The citation is 

AFFIRMED. 

Gravity 

From the testimony and evidence presented, I cannot conclude that 

the violation was serious. The inspector testified that the uncovered 

area was some 4 inches by 4 inches, and his concern was that someone 

working around the uncovered motor plate cleaning with a shovel or 

greasing equipment with a grease gun or other hand tools would somehow 

place such tools in the uncovered plate area, thereby breaking the 

insulation on the wires or contacting the conductors. He saw no one 

in the area on the day of his inspection and the evidence establishes 

that the area is somewhat remote and not regularly traveled. He also 

testified that the wires inside the junction box were spliced, wrapped, 

and insulated and there is no indication that the splicing or insulation were in other than good condition. Furthermore, he indicated that 

there was no danger to any of the exposed insulated wires and that the 

insulation was not likely to wear out in the normal course of events. 

I conclude that the possibility of someone placing a shovel, 

grease gun, or other tool into the small, exposed area of the cover 

plate was highly unlikely. Furthermore, although the tunnel area is 

washed out from time to time with water, there is no evidence that 

this was the case on the day in question, and based on the totality 

of the conditions which prevailed on the day in question, I find that 

the condition cited was nonserious. 

Negligence 

The inspector testified that the uncovered plate in question was 

in plain view and should have been observed by supervisors who were 

in the area. This testimony is unrebutted and I find that the respon~ 

dent should have been aware of the fact that the cover plate was not 

in place, and its failure to exercise reasonable care in the circumstances constitutes ordinary negligence. 

Good Faith Compliance 

The citation issued on August 16, 1978, and the inspector fixed 

August 21, 1978, as the abatement time. Respondent's testimony indicates that the cover plate was replaced the afternoon of August 16, 

and I find that the respondent achieved rapid compliance once the 

citation issued, and this is reflected in the penalty assessed by me 

for the violation. 

1435 
Size of Business and Effect of Ci~il Penalties on the Respondent's 

Ability to Remain in Business 

In both of these dockets, the parties stipulated that respondent 

is a small-to-medium-sized sand and gravel operator, and that the 

imposition of civil penalties will not impair its ability to remain 

in business. 

History of Prior Violations 

In both of these dockets, the parties stipulated that the respondent has no previous history of violations, and this fact has been 

considered by me in assessing the civil penalties. 

Conclusion 

On the basis of the foregoing findings and conclusions, the following citations are AFFIID-1ED, and civil penalties are assessed as 

follows: 

Docket No. DENV 79-221-PM 

Citation No. Date 

347026 8/9/78 

347027 8/9/78 

Docket No. DENV 79-220-PM 

Citation No. Date 

347029 8/16/78 

347031 8/16/78 

30 CFR Section 

56.14-1 

56.14-1 

30 CFR Section 

56.14:1 

56.12-32 

ORDER 

Assessment 

$25 

25 

Assessment 

$50 

25 

The respondent is ORDERED to pay the civil penalties assessed in 

these proceedings, as indicated above, in the total amount of $125 

within thirty (30) days of the date of these decisions~ Citation No. 

347030 (DENV 79-220) is DISMIS~ED_. :-.-~ · •' -~ , 

/~crrgt·~· Ap~1t:· ~;~,las~ 1 /h~ - t Administrative 1.aw Judge 

1436 
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. 

DUNLAP COAL COMPANY, 

Respondent 

SEP 2 6 1979 

Civil Penalty Proceeding 

Docket No. BARB 78-675-P 

Assessment Control 

No. 40-02190-02004 

No. 1 Surface Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Leo J. McGinn, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Before Administrative Law Judge Steffey 

When the hearing was convened on August 22, 1979, in the above-entitled 

proceeding, counsel for the Mine Safety and Health Administration requested 

that I approve a settlement agreement which had been entered into by the 

parties. Under the settlement agreement, respondent would pay a civil 

penalty of $9.00 for an alleged violation of 30 CFR 71.101 instead of the 

penalty of $46.00 proposed by the Assessment Office. 

Counsel for MSHA stated that he had agreed to the reduction in the 

proposed penalty because the alleged violation of Section 71.101 was cited 

prior to the amendments contained in the Federal Mine Safety and Health 

Act of 1977 which removed the cloud cast upon alleged violations of the 

respirable-dust standards by the opinions of the former Board of Mine 

Operations Appeals in Eastern Associated Coal Corp.; 7 IBMA 14 (1976), 

aff'd on reconsideration, Eastern Associated Coal Corp., 7 IBMA 133 (1976). 

Large numbers of cases which arose during the period when the Board's 

Eastern Associated opinions were in effect were subsequently settled on a 

basis which amounted to an average payment by the coal operators of 

$9.00 per alleged respirable-dust violation. See, ~.g., Judge Jqseph B. 

Kennedy's Order Approving Consent Settlement and To Pay Civil Penalties 

issued May 10, 1978, in Secretary of Labor (MSHA) v. Consolidation Coal 

Company, ~al., Docket Nos. VINC 76-76, ~al. I believe that fairness 

to other operators justifies allowance of the settlement figure of $9.00 

for all civil-penalty cases involving alleged respirable-dust violations 

occurring prior to the amendment of the definition of ~respirable dust" 

in the 1.977 Act. 

1L..'il7 
MSHA v. Dunlap, Docket No. BARB 78-675-P (Contd.) 

In addition to the equitable reasons given above for accepting a 

settlement of $9.00, the official file shows that respondent operated 

an extremely small business employing only two miners who produced an 

average of approximately 22 tons of coal per day (Tr. 4). Moreover, 

respondent's answer to MSHA's Petition for Assessment of Civil Penalty 

shows that respondent had taken the required dust samples, but the 

samples had been returned to respondent because of respondent's lack 

of understanding about the color of card which should have been used at 

the time the samples were mailed to MSHA's Pittsburgh laboratory. At 

the present time, respondent is not engaged in producing coal (Tr. 4). 

Since a very small operator is involved and since there was a good 

faith effort to comply with the respirable-dust standards, I find that 

strong reasons exist to approve the settlement agreement in this 

instance. 

WHEREFORE, it is ordered: 

(A) The settlement agreement submitted at the hearing by counsel 

for MSHA is approved. 

(B) Pursuant to the settlement agreement, Dunlap Coal Company shall, 

within 30 days from the date of this decision, pay a civil penalty of 

$9.00 for the violation of 30 CFR 71.101 alleged in MSHA's Petition for 

Assessment of Civil Penalty filed in Docket No. BARB 78-675-P. 

Distribution: 

~~ e. r,lt;JJfl12L1 Richard C. Steffey~;--~ 

Administrative Law Judge 

Leo J. McGinn,, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Dunlap Coal Company, Attention: Mr. Stanley Ray Hitchcock, Star 

Route, Box 79-A, Dunlap, TN 37327 (Certified Mail) 

1438 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SEP 2 6 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket Nos. Assessment Control Nos. 

v. 

BLUE RIDGE COAL CORPORATION, 

Respondent 

PIKE 79-27-P 

PIKE 79-28-P 

No. 4 Mine 

DECISION APPROVING SETTLEMENT 

15-09779-03001 

15-09779-03002 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

Before 

Mr. Edwards. Pinson, Phelps, Kentucky for 

Respondent. 

Administrative Law Judge Steffey 

When the hearing was convened on August 7, 1979, in the above-entitled 

proceeding, counsel for petitioner and respondent's representative made 

statements in which it was explained that respondent is contesting neither 

the occurrence of the violations alleged in MSHA's Petitions for Assessment 

of Civil Penalty nor the amounts of the civil penalties proposed by the 

Assessment Office for those alleged violations. The only reason that 

respondent did not pay the proposed penalties when respondent was notified 

of them by the Assessment Office was that respondent had suffered a loss 

of about a quarter of a million dollars and has had a serious cash flow 

problem which prevented it from being able to pay the proposed civil 

penalties in a timely fashion. 

Respondent has been gradually improving its financial condition in 

recent months and it was stated at the hearing that respondent believed it 

could now pay the penalties proposed in this proceeding if it were given 

a period of 30 days within which to pay the penalties proposed in Docket 

No. PIKE 79-27-P and a period of 60 days within which to pay the penalties 

proposed in Docket No. PIKE 79-28-P. 

Respondent's request for a period of 30 and 60 days, respectively, to 

pay the total penalties proposed by the Assessment Office is reasonable in 

the circumstances and will hereinafter be granted. 

The record shows that respondent's No. 4 Mine was producing between 

250 and 3.00 tons per day at the time the citations involved in this proceeding were written. Respondent has obtained some additional equipment 

1439 
MSHA v. Blue Ridge, Docket Nos. PIKE 79-27-P, ~al. (Contd.) 

and hopes to increase production to about 400 tons per day. Respondent 

currently employs eight miners (Tr. 6). On the basis of the foregoing 

information, I find that respondent is a small operator and that penalties 

should be in a low range of magnitude insofar as they are based on the 

criterion of the size of respondent's business. Respondent's president 

indicated that if his business continued to improve, he would be able to 

pay the proposed penalties and continue in business (Tr. 4). 

The inspectors' citation sheets and subsequent action sheets show 

that respondent demonstrated a normal good faith effort to achieve rapid 

compliance. With respect to Citation Nos. 64031, 64033, 64034, and 

64035, respondent demonstrated an outstanding effort to achieve rapid 

compliance and the penalty points were accordingly reduced by the 

Assessment Office in determining the penalties proposed for those four 

alleged violations. 

For all of the alleged violations, the Assessment Office determined 

that respondent had a relatively adverse history of previous violations 

because from 30 to 40 percent of the points used to derive penalties are 

attributed by the Assessment Office to respondent's history of previous 

violations. 

The Assessment Office attributed about 33 to 40 percent of its points 

for assessing penalties to the criterion of negligence and from 10 to 

30 percent of its points for assessing penalties to the criterion of 

gravity. 

The two lowest penalties proposed by the Assessment Office were 

$122 each. One of those was appropriately low because it related to an 

alleged violation of Section 75.212 for failure to keep proper records. 

That violation would not have been a serious threat to a miner's safety. 

The other low penalty of $122 related to an alleged violation of Section 75.1714 for failure to provide a self-rescue device for each miner 

underground. Without some testimony from the inspector to show otherwise, 

I would have been inclined to assess a larger penalty than $122 for that 

violation. On the other hand, Exhibit 1 does not show that respondent 

has previously violated that section of the mandatory safety standards. In 

the absence of testimony, I cannot find that a penalty of $122 for the 

alleged violation of Section 75.1714 is unreasonably low. 

The other alleged violations are all moderately serious and involve 

ordinary negligence except for the violations of Section 77.506 alleged 

in Citation Nos. 64157 and 64158 which state that respondent had bridged 

over some fuses with solid wire. I generally consider it to be gross 

negligence for an operator to bridge over fuses and thereby destroy overload and short-circuit protection. In each instance, the Assessment 

Office determined the proposed penalties of $295 and $255 for the alleged 

1440 
MSHA v. Blue Ridge, Docket Nos. PIKE 79-27-P, ~al. (Contd.) 

violations of Section 77.506 by assigning within one or two points the 

maximum number of points permissible under 30 CFR 100.3 for ordinary 

negligence. Inasmuch as the bridged fuses were on the surface of the mine 

where the seriousness of fire or smoke would have been less dangerous 

than such hazards would have been underground, I cannot conclude that 

the penalties are necessarily unreasonably low. 

My review of the remaining violations alleged by MSHA's Petitions 

for Assessment of Civil Penalty filed in this proceeding shows that they 

were reasonably evaluated under the six criteria and I find that respondent's agreement to pay the proposed penalties as hereinafter ordered 

should be approved. 

WHEREFORE, it is ordered: 

(A) Respondent's agreement to pay the full penalties proposed by 

the Assessment Office is approved as hereinafter ordered in paragraphs (B) 

and (C). 

(B) Pursuant to respondent's agreement at the hearing with respect 

to MSHA 1 s Petition for Assessment of Civil Penalty filed in Docket 

No. PIKE 79-27-P, Blue Ridge Coal Company shall pay, within 30 days from 

the date of this decision, civil penalties totaling $4,350.00 which are 

allocated to the respective alleged violations as follows: 

Citation No. 64031 3/20/78 § 75.503 ••...•.••••••••••••• 

Citation No. 64032 3/20/78 § 75.400 ••••••.•••.••••••••• 

Citation No. 64033 3/20/78 § 75.517 •..•..•.••••.••••••• 

Citation No. 64034 3/20/78 § 75.517 •.••••.•.•.••..•.•.• 

Citation No. 64035 3/20/78 § 75.1710 •••••••.••••••••• ;. 

Citation No. 64036 3/20/78 § 75.313 ••...••...•••••.•••• 

Citation No. 64037 3/20/78 § 75.1100-3 ••.•..••••••••• ;. 

Citation No. 63369 5/15/78 § 75.400 ................... . 

Citation No. 63370 5/15/78 § 75.503 •.•.•••••••••••••••• 

Citation No. 63371 5/15/78 § 75.313 •••••••.•••••••••••• 

Citation No. 63372 5/15/78 § 75.313 ••••••••.•••••••.•• ~ 

Citation No. 63373 5/15/78 § 75.1710 ••.•.••••••••.••••• 

Citation No. 63374 5/15/78 § 75.1722 •••.••..••••••••••• 

Citation No. 63375 5/15/78 § 75.326 •••••••••••••.•••.•• 

Citation No. 63376 5/15/78 § 75.523-2 ••••••..••.••••••• 

Citation No. 63377 5/15/78 § 75.1100-3 •••••.•.••••.•••• 

Citation No. 63378 5/15/78 § 75.503 .................. .. 

Citation No. 63241 5/16/78 § 75.518 ••••••..•••••••••••• 

Citation No. 63242 5/16/78 § 75.701 •••••••••••••••••••• 

Citation No. 63243 5/16/78 § 75.512 •••••••.••••••.••.•• 

Total Penalties in Docket ~o. PIKE 79-27-P ••••.•••• 

1441 

$ 140.00 

255.00 

170.00 

170.00 

160.00 

210.00 

225.00 

195.00 

210.00· 

225 .oo 

225.00 

180.00 

325.00 

395.00 

275.00 

160.00 

170.00 

240.00 

225.00 

195.00 

$4,350.00 
MSHA v. Blue Ridge, Docket Nos. PIKE 79-27-P, ~al. (Contd.) 

(C) Pursuant to respondent's agreement at the hearing with respect 

to MSHA's Petition for Assessment of Civil Penalty filed in Docket 

No. PIKE 79-28-P, Blue Ridge Coal Company shall pay, within 60 days from 

the date of this decision, civil penalties totaling $2,399.00 which are 

allocated to the respective alleged violations as follows: 

Citation No. 63244 5/16/78 § 75.523 •••.••••••••• ; ••••• 

Citation No. 63380 5/16/78 § 75.503 , ••..••••.••••••••• 

Citation No. 63501 5/16/78 § 75.1101-7 •••••••••••••••• 

Citation No. 63502 5/16/78 § 75.1714 •••..•.••••• ~ •.••• 

Citation No. 64153 5/16/78 § 77.504 ••••••••••.••.••••• 

Citation No. 64154 5/16/78 § 77.512 •.••.••••.••.•••••• 

Citation No. 64155 5/16/78 § 75.512 •••••.••••••••••••• 

Citation No. 64156 5/16/78 § 77.504 ••••••••••..••••••• 

Citation No. 64157 5/16/78 § 77.506 •••.•••••••••••.••• 

Citation No. 64158 5/16/78 § 77.506 •••.•••••••••.•..•• 

Citation No. 64159 5/16/78 § 77.505 ••.•••••••••••••••• 

Citation No. 64160 5/16/78 § 75.517 •..•.••.••••.•••••• 

Total Penalties in Docket No. PIKE 79-28-P ••••••• 

Distribution: 

~ <J. rJ , 'l/Jb.u 

Richard C. Steffe~~ Administrative Law Judge 

$ 210.00 

160.00 

210.00 

122.00 

210.00 

160.00 

122.00 

240.00 

295.00 

255.00 

160.00 

255.00 

$ Z,399.oo 

.John H. O'Donnell, T~ial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Blue Ridge Coal Corporation, Attention: Edward S. Pinson, President, 

Phelps, KY 41553 (Certified Mail) 

1442 
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. 

BRADLEY COUNTY HIGHWAY 

DEPARTMENT, 

Respondent 

SEP 2 6 1979 

Civil Penalty Proceeding 

Docket No. BARB 79-94-PM 

Assessment Control 

No. 40-00008-05001 

County Quarry & Mill 

DEFAULT DECISION 

Appearances: Leo J. McGinn, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Before: Administrative Law Judge Steffey 

A hearing in the above-entitled proceeding was convened in 

Chattanooga, Tennessee, on August 22, 1979, pursuant to a written notice 

of hearing dated July 2, 1979. The notice of hearing was received by 

respondent on or about July 5, 1979. Counsel for the Mine Safety and. 

Health Administration entered his appearance at the hearing, but no one 

appeared at the hearing to represent respondent. 

Section 2700.63(a) of the Commission's Rules of Procedure which 

became effective on July 30, 1979, provides that when a party fails to 

comply with an order of a judge, an order to show cause shall be directed 

to the party before the entry of any order of default. An order to show 

cause was sent to counsel for respondent on August 23, 1979, pursuant to 

29 CFR 2700.63(a). A return receipt shows that the show-cause order was 

received by respondent on August 27, 1979. The order required respondent 

to show cause, within 15 days after receipt of the order, why it should 

not be found to be in default for failure to appear at the hearing convened on August 22, 1979. A period of over 20 days has elapsed since the 

show-cause order was received, but respondent has not submitted a reply to 

the order. Therefore, I find that the show-cause order has not been 

satisfied and I find respondent to be in default for failure to appear at 

the hearing. Section 2700.63(b) of the Commission's Rules of Procedure 

provides that when a judge finds a respondent to be in default in a civilpenalty proceeding, he shall also enter a summary order assessing the proposed penalties as final, and directing that such penalties be paid. 

WHEREFORE, it is ordered: 

Within 30 days from the date of this decision, respondent shall pay 

civil penalties totaling $320.00 which are allocated to the respective 

1443 
MSHA v. Bradley County, Docket No. BARB 79-94-PM (Contd.) 

alleged violations as follows: 

Citation No. 106802 5/9/78 § 56.9-87 ••••••••••••••••• 

Citation No. 106803 5/9/78 § 56.9-87 ••••••••••••••••• 

Citation NQ. 106804 5/9/78 § 56.14-6 ••••••••••••••••• 

Citation No. 106805 5/9/78.§ 56.9-54 ••••••••••••••••• 

Total Civil Penalties in This Proceeding •••••••• 

$ 90.00 

90.00 

84.00 

56.00 

$320.00 

~C.rJo/hJ'- Richard C. Steffey 

Administrative Law Judge 

Distribution: 

Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

James S. Webb, P. C. , Attorney for Bradley County Highway Department, 

283 First Street, NW, P.O. Box 1432, Cleveland, TN 37311 (Certified Mail) 

1444 
FEDERAL-MINE SAFETY AND HEALTH REVeEW COMMISSION· 

OFFICE OF ADMINISTRArlVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OSBORNE COAL COMPANY, 

Respondent 

SEP 2 7 1979 

Civil Penalty Proceeding 

Docket No. BARB 78-618-P 

A/O No. 15-02269-80 

No. 1 Mine 

DEFAULT DECISION 

Appearances: John H. O'Donnell, Esq., Office of the 

Solicitor, U.S. Department of Labor, for 

Petitioner; 

Randall K. Osborne, Osborne Coal Company, 

Pennington Gap, Virginia, for Respondent. 

Before: Judge Cook 

On August 14, 1978, the Mine Safety and Health Administration 

(MSHA) filed a petition for assessment of civil penalty against 

Osborne Coal Company (Respondent) pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977. Since an answer ·had not 

been filed by the Respondent as of November 16; 1978, then Acting 

Chief Administrative Law Judge Broderick issued an order requiring 

the Respondent to show cause both as to why it should not be deemed 

to have waived its right to an evidentiary hearing and as to why 

the case should not be disposed of summarily pursuant to 29 CFR 

2700.26(b) (1978). On December 1, 1979, the Respondent timely 

filed its response to the order to show cause. Subsequent thereto, 

the case was assigned to the undersigned Administrative Law Judge. 

Notices of hearing were issued on March 8, 1979, May 9, 1979, 

and May 30, 1979. Copies of the notices were sent by certified mail 

to the Respondent. The return mail receipts disclose that they were 

received by the Respondent on March 19, 1979, May 16, 1979, and 

June 6, 1979, respectively. A hearing was held, following which, a 

transcript with exhibits was received by the Office of Administrative Law Judges of the Federal Mine Safety and Health Review 

Commission on September 13, 1979. 

The hearing commenc.ed at 9 :45 a.m., June 27, 1979, at the 

designated place, i.e., Abingdon, Virginia. Counsel for MSHA 

appeared. No one appeared to represent the Respondeat (Tr. 4). 
Following this determination, the Respondent was found in default 

pursuant to 29 CFR 2700.26(c) (1978) (Tr. 5). It was thereupon 

noted that 29 CFR 2700.26(c) (1978), provides that "[w]here the 

Judge determines to hold the Respondent in default, the Judge 

shall enter a summary order imposing the proposed penalties as 

final, and directing that such penalties be paid" (Tr. 5). 

Counsel for MSHA then introduced the following exhibits into 

evidence: 

M-1 is a copy of a computer printout compiled by the Office of 

Assessments listing the history of previous violations for which the 

Respondent had paid assessments beginning October 15, 1971, and ending October 15, 1973. 

M-2 is a copy of Notice No. 1 LR, 30 CFR 75.200, October 15, 

1973. 

M-3 1S an extension of M-2. 

M-4 is a termination of M-2. 

M-5 is a copy of Notice No. 2 LR, 30 CFR 75.1704, October 15, 

1973. 

M-6 is a termination of M-5. 

M-7 is a copy of Notice No. 3 LR, 30 CFR 75.503, October 15, 

1973. 

M-8 is a termination of M-7. 

M-9 is a document containing the Office of Assessment's narrative 

findings of fact and proposeu penalties with respect to the subject 

notices. 

Exhibit M-9 identifies the notices and the proposed penalties 

as follows: 

Notice No. 

1 LR 

2 LR 

3 LR 

Proposed Penalty 

$56 

84 

35 

Following the receipt into evidence of MSHA's exhibits, a summary 

order was entered imposing the proposed penalties and directing that 

the penalties be paid (Tr. 11). 

1446 
ORDER 

Accordingly, the order is REAFFIRMED and the Respondent is 

directed to pay the penalty assessed in the amount of $175 within 

30 days of the date of this decision. 

Law Judge 

Distribution: 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Randall K. Osborne, Osborne Coal Company, Route 1, Box 237-A, 

Pennington, Gap, VA 27277 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

1447 
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. 

PEERLESS EAGLE COAL COMPANY, 

Respondent 

SEP 2 7 \979 

Civil Penalty Proceeding 

Docket No. HOPE 79-145-P 

A.O. No. 46-01616-03003 

Mine No. 2A 

DECISION AND ORDER ASSESSING DEFAULT PENALTY 

After the retirement of Judge Littlefield and reassignment of the 

captioned matter to the presiding judge, "};_/ a notice of hearing and 

pretrial order issued on August 7, 1979. Pursuant to Rule 25 of the 

Interim Rules of Procedure (Rule 28 of the Revised Rules) the operator 

was required to file on or before Friday, September 7, 1979, a plain and 

concise statement of the reasons it was contesting each violation and/or 

the amount of each penalty, together with a statement as to whether the 

operator claimed the payment of a maximum penalty for each violation 

charged would impair its ability to continue in business. The order 

further stated that "except for good cause shown in advance thereof, 

any failure to comply in full and on time with the provisions of this 

order shall be deemed cause for the issuance of an order of dismissal 

or default." Respondent failed to comply with any of the terms of the 

pretrial order. 

Pursuant to Rule 63 of the Revised Rules an order to show cause 

why respondent should not be held in default and a summary order entered 

assessing the proposed penalties as final issued on September 12, 1979, 

returnable on or before Friday, September 21, 1979. The show cause 

order was receipted for by respondent's attorney on Friday, September 14, 

1979. 

Based on an independent evaluation and de novo review of the 

circumstances as set forth in the Secretary';-response to the pretrial 

order, and more particularly the statements of the inspector and his 

supervisor, I find that the amount of the penalties warranted for the 

violations charged are as follows: 

!/ Judge Littlefield had denied a motion to remand the matter to 

the Assessment Off ice and had issued a pretrial order which was 

superseded by the order of August 7, 1979. 

1448 
Citation No. 044225 - 30 CFR 75.1105 

The supervisor's statement and a consideration of the 

circumstances persuades me that the violation of the requirement that the air current ventilating a permanent dewatering pump be 

directly coursed into a return airway created only a remote hazard 

of smoke inhalation for miners working inby the intake airway. I 

conclude that the violation was nonserious and resulted from a low 

degree of ordinary negligence. I find therefore that the penalty 

warranted is $300.00. 

Citation No. 044226 - 30 CFR 75.200 

The statements of the inspector and supervisor and a consideration 

of the circumstances persuades me that the failure to scale down 

loose roof in an area measuring 15 by 15 feet which was travelled 

only once a week by a certified preshift examiner or fire boss 

created only a remote roof fall hazard for one miner, namely the 

examiner who should have reported the condition for correction. I 

find therefore that it was a knowing violation attributable to a high 

degree of negligence on the part of the examiner and imputable 

to the operator, but that the i~probability of a fatal or disabling 

injury requires a finding that the violation was not serious. 

For these reasons, I conclude that the penalty warranted is 

$300.00. 

I take note of the fact that Rule 63(b) apparently contemplates 

the presiding judge "shall" issue an order of default "assessing the 

proposed penalties as final." Here the penalties proposed by the 

Assess~ent Office were $620.00 for the ventilation violation and $470.00 

for the roof violation. Rule 29(b) and section llO(i) of the Act, 

however, require that "in determining the amount of penalty neither 

the Judge nor the Commission shall be bound by a penalty recommended 

by the Secretary or by any offer of settlement made by any party." 

I construe Rule 29(b) and section llO(i) to require the Judge 

and the Commission to make an independent evaluation and de ~ 

review of proposed penalties based on the evidence relating to the 

nature of the violation and the six statutory criteria. Since I find 

Rule 29(b) and section llO(i) govern the assessment of default as well 

as adjudicated penalties, I conclude the mandatory language of Rule 63(b) 

must be considered as inadvertant and the rule read in harmony with 

the governing terms of the statute. In this regard, I note that both 

the Commission and the Occupational Safety and Health Review Commission have 

construed the cognate penalty provisions of the two statutes !:./· as 

:!:_/ The language of the applicable provisions of the Occupational 

Safety and Health Act, 29 U.S.C. 666(i), tracks that of section llO(i) 

of the Mine Act. 

1449 
permitting the judges and the Commissiomto determine whether a contested 

penalty should be more or less than that proposed by the Secretary. 

Secretary v. Shamrock Coal Co., BARB 78-82-P, FMSHRC 79-6-5, 1 FMSHRC 

Decisions 469 (June 7, 1979); Long Manufacturing Co. v. Brennan, 554 

F.2d 903, 908 (8th Cir. 1977); Brennan v. OSHRC, 487 F.2d 438, 441-442 

(8th Cir. 1974). 

Accordingly, it is ORDERED that respondent be, and hereby is, 

declared in DEFAULT. It is FURTHER ORDERED that a penalty of $600.00 

be, and hereby is, assessed and that respondent pay this amount on or 

before Monday, October 15, 1979. 

Distribution: 

Joseph B. Kenne y 

Administrative Law 

Lawrence W. Moon, Jr., Trial Attorney, U.S. Department of Labor, Office 

of the Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 

Donald A. Lambert, Esq., Peerless Eagle Coal Company, P.O. Box 4006, 

Charleston, WV 25304 (Certified Mail) 

1450 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On behalf of: 

ARNOLD J. SPARKS, JR., 

Applicant 

v. 

ALLIED CHEMICAL CORPORATION, 

Respondent 

SEP 2 7 1979 

Application for Review 

of Discrimination 

Docket No. WEVA 79-148-D 

Shannon Branch Coal Mine 

DECISION AND ORDER 

Appearances: Frederick W. Moncrief, Esq., Office of the Solicitor, 

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

Applicant; 

Marshall C. Spradling, Esq., Spilman, Thomas, Battle 

& Klostermeyer, Charleston, West Virginia, for 

Respondent. 

Before: Judge Kennedy 

This is a discrimination complaint brought pursuant to section 

105(c)(2) of the Federal Mine Safety and Health Act, ~ amended, 

30 U.S.C. § 815(c)(2), on behalf of Arnold J. Sparks, Jr., a miner 

employed at Allied Chemical Corporation's Shannon Branch Coal Mine. 

On March 28, 1978, MSHA inspector Cloy Blankenship performed a 

"spot" ventilation inspection of respondent's mine pursuant to section 103(i) of the Act. Before making his inspection, the inspector 

1451 
informed William P. Lusk, an assistant mine foreman, that Arnold J. 

Sparks, Jr., was going to accompany him on the inspection as a representative of the miners. Mr. Lusk told Mr. Sparks that he would not 

be paid by Allied for his participation in the inspection. Mr. Sparks 

did parti.cipate in the inspection, and Allied refused to pay him for 

that participation. 1/ 

On May 23, 1979, the Secretary of Labor filed this complaint 

alleging respondent interfered with the exercise of the statutory 

rights of Mr. Sparks as a representative of the miners in violation of 

section 105(c)(l) of the Act. Applicant prays that Allied be ordered 

to ce~se and desist from refusing to pay representatives of miners for 

participating in inspections; that Allied be ordered to pay Mr. Sparks 

for his participation in the inspection on March 28, 1978, with interest at 9 percent; and that Allied be assessed an appropriate civil penalty for its interference with the exercise of rights protected by 

section 105(c) of the Act. On August 30, 1979, respondent filed a 

motion for summary decision and brief in support thereof pursuant to 

29 CFR 2700.64 on the grounds that the statutory language, legislative 

history and case law interpreting the relevant sections of the Act 

demonstrate that as a matter of law Allied is not required to pay 

Mr. Sparks for his participation in a "spot" inspection made pursuant 

1/ These are the material facts as disclosed in applicant's complaint 

and in respondent's motion for summary disposition. Paragraphs 4 and 

5 of the.complaint allege that the inspection at issue was a "spot" 

inspection. The Secretary neither admits nor denies that the inspection was made pursuant to section 103(i). 

1452 
to section 103(i) of the Act, On September 10, 1979, the Secretary 

filed his opposition along with supporting briefs~ There being no 

genuine issue as to the material facts, the matter stands ready for 

summary decision of the question of statutory construction presented. 

At issue in this litigation is the extent of miners' walkaround 

rights, i·~·, the right to accompany an inspector and to receive normal compensation while doing so. This right is recognized in section 

103(f), 30 U.S.C. § 813(f), of the Act, which provides that a representative of the miners shall be given an opportunity to accompany an 

inspector for the purpose of aiding in the "inspection of any coal or 

other mine made pursuant to [section 103(a)]." 2/ Any such representative of the miners who is also an employee of the operator "shall 

suffer no loss of pay during the period of his participation in the 

2/ Section 103(f), 30 U.S.C. § 813(f), of the Act provides: 

"Subject to regulations issued by the Secretary, a representative 

of the operator and a representative authorized by his miners shall 

be given an opportunity to accompany the Secretary or his authorized 

representative during the physical inspection of any coal or other 

mine made pursuant to' the provisions of subsection (a), for the purpose of aiding such inspection and to participate in pre- or postinspection conferences held at the mine. Where there is no authorized 

miner representative, the Secretary or his authorized representative 

shall consult with a reasonable number of miners concerning matters 

of health and safety in such mine. Such representative of miners who 

is also an employee of the operator shall suffer no loss of pay during the period of his participation in the inspection made under this 

subsection. To the extent that the Secretary or authorized representative of the Secretary determines that more than one representative 

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

party to have an equal number of such additional representatives. 

However, only one such representative of miners who is an employee of 

the operator shall be entitled to suffer no loss of pay during the 

period of such participation under the provisions of this subsection. Compliance with the subsection shall not be a jurisdictional 

prerequisite to the enforcement of any provision of this Act." 

1453 
inspection." Respondent contends that there are certain types of. 

inspections to which the right to compensation does not attach, in 

particular, spot inspections for extrahazardous conditions pursuant 

to the mandate of section 103(i). 

The·scope of the Secretary's mine inspection authority is 

delimited by section 103(a), ll which directs "frequent" inspection 

of all mines for four purposes: (1) to obtain information relating 

to health and safety conditions and the causes of accidents; (2) to 

gather information relating to mandatory standards; (3) to determine 

whether imminent dangers exist; and, (4) to determine compliance with 

mandatory standards, citations, orders, or decisions. With respect to 

imminent dangers and compliance, the Secretary is directed to inspect 

ll Section 103(a), 30 U.S.C. § 813(a), of the Act reads in pertinent 

part: 

"Authorized representatives of the Secretary or the Secretary of 

Health, Education, and Welfare shall make frequent inspections and 

investigations in coal or other mines each year for the purpose of 

(1) obtaining, utilizing, and disseminating information relating to 

health and safety conditions, the causes of accidents, and the causes 

of diseases and physical impairments o~iginating in such mines, (2) 

gathering information with respect to mandatory health or safety 

standards, (3) determining wl1ether an imminent danger exists, and 

(4) determining whether there is compliance with the mandatory health 

or safety standards or with any citation, order, or decision issued 

under this title or other requirements of this Act. In carrying otit 

the requirements of this subsection, no advance notice of an inspection shall be provided to any person, except that in carrying out 

the requirements of clauses (1) and (2) of this subsection, the Secretary of Health, Education, and Welfare may give advance notice of 

inspections. In carrying out the requirements of clauses (3) and (4) 

of this subsection, the Secretary shall make inspections of each 

underground coal or other mine in its entirety at least four times a 

year, and of each surface coal or other mine in its entirety at least 

two times a year. The Secretary shall develop guidelines for additional inspections of mines based on criteria including, but not 

limited to, the hazards found in mines subject to this Act, and his 

experience under this Act and other health and safety laws." 

1454 
each mine "in its entirety at least" four times per year for underground mines and two times per year for surface mines. In addition to 

this minimum requirement for complete inspections, the Secretary is 

directed to establish guidelines for additional inspections based on 

his experience under the Mine Act "and other health and safety laws." 

Thus, it is apparent that the substantive authority for carrying 

out inspections for the purposes of obtaining information and insuring 

compliance is to be found in section 103(a). The regular compliance 

inspections are to be carried out frequently, but, in no event less 

than two or four times yearly. 

In addition to the minimum requirements for compliance inspections, two other subsections establish special procedures for triggering inspections for compliance and information~ Section 103(g)(l) !!._/ 

provides that at the request of a representative of the miners who has 

reasonable grounds to believe that a violation or imminent danger 

exists an immediate special inspection may be had. Section 103(i) 

2_/ provides for "spot" inspections for methane accumulations in 

gassy mines and for "other especially hazardous conditions" on an 

accelerated schedule. 

!!_/ Section 103(g)(l), 30 U.S.C. § 813(g)(l), of the Act reads in 

pertinent part: 

JIWhenever a representative of the miners or a miner in the case 

of a coal or other mine 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 obtain an immediate inspection by giving notice to the Secretary or his authorized 

representative of such violation or danger." 

5/ Section 103(i), 30 u.s.c. § 813(i), of the Act reads: 

- "Whenever the Secretary finds that a coal or other mine liberates 

excessive quantities of methane or other explosive gases during its 

1455 
Respondent takes the position that the compensation right under 

section 103(f) extends only to the minimum of four mandatory inspections "of the mine in its entirety," and that any other or additional 

inspections are without the coverage of the section. Maintaining that 

these "regular" inspections are the "only inspections made pursuant to 

Section l03(a)" (Brief, p. 5), respondent asserts that only a representative of miners participating in such a "regular" inspection is 

entitled to be paid. Respondent claims that since the inspection giving rise to the instant complaint was made pursuant to section 103(i), 

and since "there is no requirement in Section 103(i) that the operator 

pay a representative of miners for participation in such a spot 

inspection" (id.), the miner Sparks is not entitled to compensation. 

The Secretary, on the other hand, takes the position that the 

language of the compensation provision of section 103(f) clearly 

and unambiguously encompasses all inspections carried out for the 

fn, 5 (continued) 

operations, or that a methane or other gas ignition or explosion has 

occurred in such mine which resulted in death or serious injury at 

any time during the previous five years, or that there exists in such 

mine some other especially hazardous condition, he shall provide a 

minimum of one spot inspection by his authorized representative of 

all or part of such mine during every five working days at irregular 

intervals. For purposes of this subsection, 'liberation of excessive 

quantities of methane or other explosive gases' shall mean liberation 

of more than one million cubic feet of methane or other explosive 

gases during a 24-hour period. When the Secretary finds that a coal 

or other mine liberates more than five hundred thousand cubic feet of 

methane or other explosive gases during a 24-hour period, he shall 

provide a minimum of one spot inspection by his authorized representative of all or part of such mine every 10 working days at irregular 

intervals. When the Secretary finds that a coal or other mine liberates more than two hundred thousand cubic feet of methane or other 

explosive gases during a 24-hour period, he shall provide a minimum 

of one spot inspection by his authorized representative of all or 

part of such mine every 15 working days at irregular intervals." 

1456 
purposes enumerated in the four clauses of the first sentence 

of section 103(a). Relying on the Interpretative Bulletin of 

April 25, 1978, 43 F.R. 17546, the Secretary maintains that the 

"inclusion of a statutory minimum number of inspections at each 

mine is no more than an additional requirement, clearly directed 

at the Secretary, which does not affect the participation right." 

43 F.R. at 17547. Therefore, the Secretary concludes that because 

they are carried out for the purpose of obtaining information or 

determining whether imminent dangers, violations or especially 

hazardous conditions exist, the inspections triggered by sections 

103(i) and (g)(l) "are clearly conducted 'pursuant to' section 

103(a)." Id. 

In support of its position, respondent cites two previous decisions by administrative law judges which concluded that operators 

are not required to pay employees who accompany MSHA inspectors on 

other than the "regular", i_.~., entire mine inspections. KentlandElkhorn Coal Corporation v. Secretary of Labor, PIKE 78-339 (March 8, 

1979), appeal pending; Secretary of Labor v. Helen Mining Company, 

PITT 79-11-P (April 11, 1979), appeal pending. 

In Kentland-Elkhorn, an MSHA electrical specialist conducted an 

inspec.tion of the operator's preparation plant. At the time of this 

inspection, another inspector was in the process of carrying out one 

of the "regular" inspections of the mine in its entirety. That 

1457 
inspector was accompanied by a miner who was paid. The electrical 

specialist was also accompanied by a representative of the miners, 

and upon the operator's refusal to pay that miner, a citation and 

subsequently a withdrawal order issued. In a review proceeding, the 

operator contended that section 103(f) only grants miner representatives the right to participate in an inspection without suffering 

loss of pay during a "regular" inspection of the entire mine and 

since the inspection at issue was a spot electrical inspection, it 

had properly refused to pay the miner. The administrative law judge 

agreed with these contentions and held that the right to participate 

without loss of pay is limited to "regular" inspections of the entire 

mine. 

A similar conclusion was reached in Helen Mining Company, supra, 

with respect to a spot inspection required by section 103(i). Since 

the mine involved in that case was particularly gassy, it had to be 

frequently inspected for possible accumulations of methane. The 

inspector involved had been in the process of making one of the 

"regular" inspection·s of the mine 1n its entirety during the previous 

3 days, but he interrupted this inspection so that he could investigate areas where accumulations of methane might exist in order to 

determine whether those areas were adequately ventilated. The inspector was informed that the representative of the miners who accompanied 

him oh the methane inspection would not be paid, whereupon a citation 

and subsequently a withdrawal order issued. At the hearing, the operator contended that section 103(f) only requires that the miner 

representative who participates in an inspection of the entire mine 

1458 
must be paid~ 21._ Again, the administrative law judge agreed 

with these contentions and vacated the citation and order. 

Both these cases turned on the authority ascribed to certain 

remarks made by Congressman Perkins, Chairman of the Committee on 

Education and Labor. These remarks were made after the Conference 

Committee had made its final report and 21 days after the Senate had 

passed the bill. ]_/ In attempting to clarify what he considered to be 

an ambiguity in this aspect of the Conference Report, he stated that: 

Section 103(f) provides that a miner's representative 

* * * shall be given an opportunity to accompany the 

inspector during the physical inspection and pre- and postinspection conferences pursuant to the provisions of subsection (a). Since the conference report reference is 

limited to the inspections conducted pursuant to section 

103(a), and not those pursuant to section 103(g)(l) or 

103(i), the intention of the conference committee is to 

assure that a representative of the miners shall be 

entitled to accompany the federal inspector, including 

pre- and post-conferences, at no loss of pay only during 

the four regular inspections of each underground mine in 

its entirety * * * 

6/ The operator's argument ?roves too much, because if accepted 

it would lead to the conclusion that the miner initially requested 

must accompany the inspector during the whole of the entire mine 

inspection. Recognizing that in many cases such complete inspections take a considerable amount of time, even weeks or months, 

it is unrealistic to assume that one particular miner would be 

assigned to accompany the inspector exclusively, especially considering that no one miner possesses the expertise to assist the 

inspector in investigating all the areas of a large and complex mine. 

7/ The Conference Committee voted to accept the Conference Report on 

October 3, 1977 (Leg. Hist. at 1279), the Senate voted to accept the 

Conference Report on October 6, 1977 (Leg. Hist. at 1347), and a 

Concurrent Resolution to effect corrections--;;; agreed to on 

October 17, 1979 (Leg. Hist. at 1351). It was not until October 27, 

1977, that Congressman Perkins made his remarks to the House. (Leg. 

Hist. at 1354). There is no evidence that Congressman Perkins' gloss 

OU.-Section 103(f) was ever brought to the attention of or approved by 

the Senate. 

1459 
Committee Print, LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND 

HEALTH ACT OF 1977, 95th Cong., 2d Sess (July 1978) at 1357 (hereinafter cited as Leg. Hist.) 

This seemingly unequivocal statement concerning the intended 

scope of section 103(f) was, however, followed by a comparison of the 

cognate provisions of the 1969 Act which indicates some possible confusion on Congressman Perkins' part. He recognized that section 

103(a) of the 1969 Act did not include the provision directing the 

Secretary to "develop guidelines for additional inspections of mines 

based on criteria including, but not limited to, * * * his experience 

under this act and other health and safety laws." (Emphasis added.) 

He then correctly pointed out that the participation right section of 

the 1969 Act, section 103(h), provided that a representative of the 

miners may accompany an inspector on "any" inspection, but that the 

1969 Act did not have a compensation provision. He then went on to 

state: 

Since the conference report does not refer to any 

inspection, as 4id section 103(h) of the 1969 act, but 

rather to an inspection of any mine pursuant to subsection (a), it is the intent of the committee to require 

an opportunity to accompany the inspector at no loss of 

pay only for the regular inspections mandated by subsection (a), and not for the additional inspections 

otherwise required or permitted by the Act. [Emphasis 

added.] 

Leg. Hist. at 1358. 

Thus, a fair reading of the whole of Congressman Perkins' statement concerning the seeming ambiguity found in section 103(f) indicates that his real concern was that the right to pay for exercise of 

1460 
the walkaround right not be extended to the "additional inspections" 

permitted under the new section 103(a), but would be limited to the 

"frequent inspections" authorized and required by the first sentence 

of that section. Thus, it appears that when Congress limited the 

right to pay to inspections "pursuant to subsection (a)," it may have 

intended to exclude from that right inspections made under guidelines 

issued by the Secretary calling for "additional inspections," i·!:_·, 

inspections other than those mandated by the statute. In other words, 

there are two categories of inspections, statutory section 103(a) 

inspections and nonstatutory Secretarial inspections. Congress may 

well have wished to protect the operators from an unlimited expansion 

of the right to pay based on "additional inspections" authorized only 

by the Secretary and particularly where they were for the purpose of 

aiding in the exercise of his responsibilities under "other health 

and safety laws." 

Indeed, the greater weight of the legislative history supports 

this interpretation •. First, it should be noted that the provision at 

issue was included in the Senate version of the bill and the Joint 

Explanatory Statement of the Conference Committee clearly indicates 

that "to encourage miner participation * * * one such representative 

of miners, who is also an employee of the operator, [shall] be paid 

by the operator for his participation in the inspection and conferences. The House amendment did not contain these provisions. The 

conference substitute conforms to the Senate bill." Leg. Hist. at 

1323. It is significant to note that nowhere in the Conference 

1461 
Committee statement is the purported limitation on the compensation right advanced by Congressman Perkins discussed or alluded to. 

In the Senate's consideration of the 1977 Act, miner participation in inspections was recognized as an essential ingredient of a 

workable safety plan. Senator Javits, one of the managers of the bill, 

explained the critical impprtance of the walkaround right as part of a 

comprehensive scheme to improve both safety dnd productivity in the 

mines: 

First, greater miner participation in health and safety 

matters, we believe, is essential in order to increase miner 

awareness of the safety and health problems in the mine, and 

secondly, it is hardly to be expected that a miner, who is 

not in business for himself, should do this if his activities remain uncompensated. 

In addition, there is a general responsibility on the 

operator of the mine imposed by the bill to provide a safe 

and healthful workplace, and the presence of miners or a 

representative of the miners accompanying the inspector is 

an element of the expense of providing a safe and healthful workplace * * * But we cannot expect miners to 

engage in the safety-related activities if they are going 

to do without any compensation, on their own time. If 

miners are going to accompany inspectors, they are going 

to learn a lot about mine safety, and that will be helpful to other employees and to the mine operator. 

In addition, if the worker is along he knows a lot 

about the premises upon which he works and, therefore, the 

inspection can be much more thorough. We want to encourage 

that because we want to avoid, not incur, accidents. So 

paying the worker his compensation while he makes the 

rounds is entirely proper***· We think safe mines are 

more productive mines. So the operator who profits from 

·this production should share in its cost as it bears 

directly upon the productivity as well as the safety of 

the mine***· It seems such a standard business practice that is involved here, and such an element of excellent employee relations, and such an assist to have a 

worker who really knows the mine property go around with 

1462 
an inspector in terms of contributing to the health and 

safety of the operation, that I should think it would be 

highly favored. It seems to me almost inconceivable that 

we could ask the individual to do that, as it were, in 

his own time rather than as an element in the operation of 

the whole enterprise. 

Leg. Hist. at 1054-1055. 

Senator Williams, Chairman of the Committee ori Human Resources, 

also discussed the importance of the walkaround right in the context 

of improving safety consciousness on the part of both miners and 

management: 

It is the Committee's view that such participation will 

enable miners to understand the safety and health requirements of the Act and will enhance miner safety and health 

awareness. To encourage such miner participation it is the 

Committee's intention that the miner who participates in 

such inspection and conferences be fully compensated by the 

operator for the time thus spent. To provide for other than 

full compensation would be inconsistent with the purpose of 

the Act and would unfairly penalize the miner for assisting 

the inspector in performing his duties. 

Leg. Hist. at 616-617. 

In light of the broad policy expressed in the Act of protecting 

miners and making inspections more effective, it is difficult to 

understand why the isolated remarks of Congressman Perkins have been 

accorded so much weight. In contrast, similar remarks by other 

members of the House and Senate are conspicuous by their absence. 

It would seem that if Congress had intended by section 103(f) to 

create two separate categories of statutory walkaround rights, one 

compensable and one non-compensable, there would have been at least 

some debate on this departure from the general scheme of the Act. 

1463 
Otherwise, there exists an arguably invidious discrimination. 

In any event, it is questionable whether resort to legislative 

history has a place in the application of the statutory language in 

question. T.V.A. v. Hill, 437 U.S. 153, 184 n. 29 (1978). On its 

face, section 103(f) is clear and unambiguous, and therefore reliance 

on the explanatory comments of a single Congressman appears unnecessary. Schiaffo v. Helstoski, 492 F.2d 413, 428 (3rd Cir. 1974). 

It has been consistently held that as a matter of statutory construction it is error to place undue emphasis on a portion of the 

legislative history where to do so sacrifices the object of the 

legislation. "Not even formal reports - much less the language of a 

member of a committee - can be resorted to for the purposes of construing a statute contrary to its plain terms." Committee for Humane 

Legislation v. Richardson, 414 F. Supp. 297, 308 (D.D.C. 1976), modified 540 F.2d 1141 (D.C. Cir. 1976); citing Pennsylvania Railroad Com-

~ v. International Coal Mine Company, 230 U.S. 184, 199 (1912); 

F.T.C. v. Manager, Retail Credit Company, 515 F.2d 988, 995 (D.C. Cir. 

1975). It must be remembered that the proper function of legislative 

history is to resolve ambiguity, not to create it. United States v. 

Missouri Pacific Railroad Company, 278 U.S. 269, 278 (1929); 

Montgomery Charter Service v. W.M.A.T.A., 325 F.2d 230, 233 (D.C. Cir. 

1963); Elm City Broadcasting Corporation v. United States, 235 F.2d 

811, 816 (D.C. Cir. 1956). 

1464 
It should be noted that these sections of the Mine Safety Act 

serve a broad remedial purpose, and as such should be given a liberal 

construction, and any asserted exceptions to those provisions should 

be given a strict, narrow interpretation. Phillips v. Interior Board 

of Mine Operations Appeals, 500 F.2d 772, 782 (D.C. Cir. 1974), cert. 

denied, 430 U.S. 938 (1975). Finally, when a statutory interpretation that promotes safety conflicts with one that serves another purpose, the first must be preferred. District 6, UMWA v. IBMA, 562 F. 

2d 1260, 1265 (D.C. Cir. 1977). 

Accordingly, whether based on an analysis of the relevant legislative history or through application of accepted canons of statutory 

construction, I find that the reference in section 103(f) to inspections "made pursuant to subsection (a)" includes all inspections made 

for the purposes enumerated in the four clauses of the first sentence 

of that subsection, and is not limited to the minimum number of 

inspections of the mine in its entirety mandated by the third sentence 

of that subsection. 

Conclusions of Law 

1. Section 105(c)(l), the discrimination provision of the Act, 

which prohibits any form of interference with the exercise of the 

statutory rights of a miner or representative of miners is a proper 

vehicle for review of an operator's refusal to compensate a representative of miners pursuant to section 103(f). 

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2. The reference in section 103(f) to inspections "made pursuant 

to subsection (a)" includes all inspections made for the purposes enumerated in the four clauses of the first sentence of section 103(a), 

irrespective of whether the particular inspection may have been 

triggered by section 103(i), and is not limited to the minimum number 

of inspections of the mine in its entirety ~andated by the third sentence of section 103(a). 

3. Since the inspection at issue in this proceeding was made for 

the purpose of "obtaining information relating to health and safety 

conditions" including "especially hazardous" conditions authorized by 

both sections 103(a) and (i) of the Act, Mr. Sparks' participation 

was compensable under section 103(f). 

4. Taking into consideration the six criteria for the assessment 

of civil monetary penalties, I find that a penalty for violation of 

ser.tion 103(f) of $100 is consistent with the purposes and policy of 

the Act. 

ORDER 

WHEREFORE, IT IS ORDERED that: 

1. Respondent CEASE AND DESIST from refusing to pay representatives of miners for participating in inspections made for the purposes of obtaining information relating to extrahazardous conditions 

under section 103(i) of the Act. 

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2. On or before Wednesday, October 31, 1979, respondent shall 

pay the civil penalty assessed in the amount of $100. 

3. On or before Wednesday, October 31, 1979, respondent shall 

pay to Applicant, Arnold J. Sparks, Jr., back pay based on his regular 

hourly rate for the period of time involved in the inspection of 

March 28, 1978, with retroactive interest thereon of 9 percent (9%) 

from March 28, 1978, until the date of payment. 

4. Counsel for the parties shall stipulate the dollar amount 

due under paragraph 3 of this order. If they are unable to stipulate 

such amounts within 15 days of this order, counsel may file herein 

proposed amounts due and, if necessary, a hearing shall be held on 

any issues relating to such proposals. 

5. Within 10 days of payment of the amount due under paragraph 

3 of this order, counsel for Applicant shall file herein a Satisfaction of Order reciting the amount pai<l. 

6. Respondent shall, within 15 days of the date of this order, 

post a copy of this decision and order on a bulletin board at the 

Shannon Branch Coal Mine, where notices to miners are normally 

placed, and shall keep it posted there, unobstructed and protected 

from the weather, for a consecutive period of 60 days. 

Finally, it is ORDERED that, ;•~~t to the satisfaction of the 

above, this matter be, and hereby~. Dv. 

Joseph B. Kenne 

Administrative Law 

{lu.s. GOVERNMENT PRINTING OFFICE: 1979-281-729/3308 

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